Sri N.Ganesh Babu, Prl. District Judge

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IN THE COURT OF THE DISTRICT JUDGE, ANANTHAPURAMU

PRESENT: SRI N.GANESH BABU,

District Judge, Ananthapuramu

Monday, the 30 th day of November, 2015

A.S.No. 01/2015

BETWEEN:

S.Nagamuni S/o S.Nagappa, Major,Hindu, Business, residing at D.No6-4- 809, Venkatarao Nagar, Ananthapuramu.

... Appellant/ Defendant

And

K.Vijaya Kumar S/o K.P.Thimmarayappa, 30 years,Hindu, Cultivation, Theetakallu village, BramhasamudramMandal, Ananthapuramu District

... Respondent/ Plaintiff

On Appeal against the Decree and Judgment Dated 10.04.2014 passed in

O.S.No.190/2011 on the file of Addl. Sunior Civil Judge, Ananthapuramu and made

in between:-

K.Vijaya Kumar S/o K.P.Thimmarayappa, 30 years,Hindu, Cultivation, Theetakallu village, BramhasamudramMandal, Ananthapuramu District

... Plaintiff

And

S.Nagamuni S/o S.Nagappa, Major,Hindu, Business, residing at D.No6-4- 809, Venkatarao Nagar, Ananthapuramu.

... Defendant

This appeal is coming on 07.11.2015 for final hearing before me in the presence of Sri B.Viswanath, Advocate for the appellant/defendant and of Sri Allu

Narayanappa, Advocate for respondent/plaintiff, upon hearing both sides and upon perusing the material available on record and the matter having stood over till this day for consideration, this court delivered the following :-

J U D G M E N T

This appeal suit is filed by the unsuccessful defendant being aggrieved by the judgment and decree of the court of Additional Senior Civil Judge,

Ananthapuramu passed in OS.190/2011 dated 10.4.2014 directing him to refund

Rs.2,00,000/- with costs and interest at 12% p.a. from 17.2.2011 till the date of 2 decree and at 6% p.a. thereon till the date of realization being found the appellant/defendant at fault for non-compliance of terms and conditions of the agreement of sale dated 21.10.2010.

2. The parties herein after to be referred as arrayed in the suit as „plaintiff‟ and „defendant‟ for the convenience sake.

3. The gist of the case of the plaintiff is that the defendant is the absolute owner of the plaint schedule property i.e., 0.04 cents out of Ac.13-89 cents in

Sy.No.179/2 situated within the RD of Ananthapuram situated within the revenue village limits of Rachanapalli, Ananthapuramu district under registered sale deed vide document No.12827/2010 and in that capacity, the defendant agreed to sell the plaint schedule property to the plaintiff at Rs.2,00,000/- per cent and received advance amount of Rs.2,00,000/- and entered into agreement of sale in favour of the plaintiff on 21.10.2010. The remaining balance was agreed to be paid by the plaintiff on or before 21.12.2010 and the time is not the essence of contract. The plaintiff is ever ready and willing to perform his part of contract. But plaintiff came to know that the defendant suppressed the fact that as there is a dispute between the original owners and the suit property was never laid any layout as approved and the plaintiff demanded the defendant to refund the advance amount by issuing legal notice, but the defendant did not make any payment. Hence the plaintiff is constrained to file the present suit for refund of Rs.2,00,000/- with interest at 24% p.a.

4. The case of the defendant as culled out from his written statement apart from stating that the suit is not maintainable either in law or on facts and that the plaintiff is put to strict proof of all the averments in the plaint that it is a fact that the defendant is absolute owner of the plaint schedule property and he has agreed to sell the same to plaintiff at the rate of Rs.2,00,000/- per cent and the defendant received advance amount of Rs.2,00,000/- on 21.10.2010 and executed agreement of sale in favour of the plaintiff. But it is incorrect that time is not essence of contract. As per the terms and conditions of the agreement dated 21.10.2010, the time is essence of contract and plaintiff shall pay the balance sale consideration on or before 20.12.2010, but the plaintiff deliberately failed to pay the balance sale 3 consideration within the time stipulated, though the defendant is always ready and willing to perform his part of contract and discharge the obligation. Infact the plaintiff verified all the documents before entering into the agreement with the defendant. There is no bonafides on the part of the plaintiff and he has not placed any material to show that the property is in dispute and raised all these allegations with intention to damage the reputation of the defendant in the society. The plaintiff did not come forward for registration on or before 20.12.2010 inspite of assurance given by him which clearly and categorically shows that the plaintiff is not in a position to pay the balance sale consideration. The plaintiff is not having capacity and he entered into a purchase agreement with intention to resale the suit property for higher rate. Whenever the real estate business comes down, he is not in a position to pay the balance sale consideration and not in a position to discharge his obligation and not in a position to register the suit property in his favour after paying the balance sale consideration. Since the plaintiff is not in a position to pay the balance sale consideration, he came with false and frivolous allegations and filed the present suit. Infact before issuing the legal notice, the plaintiff approached the defendant and requested that he is not in a position to pay the balance sale consideration and not in a position to get registration in his favour and the defendant refused the same and advised him to discharge his obligation as per the terms and conditions of agreement. There is no cause of action for the suit and the alleged cause of action made in the plaint is denied. Hence the suit filed by the plaintiff is liable to be dismissed.

5. Upon the aforesaid pleadings of the parties and on perusal of the documents, the trail Court has framed the following issues:-

1) Whether the agreement dated 21.10.2010 is true, value and binding?

2) Whether the plaintiff is entitled for refund of amount under agreement of sale?

3) To what relief?

6. In order to substantiate the suit claim, the plaintiff examined himself as

PW.1 and one K.Bheemalinga as PW.2 and got marked Exs.A.1 to A.3 before the trial court, whereas the defendant examined as DW.1 and got marked Exs.B1 and

B2 to falsify the suit claim.

