Smt. N. Sree Lakshmi

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE:KOVVUR

PRESENT:- Smt.N. Sree Lakshmi,

Principal Junior Civil Judge, Kovvur

Tuesday, this the 24th day of April, 2018

OS.167/2016

Between :

Sri Achanta Veerendra Kumar, S/o A.V. Prasada Rao, 41 years, Hindu, working as Company Secretary, Extn.1286, Lanco Infratech Ltd, Plot No.397, Udyog Vihar, Phase-3, Gurgoan Haryana – 122016, C/o A.V. Prasada Rao, Gandhinagaram, H/o Yernagudem village, Devarapalli Mandal, WGDt., ... Plaintif

And

1.Sri Achanta Harinath Babu, S/o late China Venkanna, 67 years, Hindu, Cultivation, Gandhinagaram, H/o of Yernagudem village, Sangayagudem(PO), Deverapalli Mandal, WGDt.,

2.Sri Achanta Praveen Kumar, S/o A. Harinath Babu, 43 years, Hindu, Private Employment, R/o Gandhinagaram, H/o of Yernagudem village, Sangayagudem(PO), Devarapalli Mandal, WGDt.,

3.Sri Achanta Venkateswararao, S/o A. Harinath Babu, 41 years, Hindu,Private Employment, R/o Gandhinagaram, H/o of Yernagudem village, Sangayagudem(PO), Devarapalli Mandal, W.G.Dt.,

4.Sri Achanta Venkata Gopala Krishna, S/o A. Harinath Babu, 39 years, Hindu, Private Employment, R/o Gandhinagaram, H/o of Yernagudem village, Sangayagudem(PO), Devarapalli Mandal, W.G.Dt., … Defendants

This suit is coming on 04-04-2018 for final hearing before me in the presence of Sri P. Narasimha Rao, Advocate for the plaintif and of Sri P. Murali Krishna, Advocate for defendants and having stood over for consideration to this day, this Court delivered the following:

J U D G E M E N T

This suit is filed by the plaintif against the defendants for the relief of perpetual injunction against the defendants by restraining them from ever interfering with the peaceful possession and enjoyment of the plaintif over the plaint schedule property of Ac.10.20 cents of zeroyiti agricultural dry land situated in R.S.No.29/2b of

Yearnagudem village, Sangayagudem village panchayat, Devarapalli

Mandal and for costs of the suit.

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2. The brief facts of the plaint are that :

The plaintif is the owner of the plaint schedule property in an extent of Ac.10.20 cents of zeroity dry land and he got the same through a registered gift/settlement deed executed by his father A.V.

Prasadarao under a registered document No.2450/2008, dated 09.09.2008 and he has been in peaceful possession and enjoyment of the same. The plaintif also obtained pattadar pass book for title and pass book for possession of the said Ac.10.20 cents of land. He has been paying the property tax and other cess to the Government in respect of the property. The name of the plaintif is mutated in revenue records as owner having lawful title over the property. The 1st defendant is the junior paternal uncle and defendants 2 to 4 are cousins of plaintif. The landed properties belongs to 1st defendant is also situated on the east northern side of plaint schedule property. The defendants 1 to 4 are trying to construct tobacco barrel sheds depositing heaps of fire wood etc, on the northern side of plaint schedule property and causing inconvenience to the plaintif. The plaintif, his father and his elder brother raised the matter against the illegal activities of the defendants in the plaint schedule property

before the caste elders in the 1stweek of September at

Gandhinagaram village and tried to sort out the matter amicably, but the defendants refused to hear their advice. As there is no other go, the plaintif filed this suit. Hence, the suit.

3.The averments of the written statement are:

The 1st defendant filed written statement which was adopted by defendants 2 to 4. They admitted that the relationship in between the parties. They contended that they never interfered with the possession and enjoyment of the plaintif in the plaint schedule property. In fact, the defendants were unnecessarily without any fault of them dragon into the unnecessary litigation and as such the suit is liable to be dismissed in limini as there is no cause of action for the same. The 3 defendants never threatened to interfere with the plaintif’s possession and enjoyment of plaint schedule property on the western side or in any side of the plaint schedule property and as such the question of threats of interference by them in respect of the plaint schedule property i.e, on the western side of the plaint schedule property does not arise at all and there is no iota of truth in it. The land of the defendants is situated on the northern side of the plaintif’s land to an extent of Ac.7.36 cents. The defendants partitioned their property under the registered partition deed, dated 30-05-2009 and in the said partition, the 3rd defendant got the property to the north of the plaint schedule property. There are barons for the last more than 35 years in their lands and like that there are so many barons in the surrounding areas and 3rd defendant or other defendants never made any attempt to construct new structures in their land. However, the plaintif failed to plead facts which create any cause of action to the suit. The plaintif has no right to plead that put the defendants to condition in enjoyment of his property. The plaintif is not entitled for the relief prayed for in the suit as well as in the petition.

4.Basing on the above pleadings, the following issues are settled for trial:

1. Whether the plaintiff is entitled for perpetual injunction against the defendants as prayed for?

2. To what relief?

5.On behalf of plaintif, P.Ws.1 to 3 were examined and

Exs.A-1 to A-7 are marked. On behalf of defendants, D.W.1 was examined and no documentary evidence is adduced.

