Sri M. Venkata Ramana

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OS 284/2015

II ADJC/VSP

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: SRI M.VENKATA RAMANA II Addl. District Judge, Visakhapatnam.

Tuesday, the 23rd day of April, 2024

O.S.284/2015

Between:

1. Grandhi Nageswara Rao, S/o Pothuraju, aged 46 years, Hindu, Business, R/o Narsipatnam Municipality, Narsipatnam Mandal, Visakha District.

2. Durga Nagesh, S/o Seetaramachandramurthy, aged 50 years, Hindu, Business, R/o Chintapalli, Chintapalli Mandal, Visakhapatnam District.

...Plaintiffs

And :

Adapureddy Marideswara Rao, S/o Suryanarayana @ Sourinaidu, 46 years, Hindu, Advocate and Business, R/o 15th Ward, Dr.No.31-4-41, Ammavari Veedhi, Visakhapatnam.

...Defendant

The suit coming on for final hearing on 04-03-2024 in the presence of Sri M.B.Krishna Rao & S.V.Vijay Prasad, Advocates for the plaintiff and Sri R.Krishna Murthy & L.S.Naidu, Advocates for defendant, having stood for consideration to this day, the court delivered the following:

J U D G M E N T

1.This suit is filed praying the Court to direct the defendant to execute a registered sale deed as per the terms of the Agreement of Sale deed dated 25.04.2012 and if the defendant failed to execute the registered sale deed, this

Court may kindly be pleased to register the sale deed and in alternative, if for any reason the Court thinks that the relief of Specific Performance cannot be granted, to direct the defendant to refund the amount of Rs.10,49,999/- along with interest @ 24% per annum since 12.06.2012 till date.

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2.The gist of the contents of the plaint is as follows:

That the defendant is the absolute owner of the suit schedule property and he had acquired title over the suit schedule property under the cover of registered Will dated 23.09.2005 (Document No.365 of 2005) executed by his father Adapureddy Suryanarayana @ Sourinaidu) who acquired the title under link document i.e. registered Gift Settlement deed bearing Document

No.1975/1979. The defendant in order to meet his necessities i.e. discharging of sundry debts and to meet his family expenses had offered to sell the suit schedule property to the plaintiffs @ Rs.3,20,000/- per cent and plaintiffs readily accepted. In pursuance of their oral agreement, the defendant executed an agreement of sale in favour of the plaintiffs on 25.04.2012 and as per the demand of the defendant, the plaintiffs paid Rs.9,99,999/- towards advance sale consideration to the defendant. As per the terms of agreement of sale dated 25.04.2012, the defendant agreed to execute a registered sale deed as and when the plaintiffs ready with the balance sale consideration of Rs.53,50,001/- within 50 days from the date of execution of agreement of sale by leaving the R & B road site and measuring the land. It is further submitted that though there is no averment with regard to delivery of property in the agreement of sale, the villagers and neighbouring persons including defendant are very well aware of the same. Since the date of agreement of sale, the plaintiffs are always ready and willing to get a sale deed executed by the defendant and the plaintiffs demanded the defendant to receive the balance sale consideration and to execute a registered sale deed in their favour. The defendant used to procrastinate the same by saying that he will execute the sale deed within short time and there is no urgency for registration. The plaintiffs under an impression 3

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II ADJC/VSP that the defendant would execute the registered sale deed as and when required and plaintiffs believed the words of the defendant. It is further submitted that while things stand so, the defendant on 12.06.2012 requested the plaintiffs to pay Rs.50,000/- as he fell sick and he was in urgent need of money. The plaintiffs informed the defendant that they are ready with the entire balance consideration and requested the defendant to execute the sale deed by receiving the same.

The defendant stated that he was in urgency and promised the plaintiffs that he would positively execute the sale deed. The defendant received Rs.50,000/- from the plaintiffs within a short period and acknowledged the same by stamped receipt on 12.06.2012. Subsequently, the defendant, in spite of repeated demands made by the plaintiffs has not come forward to execute the sale deed.

It is nextly submitted that in view of the drastic rise in the land values, the defendant has cast his evil eye and did not come forward to execute the registered sale deed. The defendant has been proclaiming that he will sell away the schedule land to 3rd parties and on coming to know the same the plaintiffs approached the defendant and demanded him to execute a sale deed in pursuance of the agreement of sale dated 25.04.2012 and the plaintiff got a legal notice dated 25.04.2015 issued to the defendant, but the defendant did not give any reply. It is further submitted that the plaintiffs reliably learnt that the defendant cheated the plaintiffs and he is trying to cook up the documents to defeat the right of the plaintiffs. As such, it is prayed to decree the suit.

3.The defendant filed written statement wherein he denied all the material contentions and allegations made by the plaintiffs. Apart from denying the material contentions of the plaint, the defendant put forward his positive contentions which are as follows :- 4

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It is mainly submitted that one Gudivada Sanyasi Rao of Pedaboddepalli

Village of Narsipatnam Mandal came to the house of the defendant at

Visakhapatnam and introduced himself as nephew of the defendant’s father and that he is having house nearby land of the defendant. After some time out of long relationship and intimacy, he assured to look after the land of the defendant.

It is further submitted that subsequently, as the Government was computerizing the land records, the defendant gave photo stat copies of link documents and Will and Agreement of sale cum GPA stands in favour of the defendant for submitting to the authority concerned at the time of physical verification. Subsequently,

Sanyasi Rao asked the defendant whether he intended to sell away the property, but the defendant refused to sell the property. After some time Sanyasi Rao came to the house of the defendant along with two persons and introduced them to the defendant as Ansari and Ramesh and said persons offered to pay better and reasonable sale consideration to sell the schedule property to them and defendant refused and replied them that he was intendig to retain the land. It is further submitted that the defendant’s co-son-in-law and his wife and Secretary of Flat Owners Association by name Kumar were also present at that time. It is nextly submitted that taking advantage of the intimacy with the defendant and by virtue of the photostat copies relating to the schedule property in his hand, said Sanyasi Rao and two persons viz., Ansari and Ramesh joined their hands with the plaintiffs (Sic plaintiff) and fabricated the agreement of sale dated 25.04.2012 and alleged stamped receipt i.e. documents 1 and 2 with a malafide intention to grab the suit schedule property of the defendant and the signatures of the defendant were forged on those documents. It is nextly submitted that the defendant never executed any agreement much less agreement of sale dated 5

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II ADJC/VSP 25.04.2012. It is further submitted that the plaintiffs never demanded the defendant at any point of time and they never intimated their readiness and willingness to get the sale deed. It is further submitted that the plaintiffs failed to serve any notice to the defendant but simply filed the present suit on fabricated documents. It is further submitted that the plaintiffs are strangers to the contract and the defendant never came in contact with the plaintiffs at any point of time.

It is further submitted that the defendant reserves his right to file an additional written statement after ascertaining the culprits who helped plaintiffs in filing the suit. Partition suit bearing O.S.No.109/2012 is pending on the file of Senior Civil

Judge, Narsipatnam and the Hon’ble Senior Civil Judge has granted interim

injunction in I.A.499/2012 over the property restraining the defendant from alienating the suit schedule property. it is prayed to dismiss the suit.

4.Subsequent to the amendment of the suit, the defendant filed additional written statement. In the Additional Written Statement, the defendant stated that the amended figures mentioned in the fair copy of the plaint as well as original plaint are not at all true and correct and the same are created and invented for the purpose of the suit. It is further submitted that the plaintiffs had made all the amendments with a malafide intention. It is nextly submitted that it is well settled law that the law helps only those who are diligent and comes to the

Court with clean hands. It is prayed to dismiss the suit.

5.Basing on the pleadings of both the sides, this Court framed the following issues :-

1.Whether the plaintiff is entitled for Specific Performance of suit Agreement of Sale dated 25.04.2012 ?

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2.Whether the plaintiff is entitled to alternative relief of recovery of amount as prayed for ?