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7. Upon consideration of the oral and documentary evidence and in the light of rival contentions of both sides, the finding of the trial court is that as per the terms of the agreement and understanding of the parties that the defendant has to approach the plaintiff at first instance and get measured the land and also as to show the Panchayat approval. Inspite of seeking for Panchayat approval and clarification of the dispute in between the defendant and his vendors, the defendant failed to place any material that there are no disputes and also failed to place

Panchayat approval before this court and further that no inordinate delay in taking the action for seeking return of the amount by the plaintiff. Accordingly decreed the suit vide judgment dated 10.4.2014 which is challenged by way of the present appeal on the following amongst other grounds.

i) The judgment and decree passed by the trial court is not sustainable either in law or on facts of the case.

ii) The trial court failed to separate the grain from chap and passed Judgment taking into consideration of presumptions.

iii) The trial court ought to have seen that the plaintiff was come to the court with clean hands and burden of proving the pleadings are on the plaintiff and he cannot depend upon the weakness of the defendant‟s case and that the plaintiff totally failed to prove his case, but the trial court mechanically without appreciating the case erroneously decreed the suit.

iv) The trial court ought to have seen that there is a clear stipulated time mentioned in Ex.A.1 relating to payment of balance sale consideration, the plaintiff absolutely failed to pay the balance sale consideration within the stipulated time, then he has no voice to raise any plea against the defendant.

v) The trial court ought to have seen that the plaintiff absolutely failed to prove that the property is in dispute has not filed any document in support of the same. The trial court failed to observe the said fact and passed the decree against the defendant.

5 vi)The trial court ought to have seen that the evidence of Pws.1 and 2 itself no clarity or relevant to their pleadings and the plaintiff has absolutely failed to prove his case.

8. Heard arguments of the learned counsel for appellant/defendant and respondent/plaintiff.

9. Now the point for consideration is:-

Whether the plaintiff substantiated his case for refund of the

advance amount under the agreement f sale dated 21.10.2010

from the defendant, if so, whether the Judgment and Decree of

the trial court is sustainable in law?

10.P O I N T:

Upon considering of the rival contentions and pleadings of the plaintiff and defendant, it is unwarranted on the part of the trial court to frame the 1st issue whether the agreement dated21.10.2010 is true, valid and binding, since the defendant has categorically in explicit terms admitted that he executed agreement of sale ie., Ex.A.1 dated 21.10.2010 in favour of the plaintiff, this court is going to formulate the following points for the effective disposal of this appeal.

1.Whether the plaintiff was/has been ever ready and willing to perform his part of contract under suit agreement dated 21.10.2010?

2.Whether time is the essence of contract under the suit agreement?

3.Whether the plaintiff is entitled for refund of the amount under the suit agreement?

11. POINT NO.1: Whether the plaintiff was/has been ever ready and willing to perform his part of contract under suit agreement dated 21.10.2010?

The main contention of the plaintiff in approaching the present suit for enforcement of the suit agreement for the refund of amount under Ex.A.1 agreement of sale is that it has come to his notice subsequent to the agreement that the schedule property is under litigation believe the real owners and the defendant is also failed to show the schedule property is covered under approved layout of the Gram Panchayat. These are the mandatory conditions to be complied by the defendant before execution of registered sale deed in the place of Ex.A.1 and in this regard the plaintiff has also issued legal notice to the defendant which is marked as Ex.A.2. The defendant is not disputing about the receipt of above legal 6 notice by Ex.A.3 acknowledgment and she got reply notice sent by him marked as

Ex.B.1. Whereas the case of the defendant is that the plaintiff has raised the so called dispute over the schedule property with his vendors and others just for the sake of filing the present suit for refund of money as the market value of the land being sleepily come down and that the plaintiff has no financial capacity to pay the balance sale consideration, thereby he has committed default within the stipulated time under Ex.A.1, then the plaintiff is not entitled to ask for refund amount as the same being forfeited under very same agreement Ex.A.1.

12. It is pertinent to notice that plaintiff has not chosen to mention the nature of the dispute over the schedule property between the original owners. The plaintiff as PW.1 reiterated the plaint averments in his examination in chief. In the cross- examination, the learned counsel for the defendant has succeeded in eliciting from him that he got verified all the related documents prior to Ex.A.1 and only on satisfaction, Ex.A.1 was got executed. Pw.1 stated in his cross-examination that he came to know that the property under Ex.A.1 was under dispute, therefore he sought for correct measurements of the property and as the defendant did not come forward he is seeking the suit amount and that the neighbouring plot owners told him about the dispute in the property. Probably in order to establish the source of information about the dispute over the suit property, the plaintiff might have examined PW.2 Bheemalinga.

13. Before adverting to deal with the evidence of PW.2, it is once again apt to place on record some more admissions on the part of PW.1 viz., he has not filed any other document to show that there is a dispute in the property under Ex.A.1 and that the transactions under Encumbrance Certificate are clearly mentioned and there is no dispute in the same.

14. As seen from the evidence of PW.2, out rightly he is not a neighbor to the plaint schedule property, since he never claimed the same in his evidence.

PW.2 deposed in his evidence that he is doing real estate business at

Ananthapuramu, he used to purchase and sell the house plots on commission. He knows the suit survey number and in that suit survey number, nobody will come forward for purchase of plots due to dispute between the original land owners and 7 the land in said survey number also not made any layout and the roads are adjusted into the plots and that lastly he came to know that due to pending litigation between original land owners, plaintiff (may be defendant) is intended to sell the suit schedule properly immediately after his purchase. The interestedness of PW.2 in PW.1 can be seen from his statement that roads also adjusted into the plots, as the same is not the case of the plaintiff. In the cross-examination, PW.2 stated as if he is residing at Kalyandurg road, Ananthapuram since 3 months.

Earlier he is used to reside at Islapuram and presently he is doing cultivation. He has Ac.1-00 of land. P.W.2 stated that he was not present at the time of entering into the agreement between the plaintiff and defendant. He has no document to show that there is a dispute in the property. P.W.2 has contended that he has not sold nor purchased in the disputed survey number of land. Though it is not the case of the plaintiff, but PW.2 deposed in his cross-examination that as measurements are less this suit is filed. He does not know whether disputed land is approved in the year 1986 by Gram Panchayat.