6. Heard both sides.

7. ISSUE No.1 :

The contention of the learned counsel for plaintif is that father of the plaintif executed Gift deed/Ex.A-3 in favour of plaintif and contended that Exs. A-3, A-5 And A-6 shows the ownership and 4 possession of plaintif over the plaint schedule property. He contended that the defendants did not deny the possession of plaintif over the plaint schedule property. Even though the defendants contended that

Ac.0.20 cents of land was left for enjoyment of their families jontly, there is no document to that efect to prove the same as such the defendants failed to prove their contention and they are encroaching into the plaint schedule property and they shall be restrained by way of perpetual injunction and prayed to grant perpetual injunction in favour of plaintif restraining the defendants from ever interfering with the plaint schedule property.

8. On the other hand, the contention of the learned counsel for the defendants is that defendant got property towards northern side and the defendants are not shown as boundarydars to the plaint schedule property. He contended that plaintif amended entire plaint but he did not amend the schedule. He further contended that the parties exchanged their lands on their mutual understanding and they have obtained their pattadar pass books as per their enjoyment of lands. He further contended that the plaintifs has to file suit for declaration for Ac.1-25 cents of land and the defendants never encroached into plaint schedule property and prayed to dismiss the suit.

9. On behalf of the plaintifs, the father of the plaintif was examined himself as PW1 based on General power of Attorney executed by the plaintif and he filed his chief affidavit and reiterated the contents of the plaint and got marked Exs.A-1 to A-7 on his behalf.

During his cross-examination, he admitted that the first defendant is his younger brother and stated that his younger brother and his second son Venkateswara Rao are doing cultivation and eking their livelihood. He further deposed that his father and his brothers acquired some properties from their father but he do not know whether his father and his brothers executed unregistered partition list at that time.

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He admitted that he acquired ancestral properties but there are no self acquired properties to him. By the time of execution of partition list, dated 02.06.1970 executed by his father and his brothers, he was not present. He further deposed that he do not know whether his senior paternal uncle acquired A-schedule property and his father acquired B-schedule property, his junior paternal uncle acquired C and

D schedule properties respectively and stated that his father and his brother/D1 informed him about the recitals of partition list and he in turn informed the same to scribe and got executed Ex. A2 but the particulars of the land which was situated at Chinnayagudem was not mentioned in Ex. A2 and the total extent of land in RS No. 29 is

Ac.37.01 cents. According to him, the RS No. 29 is sub-divided as 29/1, 29/2A, 29/2B and the total extent of land in RS 29/2B is Ac.17.76 cents. He denied that the total extent of land in RS No. 29/2B is

Ac.21.01cents and it was not sub-divided. He further deposed that Ex.

A6 is genuine document and stated that there are errors in Ex. A6. He further deposed that as per the partition deed, dated 20.03.1984 himself and his children are enjoying their shares except Ac.1.25cents of land in RS No. 29/2B which was not in their possession and stated that they gave Ac.4.00cents of land to their sister/Bandi Suseela which was fell into the share of their father but he cannot say its RS number.

He admitted that they acquired Ac.0-13cents of land in RS No. 162/1,

Ac.3.00 cents of land in RS No. 162/2, Ac.0-55 cents of land in RS No.

162/3 of Yernagudem village. According to him, himself and his brother equally partitioned their father’s properties as per Ex. A2. He denied that there are two tobacco barrens in his name and he has sold his two tobacco barrens by the time of filing of this suit and stated that prior to 40 years back, himself and his younger brother jointly used to do cultivation and cured the tobacco barrens. After selling his barrens, the defendants are curing their barrens. According to him, his land was situated on the northern side of the plaint schedule property and his 6 family members are using jointly and stated that there is no arrangement between him and his brother to use Ac.0-20cents of land jointly. He denied that firewood was placed in Ac.0-20cents of land and the defendants are also having joint right over Ac.0-20 cents of land since their forefathers as such they kept firewood in Ac.0-20cents of land and that they did not encroach his land. He further deposed that after filing this suit, he raised dispute before their caste and village elders. He denied that he has mentioned in his chief affidavit that there is a dispute with regard to B,C schedule properties between him and his younger brother. He denied that himself and his sons colluded with each other and they have shown Ac.30.00 cents of land as their own inspite of actual land i.e., Ac.27.00 cents only in order to harass the defendants.

10. The plaintif also examined P.W.2 on his behalf. P.W.2 filed his chief affidavit and supported the case of the plaintif. During cross examination, he admitted that RS No. 29/2B is a single bit. At present they have no barrens and they have sold their barrens in the year 2013. He further admitted that prior to 2013, themselves, the defendant and their grand-father jointly used the consuming area. He admitted that they have placed the cement poles in between their lands and the lands of the defendant as there is no bund between their lands. He further deposed that if the defendants are willing to got survey through surveyor and to lay poles in the boundaries, then he will communicate the same to his brother/plaintif. He admitted that they are not enjoying their shares as per the partition took place in the year 1984 and they are enjoying by exchanging their lands mutually.

He admitted that prior to filing of this suit, there are no disputes between them with regard to their enjoyment of lands. He denied that the defendants never encroached into the plaint schedule property and that they keeping their fire wood on the common area which was jointly used by them.