3.To what relief ?

6.To prove the claim of the plaintiffs, P.W.1 to P.W.4 are examined and Ex.A1 to Ex.A5 are marked. On behalf of the defendant, D.W.1 and D.W.2 are examined and Ex.B1 and Ex.B2 are marked.

7.Heard both sides.

8.P.W.1 filed chief examination affidavit wherein he stated in support of all the contents of the plaint. He stated that the defendant is absolute owner of the suit schedule property and he got the title byway of Gift Settlement deed executed by father of the defendant. It is further stated that in order to meet his family expenses and to discharge debts, the defendant offered to sell the suit schedule property to the plaintiffs @ Rs.3,20,000/- per cent and the plaintiffs readily accepted. It is further stated that on 25.04.2012, the defendant executed an agreement of sale and obtained advance sale consideration to the tune of

Rs.9,99,999/-. The plaintiffs agreed to repay the balance sale consideration of

Rs.54,00,001/- within 50 days from the date of execution of agreement of sale.

The plaintiffs are ready and willing to pay the balance sale consideration and obtain registered sale deed from the defendant. It is further stated that the plaintiffs demanded the defendant to receive balance sale consideration and execute the registered sale deed. It is nextly stated that subsequently, on 12.06.2012 the defendant received Rs.50,000/- from the plaintiffs as he was in urgent need of money. It is further stated that in view of the drastic rise in the value of the lands, the defendant did not come forward to execute the registered 7

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II ADJC/VSP sale deed. As such, the plaintiffs got legal notice issued on 24.02.2015 to the defendant, but the defendant refused to receive the same. It is further stated that the plaintiffs came to know that the defendant is planning to alienate the suit schedule property to 3rd parties. It is nextly stated that Boddu Ramesh and

S.K.Ansari were present at the time of execution of agreement of sale and one

Ch.Karunakara Rao scribed the agreement of sale. He prayed the Court to pass the decree.

9.P.W.2 and P.W.3 filed chief examination affidavits wherein they stated to corroborate the evidence of P.W.1 on all material facts. They stated that the defendant came forward to sell the suit schedule property @ Rs.3,20,000/- per cent, executed an agreement of sale under Ex.A1 and received advance sale consideration of Rs.9,99,999/-. It is further stated that they were present at the time of execution of Ex.A1 agreement of sale and they attested the same. They further stated that Ex.A1 was prepared by Ch.Karunakara Rao. They further stated that on 12.06.2012, the defendant received Rs.50,000/- from the plaintiffs in their presence.

10.P.W.4 deposed that he scribed Ex.A1 sale agreement and he prepared it.

He further stated that he was present when the defendant agreed to sell the suit schedule property to him to the plaintiffs. And he further stated about title of the plaintiff over suit schedule property. He further stated that the defendant agreed to sell the property @ Rs.3,20,000/- per cent.

11.D.W.1 deposed that there is no any privity of contract between him and the plaintiffs and the plaintiffs are strangers to the contract and that he never came in contract with the plaintiffs and he had never seen them at any point of time.

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He further deposed that one Gudivada Sanyasi Rao of Pedaboddepalli Village of

Narsipatnam Mandal had come to his house at Visakhapatnam and introduced himself as the nephew of his father and stated that he is having house near land of the defendant. It is further stated that after some time out of long relationship and intimacy, said Sanyasi Rao assured this witness to look after the land of the defendant. It is further stated that the government started computerizing the land records as such he gave photostat copies of link documents and Will and

Agreement of sale cum-General Power of Attorney which stands in favour of this witness to Sanyasi Rao for submitting the same to the authority concerned. It is nextly stated that subsequently said Sanyasi Rao asked him whether he intended to sell the property, but this witness refused to sell the property. It is nextly stated that Sanyasi Rao came to his house along with Ansari and Ramesh and said two persons offered to pay better and reasonable sale consideration and asked him to sell the suit schedule property, but he (this witness) refused to sell the property. It is further stated that taking advantage of intimacy with him and by virtue of the photostat copies relating to the schedule property, Sanyasi Rao,

Ansari and Ramesh colluded with the plaintiffs and fabricated the Agreement of

Sale dated 25.04.2012 and stamped receipt. And it is further stated that he never executed any agreement of sale and stamped receipt. It is nextly stated that the plaintiffs never demanded him at any point of time intimating to execute registered sale deed and they never expressed their readiness and willingness to get the sale deed and that the plaintiffs failed to serve any notice to this witness.

It is further stated that his sister filed suit for partition in O.S.109/2012 and Senior

Civil Judge’s Court, Narsipatnam has granted interim injunction in I.A.499/2012

restraining the defendants therein from alienating the property including the suit 9

OS 284/2015

II ADJC/VSP schedule property. He marked Ex.B1 and Ex.B2.

12.D.W.2/Padala Trinadh Kumar deposed that he is 3rd party to the suit proceedings and that he is resident of Flat No.4-A, Subhedhar Residency, Opp.

Police Quarters, Allipuram, Visakhapatnam and he is secretary of flat owners association. He further stated that Mr.Adapureddy Marideswara Rao (defendant herein) who is resident of Flat No.1-D of Skubhedhar Residency used to come to him to discuss the issues pertaining to the parking of the vehicles. And it is further stated that in the first week of March 2012, one Sanyasi Rao, Ansari and

Ramesh came to the house of defendant and he was present along with defendant when they came there. He further stated that Sanyasi Rao introduced

Ansari and Ramesh to the defendant and those two persons offered to pay better and reasonable sale consideration to the defendant and asked him to sell the property and defendant refused to sell the property. It is further stated that he was present when conversation took place between the defendant on one hand and Sanyasi Rao, Ansari and Ramesh on the other. He further stated that subsequently the defendant vacated his flat and shifted his residence to

Pattabhireddy gardens, Visakhapatnam.

13.After thorough and careful examination and scrutiny of the entire material on record, I am of the view that there is necessity for framing of one more issue.

As such, Additional issue is framed as follows :-

Additional Issue :-

Whether the Agreement of Sale dated 25.04.2012 is forged and fabricated as claimed by the defendant ?

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14.On perusal of the entire material on record, I am of the view that the plaintiffs and defendant are well aware of the circumstances which required this

Court to frame additional issue. As such, I am of the view that there is no need of giving opportunity to either side for adducing any evidence or advancing further arguments on Additional Issue. As such, I proceed to decide additional issue as if it is originally framed.

15.For the sake of convenience, the Court intends to decide the issue No.1,

Issue No.2 and Additional Issue together.

16.Heard the counsel for the plaintiffs and defendant. Both counsel for plaintiffs and defendant filed written arguments. Counsel for plaintiffs mainly contended that the oral evidence of P.W.1 to P.W.4 which is corroborated by the documentary evidence categorically and sufficiently proved that the defendant received advance sale consideration of Rs.9,99,999/- under Ex.A.1 and he also received Rs.50,000/- under Ex.A2. It is further submitted that though the defendant contended that Ex.A1 and Ex.A2 are forged and fabricated documents, he failed to establish his contention. He further submitted that the defendant has not taken any steps to send Ex.A1 and Ex.A2 to handwriting expert to prove that they are forged ones. And it is further contended that the plaintiffs are always ready and willing to perform their part of contract by paying balance sale consideration and obtain registered sale deed from the defendant. It is further submitted that though the counsel for the defendant cross-examined P.W.1 to

P.W.4, he has not elicited any grave or glaring discrepancies or infirmities in the evidence of P.W.1 to P.W.4.

17.On the other hand, counsel for defendant mainly contended that the 11

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II ADJC/VSP evidence of P.W.1 to P.W.4 is consisting of discrepancies and contradictions, as such their evidence cannot be believed. It is further contended that the evidence of D.W.1 and D.W.2 established that Ex.A1 and Ex.A2 are forged and fabricated documents. As such, the plaintiffs failed to prove their case. He further submitted that the plaintiffs failed to establish that they have been ready and willing to perform their part of contract. It is further submitted that the evidence of P.W.1 failed to show that plaintiffs have been ready and willing to pay the balance sale consideration as allegedly agreed in Ex.A1.