15. The above cross-examination of PW.2 on behalf of defendant is rather heavily exposed him to say that he has no knowledge about the suit transaction, the location of the suit schedule land and the lis between plaintiff and the defendant over Ex.A.1. It is unfortune situation where the trial court has totally not considered the evidence of PW.2 in the judgment. Anyway the evidence of this PW.2 in the manner in which analyzed by this court as supra which would show his interestedness in PW.1 and virtually he has no idea about the schedule property, as such his evidence is no way helpful to the plaintiff upon his claim that he came to know about the dispute over the suit schedule land between the real owners and infact the plaintiff has miserably failed to prove the existence of the so called dispute over the schedule property. If that been so, it is not open to plaintiff to say that the defendant is not ready and willing to perform his part of contract as he failed to clear the land dispute.

16. It is also the case of the plaintiff that the defendant has failed to show that the schedule property is covered by approved lay out by Gram Panchayat which is also one of the reasons for the defendant to postpone the performance of the contract of registration of the sale deed in the place of Ex.A.1. But as seen from 8

Ex.A.1 agreement that stipulating the terms and conditions to be performed by the plaintiff and defendant, but there is no condition, as such the obligation of the defendant to show that the schedule property is covered in the approved layout of the Gram Panchayat. However for the 1st time plaintiff has raised this issue in his legal notice Ex.A.2. The plaintiff is most uncertain as to the ground on which he wants to seek the refund of the amount under Ex.A.1 by taking different stand at different places taken by him in his cross-examination. At one limb plaintiff deposing that as the schedule property was under dispute, therefore he sought for correct measurements of the property and as the defendant did not come forward for the same, he is seeking the suit amount. In the fag end of the cross- examination, PW.1 stated that he is seeking for return of the amount as the defendant did not measure the land and he has pleaded the same and also got mentioned in Ex.A.2 and told the same to his counsel. PW.1 lastly stated that apart from seeking correct measurements he has no objection to get on with terms under

Ex.A.1. So in these circumstances, court is not inclined to accept the contention of the plaintiff postponement of his obligation to perform his part of contract under

Ex.A.1 i.e., that payment of balance of sale consideration on the pretext that the defendant has failed to prove that the schedule land is covered by approved lay out.

17. The contention of the defendant is that plaintiff has no financial capacity to pay the balance of sale consideration and even just prior to issuance of

Ex.A.2 legal notice, the plaintiff approached him and conceded that he has no financial capacity and asked for refund of the amount. Inspite of this specific allegation admittedly plaintiff has not chosen to come up with documentary evidence either by producing the Bank pass book or by other means to show his financial capacity to pay the balance sale consideration within the stipulated date i.e., 21.12.2010. In this regard, PW.1 stated in his cross-examination that he has got bank account in Syndicate Bank, Bommaganipalli. He has sufficient balance in his bank account. Witness again says the balance will not always be in the Bank.

However, he denied the suggestion that as he has no capacity to pay any amounts under Ex.A.1. So the plaintiff has miserably failed to prove his financial capacity to 9 pay the balance sale consideration amount within the stipulated period under

Ex.A.1.

18. The sum and substance of the aforesaid discussion is that the plaintiff has failed to prove his ready and willingness at all times to perform his part of contract under Ex.A.1 by coming up with balance sale consideration. It is a settled law that court is not expected to introduce any conditions by way of substitute to the terms and conditions in the agreement arrived at between the parties.

19. The learned Addl. Senior Civil Judge has made observation in her

Judgment that when there is obligation cast upon the defendant, the executants of the agreement it is to the understanding of the parties that the defendant has to approach the plaintiff at the first instance and get measured the land and also has to show the panchayat approval. But these observations does not find place in

Ex.A.1. Contrary to the settled law that the burden lies on the plaintiff who approached the court to establish his case, the learned Addl. Senior Civil Judge has drawn the entire burden on the defendant and that too insisting of the negative evidence which cannot be expected in normal circumstances. For instance, it is observed by the trial court that inspite of seeking for Panchayat approval and clarification of the dispute in between the defendant with his vendors, the defendant failed to place any material that there are no disputes and also failed to place Panchayat approval before this court, so as to infer that there is no dispute over the property under Ex.A.1 and also that there is an approved plan over the property. Hence, this point is answered negatively and against the plaintiff.

20. POINTS 2 & 3: Whether time is the essence of contract under the suit agreement?

Whether the plaintiff is entitled for refund of the amount under the suit agreement?

It is an undisputed fact under Ex.A.1 that the plaintiff shall pay the balance sale consideration amount on or before 21.12.2010 and then the defendant has to execute registered sale deed in the place of Ex.A.1 to the plaintiff. Whether the time is the essence of contract or not can be gathered from terms and conditions stipulated under Ex.,A.1 and duty of the plaintiff to perform his part of obligation to pay that balance sale consideration, once again call back on the terms and 10 conditions between the parties under Ex.A.1. It is specifically mentioned in Ex.A.1 that if the plaintiff failed to pay the balance sale consideration within the stipulated time i.e., on or before 20.12.2010, the advance amount paid by him will be forfeited and thereby the agreement stands cancelled. But for the first time the court has come across in continuation to the above default clause in Ex.A.1 that, if the defendant failed to get ready for registration inspite of inviting him by the plaintiff to come for registration along with balance sale consideration amount, he has no objection to execute the sale deed either in favour of the plaintiff or to any person as suggested by him through court. It goes without saying the intention of the plaintiff and defendant herein that time as the essence of contract.

21. In the instant case, admittedly the plaintiff has issued the notice to the defendant under Ex.A.2, two months after the dead line fixed under Ex.A.1. It is not the case of the plaintiff that before expiry of the dead line i.e., 21.12.2010 he has demanded the defendant to receive the balance sale consideration from him nor plaintiff produced any evidence that he has got sufficient financial capacity to pay the balance sale consideration.