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11. The plaintif also examined P.W.3 on his behalf. P.W.3 filed his chief affidavit and supported the case of the plaintif. During cross examination, he deposed that he has no personal disputes between the parties and he came to know about the disputes between them after the filing of this suit but he do not know about the shares of parties acquired in partition. He admitted that the above Ac.0-20cents of land was commonly used by the plaintif, defendants and their grand-father and stated that the defendants asked him to act as elder to settle the dispute, on that they advised both the parties to settle the matter by giving Ac.0-20cents of land to the defendant and the plaintif can take another Ac.0-20cents of land from the defendants. He advised both the parties to settle the previous disputes also if any. He admitted that during the life time of grand-father of the plaintif, the plaintif’s family, the defendants and their grand-father jointly used the common area.

12. On behalf of the defendants, defendant was examined as

D.W.1. He reiterated the contents of written statement in his chief affidavit. During the course of cross-examination, he admitted that during the life time of their father, themselves and elder brother executed registered partition deed. He has gone through the registered partition deed which was filed by the plaintif. He admitted that as per the partition deed/Ex.A2, his father got Ac.17.46 cents of land and Ac.6.36 cents of land is part of the property of his father. PW1 got Ac.20.58 cents of land. He admitted that as per Ex. A2, PW1 got

Ac.11.40 cents of land. There are no disputes between him and his brother with regard to the shares of their properties. He denied that

PW1 got Ac.1.20cents of land was situated towards northern side of plaint schedule property and stated that land was under his possession and enjoyment. After the death of their father, himself and his father exchanged some lands but the same was not reduced into writing.

Since, it was not reduced into writing as such they are disputing with 8 each other. He admitted that those tobacco barrens are constructed jointly by them during life time of their father. He further deposed that the plaint schedule property and other lands to an extent of Ac.6.36 cents was situated in RS No. 29 of Yernagudem village and the total extent of land in RS No. 29 is Ac.37.01 cents but he do not know about the extent of land Ac.2.00cents in RS No. 29 when it was sub-divided and also he do not know about the details of sub-divisions of RS No.29.

He further deposed that he has not filed the partition deed before the court and stated that there is no documentary proof to show that he got Ac.1.20 cents of land and further stated that himself and PW1 exchanged orally their lands. He admitted that he has not mentioned in registered partition deed, dated 30.05.2009 with regard to how he acquired the schedule property and stated that himself and his brother orally exchanged their lands in the year 1995 as such he has mentioned about the partition deed in his written statement of Para

No.12. He denied that PW1 asked him not to keep any firewood on the northern side of plaint schedule property before filing of this suit and PW1 asked him not to tie the cattle in the plaint schedule property.

He admitted that himself and PW1 entered into settlement in the presence of their village elders and also before both counsels after filing this suit and stated that he is ready for the settlement after taking measurements of the plaint schedule property and further stated that he agreed to give Ac.0-10 cents of his land in the place of

Ac.0-05 cents of land of PW1 and his family but at the time of measurements some disturbance arose between them.

13. After going through the entire evidence and other material available on record, it appears to the Court that P.W.1 and D.W.1 are the own brothers and they acquired some ancestral properties from their father. However, there is no document before the Court to show the actual extent of properties acquired by of P.W.1 and D.W.1 from their father. Both parties are relying on Ex.A-2 partition deed dated 9 20.03.1984. P.W.1 executed Ex.A-3 Gift deed in favour of plaintif to an extent of Ac.1-20 cents covered in S.No.29/2b of Yernagudem village.

P.W.1 has mentioned in his chief affidavit that out of remaining, an extent of Ac.1-00 cents has been given by him to his elder son and the remaining Ac.0.20 cents land is kept for the adjustment of the existing joint puntha which was laid by his grand father and his brothers long back ago.

14. The main contention of plaintif is that 1st defendant interfering with the plaint schedule property wherein, he kept large heaps and bundles of fire wood and other material within the schedule property. Whereas the contention of the defendants is that they are also having joint right over Ac.0.20 cents of land since their fore fathers as such they kept fire wood in Ac.0.20 cents of land and that they did not encroach the land of plaintif.

15. In addition to his contention, the learned counsel for plaintif relied on Order of the Hon'ble Andhra High Court in the case of

Seera Simhachalam and another Vs. Pediredla Simhachalam

and Others on 9 th December, 1999 reported in AIR 2000(2) ALD 292, 2000(2) ALT 479 wherein it was held that “It is the settled legal position that a suit for injunction based on possession without title can also be maintained. Section 38 of the Specific Relief Act, 1968 deals with the grant of perpetual injunction.

According to subsection(2) of the said section a perpetual injunction may be granted to the plaintif when the defendant invades or threatens to invade the plaintifs right to or enjoyment of property where the invasion is such that compensation in money would not aford adequate relief and where the injunction is necessary to prevent a multiplicity of judicial proceedings. It is well settled that in a suit for injunction the primary question to be considered relates to possession, though the question of title also may be gone into incidentally. A person in possession, though without title, can resist 10 interference from another who has no better title than him and get injunction”.

16.The learned counsel for plaintif further relied on

AIR 2012 Supreme Court 1727

Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de

Sequeria wherein it was held that “It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

a) who is or are the owner or owners of the property;

b) title of the property;

c) who is in possession of the title documents;

d) identity of the claimant or claimants to possession;

e) the date of entry into possession;

f) how he came into possession – whether he purchased the property or inherited or got the same in gift or by any other method;

g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

h) If taken on rent, license fee or lease – then insist on rent deed, license deed or lease deed’

I) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc;

j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein and

k) basis of his claim that no to deliver possession but continue in possession.