18.Perused the entire material on record consisting of pleadings of both the sides, oral evidence and documentary evidence adduced by the plaintiffs and defendant. The oral arguments and written arguments of counsel for the plaintiffs and defendant are also taken into consideration. After thorough and careful examination and scrutiny of the entire material on record and after considering the arguments of both the sides, I am of the view that there is no sufficient force in the contention of counsel for the defendant vis-a-vis Ex.A1 and

Ex.A2. As rightly contended by the counsel for the plaintiffs, the oral evidence of

P.W.1 to P.W.4 categorically and sufficiently established that the defendant received Rs.9,99,999/- on 25.04.2012 and executed Ex.A1 agreement of sale.

Though the counsel for the defendant cross-examined P.W.1 to P.W.4, he has not elicited any grave or glaring discrepancies or infirmities or contradictions in their evidence. I do not find any reason to disbelieve the oral evidence of P.W.1 to

P.W.4 which is corroborated by the documentary evidence Ex.A1. As rightly contended by the counsel for the plaintiffs, the evidence of P.W.1 to P.W.4 is very much cogent and trustworthy. The evidence of P.W.1 is corroborated by the oral evidence of P.W.2 to P.W.4. It may be true, there are some minor discrepancies in 12

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II ADJC/VSP the evidence of P.W.1 to P.W.4 on non-vital aspects, but this Court cannot give much consideration to minor variations. When the evidence of P.W.1 to P.W.4 is corroborated by convincing, cogent and strong documentary evidence i.e. Ex.A1,

I am of the view that their evidence cannot be disbelieved only basing on the minor variations in their evidence. More over, it is the case of the defendant that

Ex.A1 and Ex.A2 are forged and fabricated documents. Mere making allegation by the defendant that Ex.A1 and Ex.A2 are forged documents is not at all sufficient. The defendant has not taken any steps to send Ex.A1 and Ex.A2 to any handwriting expert to prove his plea of forgery. In the cross-examination,

D.W.1 stated that he has to take advice from his counsel for taking steps to send

Ex.A1 and Ex.A2 to the handwriting expert. But he has not taken any steps for sending those documents to the handwriting expert. He further admitted that he has not given any report to the Police against the plaintiffs alleging that his signatures are forged in Ex.A1 and Ex.A2. As per the contents of Ex.A1 and

Ex.A2, the defendant received Rs.10,49,999/-. When it is the contention and allegation of the defendant that his signatures are forged in Ex.A1 and Ex.A2, there is heavy burden on him to prove his contention by seeking opinion of the handwriting expert vis-a-vis signatures appearing in Ex.A1 and Ex.A2. For the reasons best known to the defendant, he has not taken any steps. In view of the foregoing discussion, I hold that the agreement of sale dated 25.04.2012 is not at all forged as contended by the defendant and I further hold that Ex.A1 and Ex.A2 are true and valid documents.

19.When we come to the first issue, I am of the view that there is sufficient force in the contention of counsel for the defendant. Though the plaintiffs pleaded that they have been ready and willing to perform their part of contract, 13

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II ADJC/VSP they failed in establishing the same. It is well established principle of law that in a suit of Specific Performance of contract, the plaintiffs must not only aver in the plaint their readiness and willingness to perform the part of contract, but also establish that the plea by evidence right from entering into the contract till filing of the suit and even thereafter till the delivery of the judgment. In the case on hand, the plaintiffs, though pleaded that they are ready and willing to perform their part of contract, they failed to establish their contention by adducing convincing and trustworthy evidence. P.W.1 in his cross-examination stated that he has not filed any proof that he is possessing the balance sale consideration with him after the date 25.04.2012 till today (by the date of giving of his evidence). He further stated that at present he is not possessing the amount of balance of sale consideration in his account. And he nextly stated that he has not taken any Demand Draft for the amount of balance sale consideration in favour of the defendant at any time after 25.04.2012. For better appreciation, the relevant portion of the evidence of P.W.1 is reproduced hereunder :- “At present, I am not possessing the amount of balance consideration in my Bank Account. I have not taken any Demand Draft for the amount of balance sale consideration in favour of the defendant at any time, after 25.04.2012.”

20.The above admissions made by P.W.1 create grave doubt about the version of the plaintiffs that they have been ready and willing to perform their part of contract. More over, the suit is filed by the two plaintiffs, but 2nd plaintiff did not choose to adduce any evidence and he did not come to witness box.

21.The Hon’ble Supreme Court of India held in a case Urvasi Aggarwal

(since deceased) through LRs. And another Vs. Kushagr Ansal

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(successor in interest of erstwhile Defendant No.1 Mrs. Suraj Kumari)

and others reported in 2019 (2) ALT 219 (SC) that “The Courts below have found that the Plaintiffs failed to prove their readiness and willingness to perform their part of the Agreement. The failure on the part of the Plaintiffs in not paying the monthly instalments of Rs.7,000/-, not collecting the rent from the tenant on the ground floor, not paying the house tax etc., and not taking any action for eviction of the tenant on the ground floor are some of the points held against the Plaintiffs by the Courts below which show that they were not ready and willing to perform their part of the Agreement. There is no compelling reason to re-examine the said findings of fact by the Courts below in exercise of our jurisdiction under Article 136 of the Constitution of India. We are in agreement with the view of the Courts below that the Plaintiffs have not proved their readiness and willingness to perform their part of the Agreement and, therefore, are not entitled to a decree of specific performance. “

22.In another judgment, the Hon’ble Supreme Court of India held in a case

Venkatalakshmi Vs. K.Raju and others reported in 2019 (5) ALT 173 (SC)

that “ 9. It is crucial to note that as against the consideration of Rs.1,19,500/- only Rs.5,000/- were paid as earnest money on 16.07.1980. A finding of fact recorded by the High Court was to the effect that the Plaintiff had failed to prove that the time to complete the transaction was extended vide

Exts.7 to 10. We have gone through the appreciation of evidence in that behalf and do not find any error. Once the theory that time for completion of transaction was extended gets demolished, the argument that there was readiness and willingness on part of the Plaintiff also gets completely 15

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II ADJC/VSP weakened. Thus, the conclusions arrived at by the High Court are not in any way incorrect to justify interference in jurisdiction under Article 136(1) of the Constitution. “

23.In another judgment the Hon’ble High court of Judicature at Hyderabad for the State of Telangana and the State of Adhra Pradesh held in a case Saladi

Suryanarayana Vs. Evani Suryanarayana Sastry and others reported in

2020 (3) ALT 528 (TS & AP) that “Therefore, issues 4, 5 and 6 are held against he appellant/plaintiff. Even if the case set up by the defendants is that the agreement Ex.A.1 cancelled is not really proved, the fact remains that the plaintiff failed to discharge the burden that is cast upon him. The continuous readiness and willingness which is necessary is not borne out by the record. This Court on the ultimate analysis concurs with the finding of the lower Court on issues 4, 5 and 6.

As far as issue No.7 is concerned, it is contended that the 12th respondent is a bona fide purchaser for the value. This Court has already come to a conclusion that the cancellation of Ex.A.1 is not proved. Therefore, the further conduct of the defendants/respondents in alienating property treating the agreement as cancelled cannot be sustained. This Court also agrees with the finding of the lower Court that 12th defendant is not a bona fide purchaser for the value. However, in view of the findings of this Court and in line with the judgments of the Hon'ble Supreme Court of India that the readiness and willingness is not really established, this Court is of the opinion that there are no merits in the appeal. “

24.All the above decisions are squarely applicable to the facts and circumstances of the case on hand. The plaintiffs also failed to establish that they have been ready and willing to perform their part of contract and by paying balance sale consideration. After execution of Ex.A1 agreement of sale dated 25.04.2012, the plaintiffs kept quiet for long period of nearly 3 years. Only on 16

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II ADJC/VSP 24.02.2015 they issued notice to the defendant. The plaintiffs failed to give explanation for not demanding the defendant to receive balance sale consideration and execute sale deed in their favour within reasonable time.