22. The learned counsel for the plaintiff has contended that in the case of immovable property, time is not the essence of contract for which reliance is placed on the Judgment of Hon’ble High Court of A.P. in a matter between Daparthi

Seetharamayya and others Vs. Kurukuri Chinna Satyam @ Chinna Sathi

Raju and another 2014 (2) ALT 779 (D.B.) wherein it is held that:

“… Time cannot be treated as essence of contract in relation to contracts for purchase of immovable property except in exceptional cases where the parties express their clear and unequivocal intention in that regard”.

23. But unlike in the referred case, both the plaintiff and defendant herein by adding some more terms in Ex.A.1 regarding the payment of balance of sale consideration showing their very intention that time is the essence of contract. If so, the above judgment of the Hon‟ble High Court of A.P., is not directly helpful to the plaintiff in this regard.

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24. The learned counsel for the plaintiff has placed reliance on the Judgment of Hon’ble High Court of A.P. in a matter between Pundi Govindarajan Vs.

Subas Chandra Sahu 2008(1) ALT 750 wherein it is observed that:

“………A date stipulated in agreement of sale for payment of balance of sale consideration and to get sale deed executed by plaintiff – Amount not so paid – Defendant after that date issued notice to plaintiff to pay balance of sale consideration and get the sale deed executed by the date mentioned therein stipulating that if plaintiff fails to do so, agreement of sale shall stand cancelled – A mention was made therein that time is essence of contract – Inspite of receiving such notice, plaintiff kept quiet –

Silence on his part indicating that he was not ready and willing to perform his part of the contract – Held: In such circumstances of the case, Appellate Court was right in holding that time was essence of contract and that defendant was right in cancelling the agreement by subsequent notice – Appellate Court was right in granting alternate prayer of plaintiff for refund of advance amount”.

25. The learned counsel for the defendant has contended that as there is further condition in Ex.P.1 apart from fixing the date of payment of balance sale consideration, that in the event of failure to pay the amount, the advance amount will be forfeited and vice versa the obligation of the defendant in the event of his failure to comply his part of contract to execute the registered sale deed if the plaintiff approached the court itself would show the intention of both parties that time is essence of contract and as the plaintiff failed to pay the balance sale consideration amount within the stipulated time and even not ready to offer the balance sale consideration amount, within that date, it is nothing but the plaintiff has every not ready and willing to perform his part of contract. In support of the said contention, reliance is placed on the Judgment of the Hon’ble Supreme

Court of India in a matter between Padmakumari Vs. Dasayyan (2015) 0

Supreme (SC) 381 equivalent to (2015) 4 Supreme 467. The Hon‟ble

Supreme Court has taken the view that:

“…. even where the parties have expressly provided that time is the essence of contract, such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was 12 intended to be fundamental; for instance, if the contract were to include clause providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clause would be construed as rendering ineffective the express provision relating to the time being of the essence of contract.”

In the referred case of the Hon‟ble Supreme Court held that:

“…. the learned counsel on behalf of plaintiff contending that the question of payment of balance of sale consideration amount of Rs.63,000/- within 9 months would have arisen after the terms and conditions of the contract agreed upon by the defendant Nos.1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos.1 to 11 themselves have failed to perform their part of the agreement.

The said contention argued on behalf of the plaintiff is unacceptable to show that the question of taking measurement would not arise before the plaintiff performed his part of contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to the defendant Nos.1 to 11 which is very important legal aspect which was required to be considered by the court below at the time of determining the rights of the parties and passed the impugned judgment. The courts below have ignored this important aspect of the matter while answering the contentious issues 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and evidence on record. Accordingly we answered the said issues in favour of defendant Nos.12 to 15 after setting aside the concurrent finding of the fact recorded by the High Court.”

26. In the instant case also, obligation is cast on the plaintiff to pay the balance sale consideration amount on or before 21.12.2010 and the defendant‟s 13 obligation thereafter to get the land measured before proceeding for registration of the land in the place of Ex.A.1. Moreover, in the instant case also, the plaintiff had issued the legal notice Ex.A.2 two months after the above dead line stipulated under Ex.A.1. If that been so, the facts in the instant case are similar to the facts in the referred case of the Hon‟ble Supreme Court and then the finding of the trial court that obligation of payment of balance of sale consideration is only after measuring of the schedule property by the defendant is quite contrary to the terms and conditions of Ex.A.1. As such, it is the plaintiff who has miserably failed to perform his part of contract by not paying the balance sale consideration amount within the stipulated period and upon which inference can be drawn that the plaintiff has been never ready and willing to perform his part of contract under

Ex.A.1.

27. PW.1 has conceded in his cross-examination reiterating the terms and conditions of Ex.A.1 that there is a stipulation under Ex.A.1 that on or before 20.12.2010 he should get registered the property on his expenses and also there is a mention that if such registration is not got made, the advance amount will be forfeited. This condition under Ex.A.1 debars the plaintiff to claim refund of advance. Hence this court is of view that the learned Addl. Senior Civil Judge,

Ananthapuram without proper appreciation of the evidence on record and by drawn certain observations and findings which are contrary to the terms and conditions of

Ex.A.1 which the court is not expected as per settled law, erroneously decreed the suit, as such the same shall be set aside upon the aforesaid situations as observed by this court, more specifically by following the Judgment of Hon’ble Supreme

Court of India in a matter between Padmakumari Vs. Dasayyan (2015) 0

Supreme (SC) 381 equivalent to (2015) 4 Supreme 467 by allowing this appeal, which I do.

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28. In the result, this Appeal Suit is allowed by setting aside the Decree and Judgment passed by the learned Addl. Senior Civil Judge, Ananthapuramu in

OS.No.190/2011 dated 10.4.2014.

Dictated to Stenographer Gr.I, transcribed by her, corrected and pronounced

by me in open court, this the 30 th day of November, 2015.

Sd/- N.Ganesh Babu

District Judge,

Ananthapuramu. // t.c.f.b.o. //

Chief Administrative Officer, Prl.District Court, Ananthapuramu. To

The Addl.Senior Civil Judge, Ananthapuramu. (with L.C.records OS.190/2011 dated 10-04-2014)

IN THE COURT OF THE SESSIONS JUDGE :: ANANTHAPURAMU.