I have gone through the above decisions. There is no dispute with regard to settled legal proposition of Law in those decisions.

17. From the evidence of P.Ws.1 to 3 and D.W.1, it was elicited that both P.W.1 and D.W.1 have tobacco barrens and P.W.1 sold their 11 tobacco barrens and D.W.1 has been cultivating his tobacco barrens.

The contention of the defendants is that the P.W.1 and D.W.1 jointly have been using Ac.0.20 cents of land for keeping fire wood at the time of curing of tobacco barrens. When P.W.1 sold his tobacco barrens, he started obstructing D.W.1 for keeping fire wood. On that, both parties placed the matter before the elders and they arrived into compromise and intend to execute memorandum of understanding, subsequently compromise talks are failed then the plaintif got filed this suit against the defendants by executing GPA in favour of his father.

18. The learned counsel for plaintif contended that the plaintif has satisfied all the cardinal principles for granting perpetual injunction and he got marked Exs.A-1 to A-6 to prove his title and possession of the plaint schedule property as such he is entitled for grant of perpetual injunction against the defendants. Whereas the learned counsel for defendant contended that even though P.W.1 and

D.W.1 executed Ex.A-2/partition deed, they are not in possession of their respective shares and they have exchanged their lands and obtained pattadar pass books as per their enjoyment of lands. Now

P.W.1 was obstructing the plaintifs for keeping fire wood in Ac.0.20 cents of land even though defendants got joint right in that Ac.0.20 cents of land since their fore fathers and they have been keeping fire wood since 30 to 40 years.

19. On perusal of chief-affidavit of P.W.1, it discloses that he clearly mentioned in para No.3 that out of remaining, an extent of

Ac.1.00 cents has been given by him to his elder son and the remaining Ac.0.20 cents land is kept for the adjustment of the existing joint puntha which was laid by his grand-father and his brothers long back ago. Further, P.W.2 who is the elder son of P.W.1 clearly admitted in his cross examination that they are not enjoying their shares as per the partition took place in the year 1984 and they are enjoying the exchanging their lands mutually. He further admitted that prior to 12 filing of this suit, there are no disputes between them with regard to their enjoyment of lands.

20. In view of the above facts and circumstances, it appears to the Court that the main dispute between the parties is with regard to usage of Ac.0.20 cents of land. On perusal of evidence of P.W.1, he clearly mentioned that his fore fathers and his brothers left Ac.0.20 cents of land for joint puntha. He deposed in his cross examination that there is no understanding between him and D.W.1 with regard to usage of Ac.0.20 cents of land jointly. From the evidence of P.W.2 and

D.W.1, it was elicited that both parties are ready to compromise the matter after conducting survey of both lands. Under these circumstances, this Court is of opinion that the evidence on record is not sufficient for the Court to prove that the defendants have encroached into the plaint schedule property.

21. In view of the above discussion, this Court is of considered view that the plaintif is not entitled for perpetual injunction against the defendants as prayed for.

22. ISSUE NO.2: In view of the findings of Issue no-1, the plaintif is not entitled for any relief as prayed for.

In the result, the suit is dismissed without costs.

Dictated to my dictation to personal Assistant, transcribed by her, corrected and pronounced by

me in open Court on this the 24 th day of April, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

KOVVUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PLAINTIFF :

P.W.1 : A.V. Prasada Rao

P.W.2 : Achanta Seshu Kumar

P.W.3 : Yeddanapudi Venkata Ratnam,

FOR DEFENDANT :

D.W.1 : Achanta Harinadh Babu 13

DOCUMENTS MARKED

FOR PLAINTIFF :

Ex. A1/dt: 02.09.2017: General power of Attorney executed by the plaintif in favour of P.W.1

Ex. A2/ dt: 20.03.1984 : Certified copy of the registered partition deed, in document No. 242/1984 of SRO/Ananthapalli link document to the Gift/settlement deed executed infavour of the plaintif in the year 2008.

Ex.A3/ dt: 09.09.2008:Certified copy of registered settlement/Gift deed, executed in favour of the plaintif by him vide Doc. No. 2450/2008 of SRO of Ananthapalli.

Ex. A4/ dt: 26.10.1976 :Certified copy of FMB, showing the place in which the defendants interfered with the plaint schedule property marked in red ink along with certified copy obtained through Mee-seva, dt: 30.10.2017 from village panchayat.

Ex. A5/dt: 30.10.2017:Certified copy of 1B Adangal, obtained through Mee-seva

Ex. A6/dt: 30.10.2017 :Certified copy of Pattadar pass book for title of the plaintif obtained through Mee-seva

Ex. A7/dt.--:Photograph along with CD.

FOR DEFENDANT : Nil

PRINCIPAL JUNIOR CIVIL JUDGE,

KOVVUR.

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IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE, KOVVUR.