25.In view of the foregoing discussion and in view of the legal position laid down by the Hon’ble Supreme Court of India and Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in

(1) Urvasi Aggarwal (since deceased) through LRs. And another Vs.

Kushagr Ansal (successor in interest of erstwhile Defendant No.1 Mrs.

Suraj Kumari) and others reported in 2019 (2) ALT 219 (SC),

(2) Venkatalakshmi Vs. K.Raju and others reported in 2019 (5) ALT

173 (SC) and (3) Saladi Suryanarayana Vs. Evani Suryanarayana Sastry and others reported in 2020 (3) ALT 528 (TS & AP), I hold that the plaintiffs are not entitled for the relief of Specific Performance of Agreement of Sale dated 25.04.2012. As already mentioned supra, the oral evidence of P.W.1 to P.W.4 and documentary evidence Ex.A1 and Ex.A2 proved that the plaintiffs paid

Rs.9,99,999/- under Ex.A.1 and Rs.50,000/- under Ex.A2. At the cost of repetition, the Court wants to say that the defendant miserably failed to prove his contention that Ex.A1 and Ex.A2 are forged and fabricated documents. The plaintiffs sought for alternative relief of refund of Rs.10,49,999/- and they also sought for interest @ 24% per annum. After considering the entire material on record, I am of the view that the plaintiff are entitled for refund of Rs.10,49,999/-.

I further hold that the plaintiffs are entitled to interest @ 18 % per annum from the date of agreement of sale dated 25.04.2012 till the date of decree and I further hold that the plaintiffs are entitled for simple interest @ 6% per annum 17

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II ADJC/VSP from the date of decree till the date of realization. Thus issues 1 and 2 and

Additional issue are answered.

26.In the result, the suit is decreed with costs for Rs.10,49,999/- along with simple interest @ 18% per annum from 25.04.2012 till the date of decree and the defendant is further directed to pay interest @ 6% per anum from the date of decree till the date of realization.

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

me in the open court this the 23rd day of April, 2024.

SD/- M.VENKATA RAMANA

II Additional District Judge Visakhapatnam

APPENDIX OF EVIDENCE

No. of witnesses examined For Plaintiffs :

P.W.1 – G.Nageswara RaoD.W.1 – A.Marideswara Rao P.W.2 – B.RameshD.W.2 – P.Triadh Kumar P.W.3 – Sk.Ansari P.W.4 – Ch.Karunakara Rao No. of exhibits marked For Plaintiffs :

Ex.A1 - Agreement of sale dated 25.04.2012 Ex.A2 - Receipt for Rs.50,000/- dated 12.06.2012 (Subject to proof and payment of stamp duty if any as the learned counsel for the defendants objected stating that Rs.1100/- has to be collected treating it as an agreement).

Ex.A3 – Legal notice date 24.02.2015 Ex.A4 – Postal receipts dated 25.02.2015 Ex.A5 – Returned unserved notice

For defendant :

Ex.B1 – Certified copy of the plaint in OS.109/2012 on the file of Senior Civil

Judge’s Court, Narsipatnam

Ex.B2 – Copy of order passed in I.A.499/2019 in O.S.109/2012

SD/- M.VENKATA RAMANA

II ADJ/VSP 18

OS 284/2015

II ADJC/VSP

Date of Presentation : 24.04.2015 Date of filing : 27.04.2015

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: SRI M.VENKATA RAMANA II Addl. District Judge, Visakhapatnam.

Tuesday, the 23rd day of April, 2024

O.S.284/2015

Between:

1. Grandhi Nageswara Rao, S/o Pothuraju, aged 46 years, Hindu, Business, R/o Narsipatnam Municipality, Narsipatnam Mandal, Visakha District.

2. Durga Nagesh, S/o Seetaramachandramurthy, aged 50 years, Hindu, Business, R/o Chintapalli, Chintapalli Mandal, Visakhapatnam District.

...Plaintiffs

And :

Adapureddy Marideswara Rao, S/o Suryanarayana @ Sourinaidu, 46 years, Hindu, Advocate and Business, R/o 15th Ward, Dr.No.31-4-41, Ammavari Veedhi, Visakhapatnam.

...Defendant

This suit is filed praying the Court to direct the defendant to execute a registered sale deed as per the terms of the Agreement of Sale deed dated 25.04.2012 and if the defendant failed to execute the registered sale deed, this Court may kindly be pleased to register the sale deed and in alternative, if for any reason the Court thinks that the relief of Specific Performance cannot be granted, to direct the defendant to refund the amount of Rs.10,49,999/- along with interest @ 24% per annum since 12.06.2012 till date.

The value of the suit for the purpose of court fee and jurisdiction is Rs.64,00,000/- and a Court fee of Rs.66,426/- is paid under Section 39 of APCF & SV Act, vide challan No.2, dt.24.04.2015 of State Bank of Hyderabad, District Court Complex, Visakhapatnam.

The suit coming on for final hearing on 04-03-2024 in the presence of Sri M.B.Krishna Rao & S.V.Vijay Prasad, Advocates for the plaintiff and 19

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Sri R.Krishna Murthy & L.S.Naidu, Advocates for defendant, having stood for consideration to this day, the Court doth order ; and

D E C R E E

1. that the suit be and the same is hereby decreed ;

2.that the defendant be and the same is hereby directed to pay a sum of Rs.10,49,999/- along with simple interest @ 18% per annum from 25.04.2012 till the date of decree ;

3.that the defendant be and is hereby further directed to pay interest @ 6% per anum from the date of decree till the date of realization ; and

4.that the defendant do pay to the plaintiffs a sum of Rs. - NIL - towards costs of the suit.

(Copy of plaint schedule and valuation slip are attached to the decree).

Given under my hand and the seal of the Court, this the 23rd day of April, 2024.

SD/- M.VENKATA RAMANA

II Addl. District Judge

Visakhapatnam

MEMORANDUM OF COSTS

PLAINTIFF: DEFENDANTS:

No costs memo is filed.Stamp on vakalat :2-00 Advocate fee : 25,000-00 Clerical charges 500-00 ------------------- Costs certified : 25,502-00 -------------------

SD/- M.VENKATA RAMANA

II ADJ/VSP

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I AMSJC/VSP

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri M.Venkata Ramana, I Addl. Metropolitan Sessions Judge, Visakhapatnam

Tuesday, this the 23rd day of April, 2024

CRL. APPEAL NO.85/2018

From which Court the appeal is : Chief Metropolitan Magistrate Court, preferred Visakhapatnam

No. of the case in that Court:C.C. 28/2010

No. of the Appeal:Crl. Appeal No.85/2018

Name & Description of the : AccusedDasamanthula Appala Narasamma, W/o late Bandi Yerrayya, Hindu, aged 68 years, Retired employee, residing at D.No.17-3-2, KGH Ward Boy Lane, Maharanipeta, Visakhapatnam – 530002.

Name & Description of the Respondent: 1. State rep. by Asst. Public Prosecutor.

2. Vadamodula Srinivas, S/o late Dasu, Hindu, aged 39 years, residing at D.No.19- 2-2, Manthavari Street, Kothasalipeta, Visakhapatnam – 530002.

Sentence and law under which : Under Section 138 of NI Act it was imposed in the lower courtAccused is found guilty for the offence punishable under Section 138 of NI Act and she is convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of six months and she also directed to pay a fine of Rs.50,000/- (Rupees Fifty thousand only), in default simple imprisonment for two months, out of which Rs.40,000/- shall be given to the complainant after appeal or appeal time. The said Rs.40,000/- shall be taken into consideration as contemplated under Section 357 (5) of Cr.P.C.