Present : Sri N.Ganesh Babu, Sessions Judge,

Monday, the 30 th day of November, 2015

Crl. Appeal Nos.39/2015

From which Court the appeal Judicial Magistrate of I Class, Kalyanadurg was preferred

No. of the case in that Court CC.No.285/2011

No. of the appeal Crl.A.No.39/2015

Name and description of the Bestarapalli Kalabandi Venkataramana @ appellant. Vadde Veataramudu, 40 years, S/o B.K.Ramappa, Bestharapalli Village, Kundurpi P.S.

Name of description of the The State by S.H.O., Kundrpi P.S. respondents Section of Law, it was U/Sec.409 of IPC imposed by the lower Court. The Judl. I Class Magistrate,

Kalyanadurg, was found him guilty the accused/appellant for the offence U/s 304-A of

IPC and convicted him and sentenced the appellant to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- in default of fine to undergo simple imprisonment for a period of two months.

Further the appellant sentenced to pay fine of Rs.500/- in default of undergo simple imprisonment for a period of two months for the offence punishable U/Sec. 337 IPC.

Whether Confirmed, Reversed

Reversed or Modified if In the result, this criminal appeal is Modified the modification allowed and the conviction and sentences imposed against the appellant/ Accused in judgment dated 04.03.2015 in CC No.285/2011 on the file of Judl. Magistrate of

I Class, Kalyanaudrg, is set aside and the

appellant/accused is acquitted under Section 386 (b) Cr.P.C for the charge U/Sec. 304-A,

337. Accused is set at liberty and he is entitled for refund of the fine amount paid by him in the trial Court. Bail bonds of accused shall stand canceled.

DATES OF

Presentation: 23.03.2015

Filed on : 23.03.2015

Notice issued by the Court : 23.03.2015

Appellant Ordered to appear : 15.06.2015

Hearing : 19.11.2015

Judgment : 30-11-2015

This appeal is coming on 30.11.2015 for final hearing before me in the presence of Sri S.Mohammed Hafeezullah, Advocates for the appellant, and of learned Public Prosecutor for the State, and after hearing their arguments and upon perusing the material available on record and the matter having stood over till this day for consideration, this court delivered the following :

J U D G M E N T

1. This Criminal Appeal is filed by the sole appellant/accused against the conviction and sentence imposed by the court of Judl. I Class Magistrate,

Kalyanadurg, by its judgment dated 04.03.2015 made in CC.285/2011 convicting him U/Sec. 255 (2) Cr.P.C to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- in default of payment of fine to undergo simple imprisonment for a period of two months for the offence punishable U/Sec. 304-A

IPC and further he sentenced to pay fine of Rs.500/- in default of payment of fine to undergo simple imprisonment for a period of two months for the offence punishable U/Sec. 337 IPC.

2. The appellant hereafter is arrayed as „accused‟ and the corresponding party as prosecution for convenience and privity.

3. The gist of the case of the prosecution against the accused through the charge sheet filed by the Sub-Inspector of Police, Kundurpi P.S for the offence

U/Sec. 338 and 304-A IPC that the deceased Appannagari Thippeswamy is own elder brother of informant LW.1/Appannagari Anjaneyulu. LW.2/T.Raghu is son of the deceased, LW.3/ Appannagari Mariyappa is elder brother of the deceased and

LW.4 Appannagari Lalithamma is the wife of the deceased and they are witnesses to the accident. LW.7/M.Siriyamma is injured. The accused is resident of

Bestgarapalli Village and he was a driver of Eicher Van bearing No. KA-11-1089.

On 04.06.2011, at about 6.00 AM, the deceased and LW.1 Appannagari Anjaneyulu left on a Bajaj Kalibar Motor Cycle bearing No.KA-17-Q-2050 and reached

Mahanthapuram village and attended the marriage of his relative. In return journey the deceased and LW.7/M.Siriyamma, left on a Motor cycle from Mahanthapuram village to go to his village via Malyanoor Cross road. At about 12.30 PM, the accused drove the Eachierr Van, proceeding from Seegalapalli Village at high speed in a rash and negligent manner and dashed against the motor cycle of the deceased. As a result, the deceased and the pillion rider LW.7/M.Siriyamma jumped out from the motor cycle and fell down on the road and the left side of the front wheel of the Eachier van ran over the motor cycle. The deceased succumbed to death on the spot and LW.7/ M.Siriyamma sustained bleeding injuries. Due to fear of the accident, the accused ran away leaving the Motor cycle at the place of the accident. LW.1 to LW.6 namely Appannagari Anjineyulu, T.Raghu, A.Mariyappa,

A.Lalithamma, S.T.Thippeswamy and A.P.Thippeswamy, who witnessed the above incident, shifted the injured to hospital and LW.1 came to the police station,

Kundurpi and filed complaint, on which LW.14 registered the case and investigated the matter. During the course of investigation LW.14 examined the witnesses and recorded their statements and conducted inquest over the dead body in the presence of mediators LW.8 to LW.10 viz. G.Thippeswamy, S.K.Sudarshan Reddy and Buddaiahgari Obanna and forwarded the dead body to the Medical Officer,

C.H.C, Kalyanadurg for conducting autopsy and further inspected the scene of offence and drawn rough sketch of scene of offence. On 09.06.2011, at 9.30 AM,

LW.14 arrested the accused and sent him to the court for judicial remand.

LW.11/D.Rajendra Prasad, Medical Officer, who conducted autopsy over the dead body of the deceased and issued P.M certificate opined that the deceased would appear to have been died due to Head injury of grievous in nature, causing massive subdonal hmatoma. LW.12 Dr.Abhinav, Medical Officer, who rendered treatment to

LW.7 and issued wound certificate opined that injuries 1, 2,3 and 5 are simple in nature except injury No.4 is grievous. LW.13.P.Rama Bramhama, Motor Vehicle

Inspector examined and inspected the crime vehicle and issued his report stating the accident occurred not due to any mechanical defects of the vehicle.