PRESENT:- Smt.N.Sree Lakshmi,

Principal Junior Civil Judge

FAC I Addl.Junior Civil Judge

Monday, this the 16th day of April, 2018

O.S.No.172/2015

BETWEEN:

Sri Bodapati Krishna Murthy, S/o Kannayya, 66 years, Hindu, Male, Cultivation, R/o D.No.13-15, Yadavole, Deverapalli Mandal, WGdt, KJCJC ...Plaintif AND

Sri Suthapalli Durga Venkata Prasad, S/o Janardhan, 30 years, Hindu, Male, Business, D.No.3-358/1, Yadavole, Devarapalli Mandal, WGDt, KSCJC

...Defendant

This Suit is coming on 09-04-2018 before me in the presence of Sri A. Satyanarayana, Advocate for plaintif; and Sri K.Hari Mohan, Advocate for defendant and upon hearing the counsel for plaintif and on perusal of the material on record, and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

This is a suit for recovery of Rs.2,27,025/- being the principal and interest amount due on the promissory note, dated 18-12-2012 executed by the defendant in favour of the plaintif for Rs.1,50,000/- repayable with interest @ 18% p.a, and for costs of the suit.

2.The brief averments of the plaint are :

That the defendant borrowed an amount of Rs.1,50,000/- from plaintif on 18-12-2012 for the purpose of his house construction and family welfare and executed a suit promissory note on the even date in favour of the plaintif, agreeing to repay the same with interest at 18% p.a. to his order on demand. The defendant put his signature and also affixed his thumb impression on Suit promissory note. Subsequently, inspite of repeated demands made by the plaintif personally and through mediators, the defendant did not choose to discharge the debt 2 and postponing the same on one pretext or the other. The plaintif got issued a registered legal notice on 14-10-2015 to the defendant. Even after receipt of legal notice, the defendant did not choose to discharge the debt. The defendant is not an agriculturist and is doing business.

So, the defendant is not entitled for the benefits of any debt relief act.

3. The brief averments of written statement are:

The defendant filed written statement by denying all the averments of the plaint. He submitted that he did not borrow the debt amount from the plaintif and never executed any promissory note. He further submitted that one Anisetti Venkateswara Rao @ Kondayya is the nephew of plaintif. For the last six years, the said Venkateswararao has been running unauthorized chits business in and around Yadavole village. He used to obtain signatures as well as thumb marks of subscribers on empty unfilled printed promissory notes as well as empty stamp papers at the time of giving prize money. Recently, he developed sinister view to harass the subscribers, started filing false suits against the subscribers by using the unfilled promissory notes in his custody in the name of his friends and relatives. The defendant further submitted that he joined as a member in one of the chits run by the said

Venkateswara Rao and at the time of joining of the said chit, the said

Venkateswara Rao obtained signatures of the defendant on three unfilled printed promissory notes as well as on three white papers. Previously, the defendant joined as a member in various chits for Rs.20,000/- on 25-02-2012, Rs.1 lakh on 05.06.2012 and Rs.45,000/- on 10.7.2012 and he paid all the installments of the above three chits. The defendant demanded Venkateswararao for return of signed papers and promissory notes, but the plaintif did not return the same to the defendant. The said Venkateswararao got issued legal notice through the counsel for the 3 plaintif on behalf of Anisetti Subba Rao, dated 25-03-2014 to the defendant and the defendant gave reply notice dated 13-04-2014. The said promissory note is not supported by any consideration and it is a forged and fabricated one. The plaintif has no financial capacity to lend such huge amount. The defendant is not doing any business and he is doing cycle repairs. He has no necessity to borrow amount from the plaintif. The alleged attestors namely Anisetti Ganga Raju and Anisetti

Venkata Rao are not known to the defendant and they might be the relatives of Venkateswara Rao. He further submitted that the scribe is preparing false documents in the absence of the executants by taking money. The defendant is a signatory. The said Venkateswararao also filed several suits against several subscribers in the name of his father

Subba Rao, mother Bullemma, maternal uncle Bodapati Krishna Murthy and the plaintif by taking advantage of unfilled empty promissory notes in his custody in order to harass the subscribers. He is also filing petitions for attachments of the properties of the subscribers. Anisetti

Venkateswararao threatened the defendant that if, he failed to compromise the said suit by paying amounts as demanded by him then he will foist false criminal case also against the defendant. The

Venkateswara Rao is also doing unauthorized money lending business by extracting interest at Rs.15/- to Rs.20/- per hundred per month towards interest. He is also doing money lending business by collecting amount on daily, weekly, monthly basis especially from the poor persons and are persons doing petty businesses. The said Venkateswara Rao also filed a suit against Padilam Dharma Raju in OS.171/2015 in the name of his brother-in-law Pathi Suryanarayana and also filed suit against Thummala

Surya Kantham in OS.189/2015 on the file of this Court and got attached their properties and the said petitions are pending and filed this false in 4 the name of the plaintif against the defendant to get unlawful enrichment and the plaintif has to prove them strictly.

4. Basing on the above pleadings, the following issues are settled for trial.

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

2. To what relief?

5.During the course of trial, on behalf of plaintif, P.Ws.1 to 3 were examined and Exs.A-1 and A-2 were marked. On behalf of defendant, D.Ws.1 to 4 were examined and Exs.B-1 to B-7 are marked.

6. Heard both side counsels.

ISSUE No : 1

7.According to the plaintif, the defendant borrowed an amount of Rs.1,50,000/- from plaintif on 18-12-2012 for the purpose of his house construction and family welfare and executed a suit promissory note on the even date in favour of the plaintif, agreeing to repay the same with interest at 18% p.a. to his order on demand. Subsequently, inspite of repeated demands made by the plaintif personally and through mediators, the defendant did not choose to discharge the debt and postponing the same on one pretext or the other. Where as the contention of the learned counsel for defendant is that one Anisetti

Venkateswara Rao who is the nephew of the plaintif got filed this false suit against the defendant through the plaintif with the promissory note which was obtained by him from the defendant at the time of chits business.