Whether confirmed, modified or reversed. If modified, the modification:Confirmed

Date of presentation :23-02-2018

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Date of filing :23-02-2018

Notice issued by Court to appear : 26-02-2018

Bail bonds if he has been let out on bail : On bail

Appellant ordered to appear :14-06-2018

Hearing- :02-04-2024

Order :23-04-2024

The appeal coming on for final hearing on 02-04-2024 in the presence of Dy. Legal Aid Defense Counse for the appellant/accused and Sri Kandregula Jagadheswara Rao, Public prosecutor for R1/State and Sri P.R.R, Advocate for the Respondent, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.This appeal is filed aggrieved by the judgment of the Chief Metropolitan

Magistrate Court, Visakhapatnam passed in C.C.28/2010. For the sake of

convenience the parties to the appeal hereinafter are referred to as arrayed in

C.C.28/2010. This appellant/accused was convicted by the trial court for the offence punishable under Section 138 of Negotiable Instruments Act and she was sentenced to under go Rigorous Imprisonment for a period of 6 months and she was also directed to pay a fine of Rs.50,000/-, in default simple imprisonment for 2 months. The trial Court further ordered that out of fine amount, Rs.40,000/- shall be paid to the complainant as compensation.

2.The case of the complainant is as follows:

That the accused 1 and 2 are mother and daughter to each other and they have jointly borrowed an amount of Rs.4,50,000/- from the complainant on 10.06.2007 for the purpose of meeting their family expenses and discharging of

3

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sundry debts and immediately they executed a promissory note agreeing to repay the borrowed money along with interest @ 24 % per annum. In spite of repeated demands made by the plaintiff, both accused failed to repay the borrowed money. At last both accused issued cheque for Rs.4,00,000/- bearing

No.402361 dated 03.12.2009 in favour of the complainant drawn on Andhra

Bank, K.G.Hospital Branch, Visakhapatnam towards part payment of the Principal and Interest. The complainant deposited the said cheque with his banker, but the banker of the accused dishonoured the chque with an endorsement “Insufficient

Funds”. As such, the complainant got notice issued to the accused and the same was received by the accused. But they failed to pay the money covered by the cheque. As such, the complaint is filed.

3.To prove the guilt of the accused 1 and 2, P.W.1 and P.W.2 are examined.

Exs.P1 to P16 are marked. On behalf of the defense, neither oral evidence nor documentary evidence is adduced.

4.After examination and considering the oral evidence and documentary evidence adduced by the complainant, the trial Court found the accused No.1 guilty for the offence punishable under Sec.138 of Negotiable Instrument Act and she was convicted. Hence, A1 preferred this appeal.

5.Now the points for consideration are:

1) Whether the complainant proved the guilt of the accused for the offence under Section 138 of NI Act beyond reasonable doubt?

2) Whether there are any grounds to interfere with the findings of the trial Court?

6.Heard the counsel for appellant/accused. The counsel for appellant/accused contended that P.W.1 is not cross-examined. As such, the case

4

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can be remanded to the trial Court. The counsel for appellant further contended that the trial court has not appreciated the evidence of P.W.1 on proper lines and wrongly convicted the accused 1 and 2. It is further submitted that the trial Court failed to observe that the complainant has no capacity to lend Rs.4,00,000/-. And it is further submitted that though there are contradictions in the evidence of

P.W.1 and P.W.2, the trial Court came to wrong conclusion.

7.The arguments of counsel for respondent/complainant are treated as heard.

8.Perused the entire material on record consisting of oral evidence and documentary evidence adduced by the complainant. After thorough and careful examination and scrutiny of the entire material on record and after taking the arguments of counsel for appellant into consideration, I am of the view that there is no sufficient force in the contention of counsel for appellant/accused. I do not find sufficient force in the contention of counsel for appellant who contended that

P.W.1 is not cross-examined. The evidence of P.W.1 shows that P.W.1 is cross- examined by counsel for defense in the trial Court. Though the counsel for defense in the trial Court cross-examined P.W.1, he has not elicited any grave or glaring discrepancies or infirmities or contradictions in the evidence of P.W.1. I do not find any sufficient reason to disbelieve the oral evidence of P.W.1 which is corroborated by documentary evidence Ex.P1 to Ex.P14. It may be true, there are some minor discrepancies in the evidence of P.W.1 on non-vital aspects.

Those minor discrepancies cannot based to disbelieve the version of the complainant. I do not find sufficient force in the contention of counsel for appellant who further argued that the complainant failed to establish his source of income and capacity. It may be true, P.W.1 admitted that he is not an Income

5

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Tax Assessee. Only because of the reason, the complainant is not an Income Tax

Assessee, it cannot be said that he has no any financial capacity. As per the case of the complainant, the transaction took place way back in the year 2007 and the complainant was working as Tailor and getting income of Rs.35,000/- to

Rs.40,000/- per month. At the cost of repetition, the court wants to say that the oral evidence of P.W.1 which is corroborated by strong, convincing and cogent documentary evidence. The line of cross-examination of P.W.1 shows that the accused borrowed some money and executed promissory note in favour of the complainant. The counsel for defense in the trial Court put suggestion to P.W.1 that the complainant obtained Ex.P1 promissory note. At one stage, counsel for defense put suggestion that A1 (appellant) alone issued cheque. As such it can safely be said that the accused in one way or other way accused admitted that she executed the pronote and issued cheque. Once the execution of pronote and cheque is admitted the presumptions under Sections 118 and 139 of Negotiable

Instrument Act come into play. It may be true, the presumptions under Sections 118 and 139 of Negotiable Instrument Act are rebuttable ones. But the accused has not rebutted the presumptions covered by Sections 118 and 139 of

Negotiable Instrument Act. Counsel for defense has not elicited any material in the cross-examination of P.W1 to rebut the presumptions covered by Sections 118 and 139 of Negotiable Instrument Act.

9.In view of the foregoing discussion, I hold that the complainant successfully established the guilt of the accused for the offence punishable under Section 138 of Negotiable Instrument Act beyond all reasonable doubt. As such, I do not find any sufficient reason to interfere with the judgment passed by the trial court. As such, I hold that there are no any merits in the appeal.

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10. In the result, the appeal is dismissed by confirming the conviction and sentence passed against the accused/appellant in C.C.28/2010 dated 18.12.2017 on the file of Chief Metropolitan Magistrate Court, Visakhapatnam. The trial court is directed to take steps for serving sentence by the accused.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court on this the 23rd day of April, 2024.

Sd/- M.VENKATA RAMANA

I ADDL. METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Appellant For Respondent

No additional oral or documentary evidence was adduced on either side.

SD/- M.VENKATA RAMANA

I AMSJ/VSP Copy to:

(1) The Chief Metropolitan Magistrate Court, Visakhapatnam. (2) The accused

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CRL. APL. NO.85/2018

I AMSJC/VSP

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri M.Venkata Ramana, I Addl. Metropolitan Sessions Judge, Visakhapatnam

Tuesday, this the 23rd day of April, 2024

CRL. APPEAL NO.85/2018

From which Court the appeal is : Chief Metropolitan Magistrate Court, preferred Visakhapatnam

No. of the case in that Court:C.C. 28/2010

No. of the Appeal:Crl. Appeal No.85/2018

Name & Description of the : AccusedDasamanthula Appala Narasamma, W/o late Bandi Yerrayya, Hindu, aged 68 years, Retired employee, residing at D.No.17-3-2, KGH Ward Boy Lane, Maharanipeta, Visakhapatnam – 530002.

Name & Description of the Respondent: 1. State rep. by Asst. Public Prosecutor.

2. Vadamodula Srinivas, S/o late Dasu, Hindu, aged 39 years, residing at D.No.19- 2-2, Manthavari Street, Kothasalipeta, Visakhapatnam – 530002.