4. In order to substantiate its case, the prosecution has examined PWs.1 to 7 and Exs.P.1 to P.7 before the trial court, whereas no defence evidence has let in by the accused.

5. Upon considering of the oral and documentary evidence and the rival contentions of the prosecution and the accused, the finding of the learned Judicial I

Class Magistrate, Kalyanadurg is that the prosecution has established the guilt of accused and found the accused guilty and convicted him as stated supra which is being carried by the accused by way of present appeal challenging on the following amongst other grounds.

i) The conviction and sentence of imprisonment passed by the trial court is contrary to law, weight of evidence and probabilities of the case.

ii) The learned Magistrate ought to have seen that the prosecution miserably failed to establish the ingredients of the offence U/Sec. 304-A, and 337

IPC, so should have acquitted the appellant.

iii) The learned Magistrate ought to have believed the evidence of PW.2, who is injured witness that she does not know the accused and she deposed nothing ill about the appellant in her evidence. The PW.2 neither revealed about the presence the PW.1 at the time of alleged accident nor PW-2 proceeded behind the motor cycle. In cross-examination also she has in clear terms stated that behind our motor cycle jeep of PW.1 did not come. The PW.2 is not even stated the date of the alleged offence. The trial court should have seen that the evidence of PW.1 unerringly established that the appellant is totally innocent of the alleged offence and this is a case of false implication of appellant.

iv) The learned Magistrate ought to have seen that the evidence of the PW.1 is not supported by any other witnesses. The trial court ought to have seen that there is nothing to believe PW.1‟s presence at the time of alleged accident and for accepting his evidence.

v) The learned Magistrate ought to have seen that there is no element of rash and negligent driving. The trial court should have seen that the evidence of the prosecution witnesses should be scrutinized on the anvil of probability; human conduct etc., to arrive at conclusion of guilt and the court should not have adopted a mechanical approach which resulted in failure of justice.

vi) The learned Magistrate totally failed to give reasons for arriving at finding of the guilt of the appellant and that totally failed to see that, the testimony of witnesses bristled with innumerable inconsistencies and improbabilities, which cannot be reconciled in any hypothesis.

vii) The learned Magistrate ought to have seen that none of the witnesses stated any specific overtacts or any specific incident against the appellant with date and time which any establish the case of the prosecution. The entire allegations made against the appellant are bald and cursory.

viii) The learned Magistrate ought to have seen that the version of the investigation officer which is contradictory to the version of other witnesses.

ix) The learned Magistrate ought to have seen that absolutely there is no evidence on record even remotely to show that appellant has committed offence punishable Sec. 304-A, 337 of IPC.

x) The learned Magistrate ought to have seen that the prosecution has totally failed to prove the case beyond the all reasonable doubts against the appellant.

xi) The learned Magistrate ought to have seen that the presence of PW.1 is itself doubtful.

xii) The learned Magistrate ought to have seen that the evidence of the prosecution is mutually inconsistent and diametrically different in each material aspect which throws any amount of the substratum of prosecution version, xiii) The learned Magistrate ought to have held that the circumstances create a shadow of doubt on the substratum of the prosecution version.

6. Heard the learned counsel for the accused /appellant and the learned Public

Prosecutor for the prosecution.

7. Now the point for determination is:

Being it is a case of rash and negligent driving of the driver of

Eachier Van bearing No. KA.11-1089 resulted in death of deceased

Thippeswamy and giving injuries to PW.2, the burden is on the

prosecution at first to prove the deceased Thippeswamy died on account of

injuries and receiving of injuries by PW.2 in the accident in issue ?

8. PW.1 is the brother of the deceased and PW.2 M.Siriyamma is the pillion raider on the motor cycle driven by the deceased Thippeswamy, have categorically stated that on the account of hit by Eachier Van bearing No.KA-11- 1089, both PW.2 and deceased fell down into the road from the bike, the deceased died on the spot and that PW.2 was received injuries in the said accident.

9. It is pertinent to note that the accused has not disputing the above fact that deceased died on account of injuries received in the accident, similarly receiving of injuries by PW.2. The prosecution has placed the medical evidence in support of the above ocular evidence of the death of deceased and injuries received by PW.2 by examining PW.5 Dr.M.Rajendra Prasad. PW.5 categorically stated that he conducted autopsy on the dead body of the deceased and found two external injuries and clearly gave opinion as to cause of death of deceased due to head injury of grievous in nature and causing massive subdural hematoma due to road traffic accident prior to 4 to 6 hours of postmortem examination. Through this

PW.5, the postmortem certificate is marked as Ex.P.4 and the above finding of

PW.5 as to cause of death of deceased is left un-disputing by the accused by reporting no cross-examination of this witness.

10. Similarly, PW.7/ Dr. Abhinava has categorically stated that he examined

PW.2 M.Siriyamma and found 5 injuries on her. Out of that injury No.4 is grievous in nature and Ex.P.7, Wound Certificate issued by him in the name of PW.2. Here also the learned counsel for the accused reported no cross-examination of PW.7.

11. The role of the PW.3/G.Thippeswamy in the present case is that he acted as mediator for the inquest held over the dead body of deceased Thippeswamy on 05.06.2011 and that inquest report is marked as Ex.P.2. This PW.3 is not subjected to cross-examination as reported on behalf of the counsel of accused.

12. So, the above evidence clinchingly establish the prosecution case that the deceased Thippeswamy and PW.2 M.Siriyamma received injuries in the road traffic accident and that the deceased succumbed to injuries on the spot at the place of accident.

13. Nextly, heavy burden is on the prosecution to identify the driver of

the Eachier van (herein after referred as crime vehicle) as the accused and

caused accident due to his rash and negligent driving.

14. According to prosecution LW.1 to LW.6 are witnesses to the accident and

LW.7 who is examined herein as PW.2 was the injured, out of these eye witnesses, prosecution has examined and placed reliance on PW.1 and PW.2 and since they supported the prosecution, remaining witnesses are given up.