8. Before I examine the above issues with reference to the evidence on record, I feel that it would be useful to refer the following judgments on the scope of Sec.118 of Negotiable Instruments Act. In a judgment reported in AIR 1961 SC 1316 in the case of Kundanlal 5

Rallam Vs. Custodian, Evacuee Property, Bombay, it was held that

Sec.118 of NI Act lays down a special rule of evidence applicable to

Negotiable Instruments. The presumption is one of law and thereunder a

Court shall presume, interalia, that the negotiable instrument or the endorsement made or endorsed for consideration. In efect it throws the burden of proof of failure of consideration on the maker of the note or endorser, as the case may be. In the said judgment the Apex Court held that the initial burden would rest on the plaintif to show that the suit promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Sec.118 of NI Act helps to shift the burden to the other side. It was also held that Sec.118 of NI Act imposes a duty on the Court to raise a presumption in favour of the person who holds the instrument that the instrument was made for consideration. It was held that the presumption shifts the burden of proof i.e., the burden of establishing a case that the suit promissory note was not supported by consideration shifts to the defendant. Then, the defendant may adduce direct evidence to prove that the promissory note was not supported by consideration and if he had adduced acceptable evidence and the burden again shifts to the plaintif and so on. The defendant may also rely upon circumstantial evidence, if the circumstances so relied upon or compelling, the burden lay likewise shift again to the plaintif.

9. At this juncture, I shall also consider the decision reported in

A.I.R 2010 S.C 1898 in the case of Rangappa Vrs Mohan, the

Hon'ble Apex Court while dealing with Sec.138 & 139 of N.I. Act had

incidentally referred itself to Sec.118(a) of N.I. Act. In such decision the

Hon'ble Supreme Court held that the presumption drawn u/Sec.118(a) of

N.I Act cannot be discharged by merely making some baseless 6 suggestions. It referred itself to the decisions reported in A.I.R.2008

S.C 2898 in the case of Mallavarapu Kasi Visweswararao Vrs

Thadikonda Ramulu Firm and other wherein it was observed “under section 118(a) of the Negotiable Instruments Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal”.

10. In the above said judgment, the Supreme Court had referred itself to a decision reported in A.I.R.1999 S.C.1008 in the case of

Bharath Barrel and Drum Manufacturing Company Vs. Amin

Chand Pyarelal wherein it was observed that 'upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted the presumption u/sec.118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of consideration by raising a probable defence.

If the defendant is proved to have discharged the initial onus of proof showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintif who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of Negotiable Instrument.

The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon 7 which he relies ........... the bare denial of the passing of consideration apparently does not appear to be a defence......”

11. On considering the ratio of the above noted judgments, it would be evident that it would be suffice for the plaintif to lead prima facie evidence regarding the execution of the promissory note before he seeks the Court to raise presumptions under Sec.118 of NI Act. Once, the plaintif discharges his initial burden, then it is for the defendant to rebut the presumptions lest he should sufer a decree.

12. As noted above during the trial, the plaintif was examined himself as PW.1. He filed affidavit under Order 18 Rule 4 of CPC giving evidence as to the suit facts. In his evidence, he got marked the promissory note dt.18-12-2012 as Ex.A1 and the legal notice dt.14.10.2015 as Ex.A2. He sought for decree. He also examined the 1st attestor as PW.2, 2nd attestor as PW.3. P.Ws.2 and 3 gave evidence as if the defendant borrowed Rs.1,50,000/- on and executed Ex.A1

Promissory note.

13. As stated above, on behalf of the plaintif, the plaintif is examined as PW1 and he reiterated the contents of the plaint and got marked Exs.A-1 and A-2 on his behalf. During the course of cross examination, he deposed that the plaintif in OS.171/2015 is the son-in- law of his sister and stated that they are not doing any money lending business but he used to lend money to others for necessities. He further deposed that he do not know whether his brother-in-law Subba

Rao issued any notice to the defendant on 25-03-2014 stating that the defendant borrowed Rs.1,20,000/- on 07-08-2012 and he issued reply notice but even after receipt of reply notice, Subba Rao did not file any suit. He denied that by using the empty promissory note available at

Kondababu at the first instance, he got issued notice to the defendant 8 through his father Subba Rao and as the said time was barred by limitation, he got issued another notice to the defendant through him under Ex.A-2.

14.P.W.2 is the 1st attestor to Ex.A.1. He filed his chief-affidavit supporting the case of plaintif. During the course of cross examination, he deposed that he do not know whether Kondababu got filed this suit through P.W.1 by using the empty promissory note available with him.

15.P.W.3 is the 2nd attestor to Ex.A.1. He filed his chief-affidavit supporting the case of plaintif. During the course of cross examination, he deposed that he has not witnessed when the defendant executed promissory note and stated that Anisetty Venkateswara Rao @

Kondababu is the nephew of P.W.1.