Sentence and law under which : Under Section 138 of NI Act it was imposed in the lower courtAccused is found guilty for the offence punishable under Section 138 of NI Act and she is convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of six months and she also directed to pay a fine of Rs.50,000/- (Rupees Fifty thousand only), in default simple imprisonment for two months, out of which Rs.40,000/- shall be given to the complainant after appeal or appeal time. The said Rs.40,000/- shall be taken into consideration as contemplated under Section 357 (5) of Cr.P.C.

Whether confirmed, modified or reversed. If modified, the modification:Confirmed

Date of presentation :23-02-2018

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Date of filing :23-02-2018

Notice issued by Court to appear : 26-02-2018

Bail bonds if he has been let out on bail : On bail

Appellant ordered to appear :14-06-2018

Hearing- :02-04-2024

Order :23-04-2024

The appeal coming on for final hearing on 02-04-2024 in the presence of Dy. Legal Aid Defense Counse for the appellant/accused and Sri Kandregula Jagadheswara Rao, Public prosecutor for R1/State and Sri P.R.R, Advocate for the Respondent, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.This appeal is filed aggrieved by the judgment of the Chief Metropolitan

Magistrate Court, Visakhapatnam passed in C.C.28/2010. For the sake of

convenience the parties to the appeal hereinafter are referred to as arrayed in

C.C.28/2010. This appellant/accused was convicted by the trial court for the offence punishable under Section 138 of Negotiable Instruments Act and she was sentenced to under go Rigorous Imprisonment for a period of 6 months and she was also directed to pay a fine of Rs.50,000/-, in default simple imprisonment for 2 months. The trial Court further ordered that out of fine amount, Rs.40,000/- shall be paid to the complainant as compensation.

2.The case of the complainant is as follows:

That the accused 1 and 2 are mother and daughter to each other and they have jointly borrowed an amount of Rs.4,50,000/- from the complainant on 10.06.2007 for the purpose of meeting their family expenses and discharging of

3

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sundry debts and immediately they executed a promissory note agreeing to repay the borrowed money along with interest @ 24 % per annum. In spite of repeated demands made by the plaintiff, both accused failed to repay the borrowed money. At last both accused issued cheque for Rs.4,00,000/- bearing

No.402361 dated 03.12.2009 in favour of the complainant drawn on Andhra

Bank, K.G.Hospital Branch, Visakhapatnam towards part payment of the Principal and Interest. The complainant deposited the said cheque with his banker, but the banker of the accused dishonoured the chque with an endorsement “Insufficient

Funds”. As such, the complainant got notice issued to the accused and the same was received by the accused. But they failed to pay the money covered by the cheque. As such, the complaint is filed.

3.To prove the guilt of the accused 1 and 2, P.W.1 and P.W.2 are examined.

Exs.P1 to P16 are marked. On behalf of the defense, neither oral evidence nor documentary evidence is adduced.

4.After examination and considering the oral evidence and documentary evidence adduced by the complainant, the trial Court found the accused No.1 guilty for the offence punishable under Sec.138 of Negotiable Instrument Act and she was convicted. Hence, A1 preferred this appeal.

5.Now the points for consideration are:

1) Whether the complainant proved the guilt of the accused for the offence under Section 138 of NI Act beyond reasonable doubt?

2) Whether there are any grounds to interfere with the findings of the trial Court?

6.Heard the counsel for appellant/accused. The counsel for appellant/accused contended that P.W.1 is not cross-examined. As such, the case

4

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I AMSJC/VSP

can be remanded to the trial Court. The counsel for appellant further contended that the trial court has not appreciated the evidence of P.W.1 on proper lines and wrongly convicted the accused 1 and 2. It is further submitted that the trial Court failed to observe that the complainant has no capacity to lend Rs.4,00,000/-. And it is further submitted that though there are contradictions in the evidence of

P.W.1 and P.W.2, the trial Court came to wrong conclusion.

7.The arguments of counsel for respondent/complainant are treated as heard.

8.Perused the entire material on record consisting of oral evidence and documentary evidence adduced by the complainant. After thorough and careful examination and scrutiny of the entire material on record and after taking the arguments of counsel for appellant into consideration, I am of the view that there is no sufficient force in the contention of counsel for appellant/accused. I do not find sufficient force in the contention of counsel for appellant who contended that

P.W.1 is not cross-examined. The evidence of P.W.1 shows that P.W.1 is cross- examined by counsel for defense in the trial Court. Though the counsel for defense in the trial Court cross-examined P.W.1, he has not elicited any grave or glaring discrepancies or infirmities or contradictions in the evidence of P.W.1. I do not find any sufficient reason to disbelieve the oral evidence of P.W.1 which is corroborated by documentary evidence Ex.P1 to Ex.P14. It may be true, there are some minor discrepancies in the evidence of P.W.1 on non-vital aspects.

Those minor discrepancies cannot based to disbelieve the version of the complainant. I do not find sufficient force in the contention of counsel for appellant who further argued that the complainant failed to establish his source of income and capacity. It may be true, P.W.1 admitted that he is not an Income

5

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I AMSJC/VSP

Tax Assessee. Only because of the reason, the complainant is not an Income Tax

Assessee, it cannot be said that he has no any financial capacity. As per the case of the complainant, the transaction took place way back in the year 2007 and the complainant was working as Tailor and getting income of Rs.35,000/- to

Rs.40,000/- per month. At the cost of repetition, the court wants to say that the oral evidence of P.W.1 which is corroborated by strong, convincing and cogent documentary evidence. The line of cross-examination of P.W.1 shows that the accused borrowed some money and executed promissory note in favour of the complainant. The counsel for defense in the trial Court put suggestion to P.W.1 that the complainant obtained Ex.P1 promissory note. At one stage, counsel for defense put suggestion that A1 (appellant) alone issued cheque. As such it can safely be said that the accused in one way or other way accused admitted that she executed the pronote and issued cheque. Once the execution of pronote and cheque is admitted the presumptions under Sections 118 and 139 of Negotiable

Instrument Act come into play. It may be true, the presumptions under Sections 118 and 139 of Negotiable Instrument Act are rebuttable ones. But the accused has not rebutted the presumptions covered by Sections 118 and 139 of

Negotiable Instrument Act. Counsel for defense has not elicited any material in the cross-examination of P.W1 to rebut the presumptions covered by Sections 118 and 139 of Negotiable Instrument Act.

9.In view of the foregoing discussion, I hold that the complainant successfully established the guilt of the accused for the offence punishable under Section 138 of Negotiable Instrument Act beyond all reasonable doubt. As such, I do not find any sufficient reason to interfere with the judgment passed by the trial court. As such, I hold that there are no any merits in the appeal.

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10. In the result, the appeal is dismissed by confirming the conviction and sentence passed against the accused/appellant in C.C.28/2010 dated 18.12.2017 on the file of Chief Metropolitan Magistrate Court, Visakhapatnam. The trial court is directed to take steps for serving sentence by the accused.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court on this the 23rd day of April, 2024.

Sd/- M.VENKATA RAMANA

I ADDL. METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Appellant For Respondent

No additional oral or documentary evidence was adduced on either side.

SD/- M.VENKATA RAMANA

I AMSJ/VSP Copy to:

(1) The Chief Metropolitan Magistrate Court, Visakhapatnam. (2) The accused

1

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I AMSJC/VSP

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri M.Venkata Ramana, I Addl. Metropolitan Sessions Judge, Visakhapatnam

Tuesday, this the 23rd day of April, 2024

CRL. APPEAL NO.85/2018

From which Court the appeal is : Chief Metropolitan Magistrate Court, preferred Visakhapatnam

No. of the case in that Court:C.C. 28/2010

No. of the Appeal:Crl. Appeal No.85/2018

Name & Description of the : AccusedDasamanthula Appala Narasamma, W/o late Bandi Yerrayya, Hindu, aged 68 years, Retired employee, residing at D.No.17-3-2, KGH Ward Boy Lane, Maharanipeta, Visakhapatnam – 530002.

Name & Description of the Respondent: 1. State rep. by Asst. Public Prosecutor.