15. Coming to the evidence of PW.1, himself, has younger brother namely

A.Mariyappa, A.Lalithamma, S.T.Thippeswamy, A.P.Thippeswamy (LW.4 to LW.6) were stated in a jeep to go to said above village and they are proceeding behind the said motor cycle and when they reached near Malayanuru village cross, the crime vehicle came from Karnataka side in a opposite direction and in wrong direction and hit the motor cycle of deceased Thippeswamy and he died on spot and PW.2 M.Siriyamma sustained injuries. The said incident took place due to negligence of the driver of the said lorry. The present accused was the driver of the said lorry at the time of incident and he is responsible for the said accident.

16. When PW.1 is subjected to little cross-examination, it is elicited from him that with a gap of 5 minutes their vehicles started to go to Mahanthapuram.

Motor cycle of the deceased and their jeep were proceeding with a distance of 100 to 150 meters. At the scene of offence there is a transition curve like a train way curve that he has not furnished the identification particulars of the driver of the crime vehicle in Ex.P.1 or in his 161 Cr.P.C statement. Further, PW.1 stated that he has no prior acquaintance with the accused. However, PW.1 denied suggestion that at the road curve, there is no possibility to observe the opposite coming vehicle and that the accused was not the driver of the crime vehicle at the time of accident and he is no way concerned to the said accident and lastly there was no negligence on the part of the driver of the lorry and in turn the motor cycle is wet in speed and hit the lorry.

17. By the above evidence of PW.1, it is evident that PW.1 is proclaiming that he is eye witness to the accident, being following behind the deceased jeep along with his other close kith and kin, but he could not furnished the particulars of the driver of the crime vehicle for identification as the accused. Whereas PW.2

M.Siriyamma has fairly conceded in her cross-examination that she does not know the accused, when they reached near Malayanuru village at about 12.30 p.m., one

Tempo came in a opposite direction, while crossing turning, hit their motorcycle, due to which the accident resulted and that the driver of the said tempo responsible for the death of the deceased. The PW.2 has conceded in her cross- examination that behind their motor cycle, jeep of PW.1 did not come. She did not state before police that PW.1 was proceeding behind their motor cycle in a Jeep.

However, she denied the suggestion that there was no possibility to observe the opposite coming vehicle at the scene of offence as there was road curve. But, ultimately, the PW.6 Investigation Officer in this case through whom the FIR issued by him is marked as Ex.P.5 and the rough sketch of scene of offence as Ex.P.6, admitted in his cross-examination that the scene of offence is turning curve and there is no possibility to observe the opposite vehicles. Similarly the Investigation

Officer admitted that PW.1 did not mentioned the descriptive particulars of driver of the crime vehicle, likewise the other eye witness did not state the same.

18. It is pertinent to mentioned that accused is not disputing the fact that the crime vehicle is free from mechanical defect as per report given by PW.4

P.Ramabrahamam, Motor Vehicle Inspector, Deputy Transport Commissioner‟s

Office, Tadipatri and his report is marked as Ex.P.3.

19. The sum and substance of the above said discussion is that the PW.1,

PW.2 and other prosecution witnesses he no prior acquaintance with the accused to the date of accident. Similarly it is not possible to see the coming of opposite vehicle due to deep road curve at the place of accident. Likewise, the Investigation

Officer failed to get the descriptive particulars of the driver of the crime vehicle.

Moreover, the claim of PW.1 and other witnesses that they saw the occurrence of accident from the jeep following behind the vehicle of the deceased is highly doubtful as same being not supported by PW.2, who is injured in the accident.

Despite of all these negotiations, factors are against the prosecution, the learned

Magistrate has simply ignored of them without assigning any reasons even though

identify of the driver of the crime vehicle as the accused is highly doubtful, that too the witnesses without retaining of any descriptive particulars of the accused, given the evidence after long gap from the date of incident i.e, 04.06.2011.

20. In this regard, the learned counsel for the accused namely Sri.

S.Mohammad Hafeezulla has contended that in the absence of test identification parade of the driver of crime vehicle, by PW.6 / Investigation Officer identification of the accused by PW.1 in the court is not acceptable. In support of this contention, reliance is placed on the Judgment of the Hon’ble Supreme Court of India in

Mohammad Abdul Hafeez Vs. State of Andhra Pradesh reported in AIR 1983

SC. 367, where in it is held that;

“We would not have not attached much importance to the omission of non-mentioning the names of the accused in the FIR% Ext. P-1 because it is distinctly possible that the victim Satyanarayana was caught unawares and may not be knowing the accused prior to the date of the incident and, therefore, may not be able to give their names but he could have at least given some description of the persons who robbed him. At any rate, he could have given some description of the present appellant who was supposed to be sitting next to him and who thrust his hand in his pocket and removed 100/-. The total absence of any such description which would have provided a yardstick to evaluate the identification of the present appellant at a later date by victim Satyanarayana would render his later identification weak but that is not the only error. Ext. P/1 clearly shows that the victim Satyanarayana did not know the names of the persons who robbed him. In such a situation ordinarily after the accused were arrested the test identification parade should have been held. It is admitted that no such identification parade was held. It is only when the victim Satyanarayana came to give evidence in the Court and the four accused were sitting in the court that he identified them as the miscreants. Incident occurred on December 9, 1978. Evidence of Sathyanarayana was recorded

in the court on April, 21, 1979. There was thus a lapse of more than four

months during which period it is not possible to believe that victim Satyanarayana had no occasion to see the accused. Such identification in the circumstances of the case would hardly furnish any evidence against the present appellant”.

21. The learned counsel for the accused also come up with the Judgment of the Hon’ble Supreme Court in Wakil Singh and others Vs. State of Bihar reported in AIR 1981 SC 1392 held that; “ Identification of the accused in a Decoity. No detail of accused persons given by the witnesses- One of the witnesses identifying the accused in TI parade after over three months- Such identification is not reliable”.