16. Now, considering the above nature of evidence i.e., the evidence of PW.1, it can be said that the plaintif himself deposed that the defendant executing Ex.A1 Promissory note on 18-12-2012 borrowed an amount of Rs.1,50,000/- and despite of oral demand, he did not discharge the loan amount. Hence, the evidence of PW.1 suggested that the consideration was passed under suit promissory note.

17.Hence considering the fact that the plaintif could prima facie prove the presumption drawn against the defendant under Section 118

(a) of Negotiable Instruments Act, the defendant is having a burden to rebut the presumption drawn against him under Section 118 (a) of

Negotiable Instruments Act by proving that Ex.A1 was not executed by him and that too for consideration. To discharge his burden under

Section 118 (a) of Negotiable Instruments Act, the defendant can rely upon the cross-examination of the plaintif’s side witnesses or adduce positive evidence on his behalf. In the instant case, the defendant had cross-examined Pws.1 to 3 at length and further he had adduced positive 9 evidence by examining himself as DW1 and examined DWs.2 to 4.

18.To prove his contention, the defendant examined himself as

DW1 and filed chief affidavit in lieu of his examination in chief and it is nothing but the reiteration of the contents of his written statement. To prove his contention, he exhibited Exs.B-1 to B-7. During his cross examination, he deposed that the signature and the thumb impression on Ex.A-1 belongs to him. He denied that in order to avoid the decree debt, he is deposing false evidence and the plaintif is no way concerned with Anisetti Venkateswararao and his afairs.

19.D.W.2 is third party to the suit. He deposed that he got issued legal notice to the defendant for discharging of loan amount of

Rs.1,20,000/- under Ex.B-3 but, he do not know whether the defendant issued Ex.B-4 reply notice. He further deposed that he did not file any suit against the defendant for the above loan amount and stated that he do not know whether his wife has filed any suit.

20.D.W.3 is the scribe of Ex.A1. He deposed that he used to scribe agreements and promissory notes but he is not in habit of scribing of registered documents. He further deposed that he scribed promissory note to the wife of D.W.2 and also to the son-in-law of D.W.2.

He know Bodapati Krishna Murthy/Plaintif, but he do not know the relatives of plaintif in his village. He further deposed that he know one

Anisetti Kondayya who is the son of D.W.2. He denied that he has been executing the empty agreements and promissory notes since 15 years.

He admitted that in general the money lending business people used to obtain thumb impression and signatures on empty papers.

21.D.W.4 deposed that he do not know whether his mother or father doing finance business and also he do not know whether his mother Bullemma filed suit in OS.No.189/2015 against Kommala 10

Suramma and that the suit was dismissed. He do not know that his brother-in-law Pathi Suryanarayana filed suit in OS.No.171/2015 and the same was dismissed. He further deposed that he did not do any chits and daily finance business previously and stated that the defendant is also called as Nani and he own a cycle repair shop. He further deposed that he had no mobile phone. He did not issue Exs.B-1 and B-2 and the mobile phone number in Exs.B-1 and B-2 was not written by him.

He further deposed that he know D.W.3 Tukaram but he do not know that D.W.3 scribed all the promissory notes in this suit as well as the above two suits.

22.On perusal of the entire evidence available on record, it discloses that the defendant was admitting about his signature and thumb impression on Ex.A-1 Promissory note, but he denied about borrowing of Rs.1,50,000/- on 18-12-2012 as well as executing Ex.P-1 promissory note. There is no proper explanation from the defendant to believe his version. Mere denial that there was no consideration passed under Ex.A1 is not sufficient to prove his contention. On perusal of the evidence, it appears to the court that the defence took by the defendant is that Anisetty Venkateswara Rao obtained promissory note from the defendant at the time of transaction relating to chits business and said

Venkateswara Rao got filed this suit through the plaintif based on the alleged promissory note. Even though D.W.1 examined D.Ws.2 to 4 and got marked Exs.B1 to B7 on his behalf, nothing was elicited in favour of the defendant in their evidence. Further, nothing was elicited in his favour from the cross examination of P.Ws.1 to 3. The evidence adduced by the defendant is not sufficient for the court to believe his contention.

23. Considering the evidence on record, the Issue No.1 is 11 answered against the defendant and in favour of the plaintif holding that suit promissory note is true, valid and the plaintif is entitled for the suit claim.

24. Issue No.2:

In the result, this suit is decreed in favour of the plaintif and against the defendant with costs for a sum of Rs.2,27,025/- with interest at the rate of 12% p.a., from the date of the filing of the suit till the date of decree and thereafter at the rate of 6% p.a., on the principal amount of Rs.1,50,000/- from the date of decree till the date of realization.

Typed to my dictation by my Stenographer Grade III, corrected, signed and pronounced by me in the open Court, this the 16 th day of April, 2018.

Principal Junior Civil Judge,

FAC. I Addl.Junior Civil Judge, Kovvur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif P.W.1 : Bodapati Krishna Murthy

P.W.2 : Anisetti Ganga Raju

P.W.3 : Anisetty Venkata Rao

For Defendant D.W.1: Suthapalli Durga Venkata Prasad

D.W.2: Anisetti Subba Rao

D.W.3:Tadepalli Tukaram

D.W.4:Anisetti Venkateswara Rao

Documents marked

For Plaintif

Ex.A-1/dt.18-12-2012: Original promissory note executed by the defendant in favour of plaintif

Ex.A-2/dt.14-10-2015: Office copy of legal notice

For Defendant:

Ex.B-1/dt.--:Original Hand note book Ex.B-2/dt.--:Original Hand note book Ex.B-3/dt.25-03-2014 :Served copy of legal notice Ex.B-4/dt.15-4-2014 :Office copy of reply notice 12

Ex.B-5/dt.14-10-2015 :Served copy of legal notice Ex.B-6/dt.20-10-2015 :Office copy of reply notice Ex.B-7/dt.19-04-2016 :Account copy given by Bank of Baroda, Yernagudem

Principal Junior Civil Judge,

FAC. I Addl.Junior Civil Judge, Kovvur.