2. Vadamodula Srinivas, S/o late Dasu, Hindu, aged 39 years, residing at D.No.19- 2-2, Manthavari Street, Kothasalipeta, Visakhapatnam – 530002.

Sentence and law under which : Under Section 138 of NI Act it was imposed in the lower courtAccused is found guilty for the offence punishable under Section 138 of NI Act and she is convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of six months and she also directed to pay a fine of Rs.50,000/- (Rupees Fifty thousand only), in default simple imprisonment for two months, out of which Rs.40,000/- shall be given to the complainant after appeal or appeal time. The said Rs.40,000/- shall be taken into consideration as contemplated under Section 357 (5) of Cr.P.C.

Whether confirmed, modified or reversed. If modified, the modification:Confirmed

Date of presentation :23-02-2018

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Date of filing :23-02-2018

Notice issued by Court to appear : 26-02-2018

Bail bonds if he has been let out on bail : On bail

Appellant ordered to appear :14-06-2018

Hearing- :02-04-2024

Order :23-04-2024

The appeal coming on for final hearing on 02-04-2024 in the presence of Dy. Legal Aid Defense Counse for the appellant/accused and Sri Kandregula Jagadheswara Rao, Public prosecutor for R1/State and Sri P.R.R, Advocate for the Respondent, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.This appeal is filed aggrieved by the judgment of the Chief Metropolitan

Magistrate Court, Visakhapatnam passed in C.C.28/2010. For the sake of

convenience the parties to the appeal hereinafter are referred to as arrayed in

C.C.28/2010. This appellant/accused was convicted by the trial court for the offence punishable under Section 138 of Negotiable Instruments Act and she was sentenced to under go Rigorous Imprisonment for a period of 6 months and she was also directed to pay a fine of Rs.50,000/-, in default simple imprisonment for 2 months. The trial Court further ordered that out of fine amount, Rs.40,000/- shall be paid to the complainant as compensation.

2.The case of the complainant is as follows:

That the accused 1 and 2 are mother and daughter to each other and they have jointly borrowed an amount of Rs.4,50,000/- from the complainant on 10.06.2007 for the purpose of meeting their family expenses and discharging of

3

CRL. APL. NO.85/2018

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sundry debts and immediately they executed a promissory note agreeing to repay the borrowed money along with interest @ 24 % per annum. In spite of repeated demands made by the plaintiff, both accused failed to repay the borrowed money. At last both accused issued cheque for Rs.4,00,000/- bearing

No.402361 dated 03.12.2009 in favour of the complainant drawn on Andhra

Bank, K.G.Hospital Branch, Visakhapatnam towards part payment of the Principal and Interest. The complainant deposited the said cheque with his banker, but the banker of the accused dishonoured the chque with an endorsement “Insufficient

Funds”. As such, the complainant got notice issued to the accused and the same was received by the accused. But they failed to pay the money covered by the cheque. As such, the complaint is filed.

3.To prove the guilt of the accused 1 and 2, P.W.1 and P.W.2 are examined.

Exs.P1 to P16 are marked. On behalf of the defense, neither oral evidence nor documentary evidence is adduced.

4.After examination and considering the oral evidence and documentary evidence adduced by the complainant, the trial Court found the accused No.1 guilty for the offence punishable under Sec.138 of Negotiable Instrument Act and she was convicted. Hence, A1 preferred this appeal.

5.Now the points for consideration are:

1) Whether the complainant proved the guilt of the accused for the offence under Section 138 of NI Act beyond reasonable doubt?

2) Whether there are any grounds to interfere with the findings of the trial Court?

6.Heard the counsel for appellant/accused. The counsel for appellant/accused contended that P.W.1 is not cross-examined. As such, the case

4

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I AMSJC/VSP

can be remanded to the trial Court. The counsel for appellant further contended that the trial court has not appreciated the evidence of P.W.1 on proper lines and wrongly convicted the accused 1 and 2. It is further submitted that the trial Court failed to observe that the complainant has no capacity to lend Rs.4,00,000/-. And it is further submitted that though there are contradictions in the evidence of

P.W.1 and P.W.2, the trial Court came to wrong conclusion.

7.The arguments of counsel for respondent/complainant are treated as heard.

8.Perused the entire material on record consisting of oral evidence and documentary evidence adduced by the complainant. After thorough and careful examination and scrutiny of the entire material on record and after taking the arguments of counsel for appellant into consideration, I am of the view that there is no sufficient force in the contention of counsel for appellant/accused. I do not find sufficient force in the contention of counsel for appellant who contended that

P.W.1 is not cross-examined. The evidence of P.W.1 shows that P.W.1 is cross- examined by counsel for defense in the trial Court. Though the counsel for defense in the trial Court cross-examined P.W.1, he has not elicited any grave or glaring discrepancies or infirmities or contradictions in the evidence of P.W.1. I do not find any sufficient reason to disbelieve the oral evidence of P.W.1 which is corroborated by documentary evidence Ex.P1 to Ex.P14. It may be true, there are some minor discrepancies in the evidence of P.W.1 on non-vital aspects.

Those minor discrepancies cannot based to disbelieve the version of the complainant. I do not find sufficient force in the contention of counsel for appellant who further argued that the complainant failed to establish his source of income and capacity. It may be true, P.W.1 admitted that he is not an Income

5

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I AMSJC/VSP

Tax Assessee. Only because of the reason, the complainant is not an Income Tax

Assessee, it cannot be said that he has no any financial capacity. As per the case of the complainant, the transaction took place way back in the year 2007 and the complainant was working as Tailor and getting income of Rs.35,000/- to

Rs.40,000/- per month. At the cost of repetition, the court wants to say that the oral evidence of P.W.1 which is corroborated by strong, convincing and cogent documentary evidence. The line of cross-examination of P.W.1 shows that the accused borrowed some money and executed promissory note in favour of the complainant. The counsel for defense in the trial Court put suggestion to P.W.1 that the complainant obtained Ex.P1 promissory note. At one stage, counsel for defense put suggestion that A1 (appellant) alone issued cheque. As such it can safely be said that the accused in one way or other way accused admitted that she executed the pronote and issued cheque. Once the execution of pronote and cheque is admitted the presumptions under Sections 118 and 139 of Negotiable

Instrument Act come into play. It may be true, the presumptions under Sections 118 and 139 of Negotiable Instrument Act are rebuttable ones. But the accused has not rebutted the presumptions covered by Sections 118 and 139 of

Negotiable Instrument Act. Counsel for defense has not elicited any material in the cross-examination of P.W1 to rebut the presumptions covered by Sections 118 and 139 of Negotiable Instrument Act.

9.In view of the foregoing discussion, I hold that the complainant successfully established the guilt of the accused for the offence punishable under Section 138 of Negotiable Instrument Act beyond all reasonable doubt. As such, I do not find any sufficient reason to interfere with the judgment passed by the trial court. As such, I hold that there are no any merits in the appeal.

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10. In the result, the appeal is dismissed by confirming the conviction and sentence passed against the accused/appellant in C.C.28/2010 dated 18.12.2017 on the file of Chief Metropolitan Magistrate Court, Visakhapatnam. The trial court is directed to take steps for serving sentence by the accused.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court on this the 23rd day of April, 2024.

Sd/- M.VENKATA RAMANA

I ADDL. METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Appellant For Respondent

No additional oral or documentary evidence was adduced on either side.

SD/- M.VENKATA RAMANA

I AMSJ/VSP Copy to:

(1) The Chief Metropolitan Magistrate Court, Visakhapatnam. (2) The accused

1

CRL. APL. NO.85/2018

I AMSJC/VSP

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri M.Venkata Ramana, I Addl. Metropolitan Sessions Judge, Visakhapatnam

Tuesday, this the 23rd day of April, 2024

CRL. APPEAL NO.85/2018

From which Court the appeal is : Chief Metropolitan Magistrate Court, preferred Visakhapatnam

No. of the case in that Court:C.C. 28/2010

No. of the Appeal:Crl. Appeal No.85/2018

Name & Description of the : AccusedDasamanthula Appala Narasamma, W/o late Bandi Yerrayya, Hindu, aged 68 years, Retired employee, residing at D.No.17-3-2, KGH Ward Boy Lane, Maharanipeta, Visakhapatnam – 530002.