22. Lastly, the learned counsel for accused placed reliance on the Judgment of

Hon’ble High Court of A.P in Piginarayi Ranga Rao Vs. State of A.P reported

in 2009 (1) ALD (Crl.) 971, wherein it is observed that; “ According to PW.3-Modadugu Srinivasa Rao, After the accident, the lorry was stopped near the place of accident and the driver ran away. PW.4- Thatikonda Venkateswarlu, deposed that after the incident, the lorry covered a small distance and was stopped and the accused ran away. Of-course, PW.1 to PW.3 and 4 deposed that accused drove the lorry at the time of accident. The circumstances that there was no prior acquaintance between the witnesses and accused and the fact that the lorry was stopped at a distance of 20 or 25 feet from the place of accident and the driver after stopping the lorry, ran away from the place of accident, show that the witnesses had no opportunity to have a good look at the accused. In such circumstances, it is obligatory on the part of the Investigating Officer to elicit the descriptive particulars of the accused from the witnesses and to hold Test

Identification Parade, which would establish the case of the prosecution beyond all reasonable doubt”.

23. In the instant case also the driver of the crime lorry after hitting the motor cycle of the deceased, proceed a head and stopped and due to fear of the accident ran away and absconding. So, the observation in the Hon‟ble Supreme Court

Judgment is almost all replica to the present case. Likewise, the facts on the hand to some extent is similar to the facts in the referred case of Hon‟ble Supreme

Court.

24. The finding of the trial court that the prosecution has succeeded in establishing the identity of the driver of the crime vehicle as the accused by ignoring all the above facts is nothing but erroneous. As the prosecution failed to establish the identity of the driver of the crime vehicle as the accused, the conviction of the accused by the trial court is not proper and just and as such the point for determination is answered negatively against the prosecution and it is a fit case where the benefit of doubt shall be given to the accused.

25. In the result, this criminal appeal is allowed and the conviction and sentences imposed against the appellant/ Accused in judgment dated 04.03.2015 in

CC No.285/2011 on the file of Judl. Magistrate of I Class, Kalyanaudrg, is set aside

and the appellant/accused is acquitted under Section 386 (b) Cr.P.C for the charge

U/Sec. 304-A, 337. Accused is set at liberty and he is entitled for refund of the fine amount paid by him in the trial Court and bail bonds of accused shall stand canceled after appeal time.

Dictated to the Stenographer Gr.I, transcribed by her, corrected and

pronounced by me in open court, this the 30th day of November, 2015.

SESSIONS JUDGE,

Ananthapuramu.

1

IN THE COURT OF THE SESSIONS JUDGE: ANANTHAPURAMU

Present : Sri N.Ganesh Babu, Sessions Judge

Monday, this the 30th day of November, 2015

Cr.R.P.No.113/2015 in PRC.No.20/2013 on the file of Judl. I Class

Magistrate, Hindupur

Between:

Sub-Inspector of Police, Hindupur Rural PS … Revision Petitioner/Complainant

And

1.Uppra Subbarayappa

2.Uppara Sreeramulu

3.Uppara Jagannatha

4.Uppara Papamma … Respondents/Accused 1 to 4

This petition is coming on 30.11.2015 for hearing before me in the presence of Public Prosecutor for the State, and after hearing and upon perusing the records,this court passed the following:

ORDER

Heard the learned Public Prosecutor for the prosecution.

It is a suo-moto case taken by this court as to the maintainability of the

PRC.No.20/2013 committed to this court by the learned Magistrate, Hindupur by its order 16.09.2015 on the ground that by virtue of the Central Amendment to the

Criminal Procedure Code, the offence U/s 354 IPC involved in this case is triable by the Magistrate. Under the I Schedule of Criminal Procedure Code after making amendments as per Criminal Law (Amendment) Act, 2013, the offences U/s 354, 354-

A to D of IPC are made triable by any Magistrate. No doubt, the offence of Sec.354 IPC is triable by Sessions Court in the initial stage by virtue of the State Amendment for the Criminal Procedure Code. But it is a settled law that once Central Amendment has came into force under which the jurisdictional power for the offence U/Sec.354 is conferred to the Magistrate it will prevail over the State Amendment. As such it is a fit case where the committal order of the trial court is liable to be set aside and sending the record in Cr.No.48/2013 of Hindupur Rural PS (PRC.20/2013) back to the learned JFCM., Hindupur to take cognizance as Calender Case upon the above charge sheet as per law.

2

Accordingly, revision petition is disposed of directing the office to send the records in Cr.No.48/2013 (PRC.20/2013) of Hindupur Rural PS back to the learned

JFCM., Hindupur to take cognizance as Calender Case upon the above charge sheet as per law. Accordingly in committal order is set aside.

Dictated to Personal Assistant of Gr.I, transcribed by her, corrected and

pronounced by me in open Court, on this the 30th day of November, 2015.

Sd/- N.Ganesh Babu

SESSIONS JUDGE,

ANANTHAPURAMU.

/

Case Historyhttp://172.17.40.130/swecourtis/kiosk/cases/case_no...

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In the Court of :Principal District and Sessions Judge

Case No. :OS/0000074/2015 Vadde vishala Vs N.Sankaramma

Date : 30-11-2015

Business: Suo moto advanced today. Suit is transferred to Principal Senior Civil Judge, Ananthapuramu as per orders in Dis.No.4451 dated 8.7.2015 with regard to enhancement of pecuniary jurisdiction Nature of Disposal: TRANSFERRED Disposal Date: 30-11-2015

Principal District and Sessions Judge

1 of 131/08/24, 12:52

Case Historyhttp://172.17.40.130/swecourtis/kiosk/cases/case_no...

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In the Court of :Principal District and Sessions Judge

Case No. :OS/0000071/2015 M.V.Dhanalakshmi Vs K.Chandrasekhara

Date : 30-11-2015

Business: Suo moto advanced today. Suit is transferred to Principal Senior Civil Judge, Ananthapuramu as per orders in Dis.No.4451 dated 8.7.2015 with regard to enhancement of pecuniary jurisdiction Nature of Disposal: TRANSFERRED Disposal Date: 30-11-2015

Principal District and Sessions Judge

1 of 131/08/24, 12:51