Name & Description of the Respondent: 1. State rep. by Asst. Public Prosecutor.

2. Vadamodula Srinivas, S/o late Dasu, Hindu, aged 39 years, residing at D.No.19- 2-2, Manthavari Street, Kothasalipeta, Visakhapatnam – 530002.

Sentence and law under which : Under Section 138 of NI Act it was imposed in the lower courtAccused is found guilty for the offence punishable under Section 138 of NI Act and she is convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of six months and she also directed to pay a fine of Rs.50,000/- (Rupees Fifty thousand only), in default simple imprisonment for two months, out of which Rs.40,000/- shall be given to the complainant after appeal or appeal time. The said Rs.40,000/- shall be taken into consideration as contemplated under Section 357 (5) of Cr.P.C.

Whether confirmed, modified or reversed. If modified, the modification:Confirmed

Date of presentation :23-02-2018

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Date of filing :23-02-2018

Notice issued by Court to appear : 26-02-2018

Bail bonds if he has been let out on bail : On bail

Appellant ordered to appear :14-06-2018

Hearing- :02-04-2024

Order :23-04-2024

The appeal coming on for final hearing on 02-04-2024 in the presence of Dy. Legal Aid Defense Counse for the appellant/accused and Sri Kandregula Jagadheswara Rao, Public prosecutor for R1/State and Sri P.R.R, Advocate for the Respondent, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.This appeal is filed aggrieved by the judgment of the Chief Metropolitan

Magistrate Court, Visakhapatnam passed in C.C.28/2010. For the sake of

convenience the parties to the appeal hereinafter are referred to as arrayed in

C.C.28/2010. This appellant/accused was convicted by the trial court for the offence punishable under Section 138 of Negotiable Instruments Act and she was sentenced to under go Rigorous Imprisonment for a period of 6 months and she was also directed to pay a fine of Rs.50,000/-, in default simple imprisonment for 2 months. The trial Court further ordered that out of fine amount, Rs.40,000/- shall be paid to the complainant as compensation.

2.The case of the complainant is as follows:

That the accused 1 and 2 are mother and daughter to each other and they have jointly borrowed an amount of Rs.4,50,000/- from the complainant on 10.06.2007 for the purpose of meeting their family expenses and discharging of

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sundry debts and immediately they executed a promissory note agreeing to repay the borrowed money along with interest @ 24 % per annum. In spite of repeated demands made by the plaintiff, both accused failed to repay the borrowed money. At last both accused issued cheque for Rs.4,00,000/- bearing

No.402361 dated 03.12.2009 in favour of the complainant drawn on Andhra

Bank, K.G.Hospital Branch, Visakhapatnam towards part payment of the Principal and Interest. The complainant deposited the said cheque with his banker, but the banker of the accused dishonoured the chque with an endorsement “Insufficient

Funds”. As such, the complainant got notice issued to the accused and the same was received by the accused. But they failed to pay the money covered by the cheque. As such, the complaint is filed.

3.To prove the guilt of the accused 1 and 2, P.W.1 and P.W.2 are examined.

Exs.P1 to P16 are marked. On behalf of the defense, neither oral evidence nor documentary evidence is adduced.

4.After examination and considering the oral evidence and documentary evidence adduced by the complainant, the trial Court found the accused No.1 guilty for the offence punishable under Sec.138 of Negotiable Instrument Act and she was convicted. Hence, A1 preferred this appeal.

5.Now the points for consideration are:

1) Whether the complainant proved the guilt of the accused for the offence under Section 138 of NI Act beyond reasonable doubt?

2) Whether there are any grounds to interfere with the findings of the trial Court?

6.Heard the counsel for appellant/accused. The counsel for appellant/accused contended that P.W.1 is not cross-examined. As such, the case

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can be remanded to the trial Court. The counsel for appellant further contended that the trial court has not appreciated the evidence of P.W.1 on proper lines and wrongly convicted the accused 1 and 2. It is further submitted that the trial Court failed to observe that the complainant has no capacity to lend Rs.4,00,000/-. And it is further submitted that though there are contradictions in the evidence of

P.W.1 and P.W.2, the trial Court came to wrong conclusion.

7.The arguments of counsel for respondent/complainant are treated as heard.

8.Perused the entire material on record consisting of oral evidence and documentary evidence adduced by the complainant. After thorough and careful examination and scrutiny of the entire material on record and after taking the arguments of counsel for appellant into consideration, I am of the view that there is no sufficient force in the contention of counsel for appellant/accused. I do not find sufficient force in the contention of counsel for appellant who contended that

P.W.1 is not cross-examined. The evidence of P.W.1 shows that P.W.1 is cross- examined by counsel for defense in the trial Court. Though the counsel for defense in the trial Court cross-examined P.W.1, he has not elicited any grave or glaring discrepancies or infirmities or contradictions in the evidence of P.W.1. I do not find any sufficient reason to disbelieve the oral evidence of P.W.1 which is corroborated by documentary evidence Ex.P1 to Ex.P14. It may be true, there are some minor discrepancies in the evidence of P.W.1 on non-vital aspects.

Those minor discrepancies cannot based to disbelieve the version of the complainant. I do not find sufficient force in the contention of counsel for appellant who further argued that the complainant failed to establish his source of income and capacity. It may be true, P.W.1 admitted that he is not an Income

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Tax Assessee. Only because of the reason, the complainant is not an Income Tax

Assessee, it cannot be said that he has no any financial capacity. As per the case of the complainant, the transaction took place way back in the year 2007 and the complainant was working as Tailor and getting income of Rs.35,000/- to

Rs.40,000/- per month. At the cost of repetition, the court wants to say that the oral evidence of P.W.1 which is corroborated by strong, convincing and cogent documentary evidence. The line of cross-examination of P.W.1 shows that the accused borrowed some money and executed promissory note in favour of the complainant. The counsel for defense in the trial Court put suggestion to P.W.1 that the complainant obtained Ex.P1 promissory note. At one stage, counsel for defense put suggestion that A1 (appellant) alone issued cheque. As such it can safely be said that the accused in one way or other way accused admitted that she executed the pronote and issued cheque. Once the execution of pronote and cheque is admitted the presumptions under Sections 118 and 139 of Negotiable

Instrument Act come into play. It may be true, the presumptions under Sections 118 and 139 of Negotiable Instrument Act are rebuttable ones. But the accused has not rebutted the presumptions covered by Sections 118 and 139 of

Negotiable Instrument Act. Counsel for defense has not elicited any material in the cross-examination of P.W1 to rebut the presumptions covered by Sections 118 and 139 of Negotiable Instrument Act.

9.In view of the foregoing discussion, I hold that the complainant successfully established the guilt of the accused for the offence punishable under Section 138 of Negotiable Instrument Act beyond all reasonable doubt. As such, I do not find any sufficient reason to interfere with the judgment passed by the trial court. As such, I hold that there are no any merits in the appeal.

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10. In the result, the appeal is dismissed by confirming the conviction and sentence passed against the accused/appellant in C.C.28/2010 dated 18.12.2017 on the file of Chief Metropolitan Magistrate Court, Visakhapatnam. The trial court is directed to take steps for serving sentence by the accused.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court on this the 23rd day of April, 2024.

Sd/- M.VENKATA RAMANA

I ADDL. METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Appellant For Respondent

No additional oral or documentary evidence was adduced on either side.

SD/- M.VENKATA RAMANA

I AMSJ/VSP Copy to:

(1) The Chief Metropolitan Magistrate Court, Visakhapatnam. (2) The accused