13

1

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE, KOVVUR.

PRESENT:- Smt.N.Sree Lakshmi,

Principal Junior Civil Judge

FAC.I Addl.Junior Civil Judge, Kovvur

Friday, this the 13th day of April, 2018

O.S.No.116/2016

BETWEEN:

Sri Namana Satyanarayana @ Bujji, S/o Late Nageswararao, 51 years, Male, Hindu, Business, D.No.3-72, Tallapudi village and Mandal, WGDt, KVR PJCJC. ...Plaintif AND

1.Sri Eetakota Ram Mohana Rao, S/o Late Satyanarayana, 50 years, Male, Carpenter, D.No.2-116, Venugopala Swamy Temple street, Vaddila peta, Tallapudi village and Mandal, WGdt, KVR PJCJC

2.Sri Eetakota Rama Krishna, S/o Ram Mohana Rao, 25 years, Male, Carpenter, D.No.2-116, Venugopala Swamy Temple street, Vaddila peta, Tallapudi village and Mandal, Wgdt, KVR PJCJC

...Defendants

This Suit is coming on 09-04-2018 before me in the presence of Sri D. Ranga Rao, Advocate for plaintif; and of Sri A. Satyanaraya, Advocate for defendants and upon hearing the counsel for plaintif and on perusal of the material on record, and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

This is a suit for recovery of Rs.1,91,146/- being the principal and interest amount due on the promissory note, dated 05.09.2015 executed by the defendant in favour of the plaintif for Rs.1,60,000/- repayable with interest @ 24% p.a, and for costs of the suit.

2.The brief averments of the plaint are :

The 1st defendant is the father of 2nd defendant. The defendants jointly borrowed an amount of Rs.1,60,000/- from the plaintif on 05.09.2015 agreeing to repay the same with interest at 24% p.a. on demand either to the plaintif or to his order and executed the suit promissory note in favour of plaintif. Subsequently, inspite of repeated demands made by the plaintif personally and through mediators, the 2 defendants did not choose to discharge the debt and postponing the same on one pretext or the other. The plaintif issued a notice to the defendants on 01-06-2016. The defendants received notice and kept quite. The defendants are not agriculturists and hence no debt relief laws are applicable to them. Hence, the suit.

3. The brief averments of written statement are:

The 1st defendant filed written statement by denying the averments of plaint which was adopted by 2nd defendant. They contended that the plaintif and his son are doing daily finance business in Tallapudi and surrounding village. These defendants borrowed an amount of Rs.12,500/- on 31.1.2015 on daily finance from the plaintif and his son. At that time, plaintif's son issued one note book and receiving the amount from the defendants and endorsed into the book issued by him. Since 1.2.2015 the defendant is paying the amount. At the time of disbursement of amount of Rs.12,500/- the plaintif's son obtained signature and thumb impressions on empty promissory note.

There was a dispute, defendants and plaintif son with regard to daily finance business. For that reason, the plaintif and his son keep the empty promissory note with then and taking advantage of that, they created the suit promissory note in the name of plaintif with the help of attestors and scribe. The defendants not borrowed Rs.1,60,000/- from the plaintif on 5-9-2015 and not executed the suit promissory note in favour of the plaintif. These defendants are living by doing as rural artisans. The plaintif claimed the interest with excess rate of interest.

4. Basing on the above pleadings the following issues are settled for trial.

1.Whether the suit promissory note is true, valid and legally binding on the defendants and is supported by consideration ?

2.Whether the defendants are liable to pay the suit amount to plaintiff?

3

3.To what relief?

5. During the course of trial on behalf of the plaintif, PWs.1 and 2 are examined and Exs.A1 and A2 are marked. On behalf of defendant, D.W.1 was examined and Ex.B-1 was marked.

6. Heard both sides.

ISSUE No.1 and 2 :

7.According to the plaintif, the 1st defendant is the father of 2nd defendant and they jointly borrowed an amount of Rs.1,60,000/- from the plaintif on 05-09-2015 agreeing to repay the same with interest at 24% p.a. on demand either to the plaintif or to his order and executed the suit promissory note in favour of plaintif. Subsequently, inspite of repeated demands made by the plaintif personally and through mediators, the defendants did not choose to discharge the debt and postponing the same on one pretext or the other. Whereas, the learned counsel for defendant contended that the plaintif and his son are doing daily finance business in Tallapudi and surrounding village and contended that these defendants borrowed an amount of Rs.12,500/- on 31-1-2015 on daily finance from the plaintif and his son. At that time, plaintif's son issued one note book and receiving the amount from the defendants and endorsed into the book issued by him and since 1.2.2015 the defendant is paying the amount. He further contended that at the time of disbursement of amount of Rs.12,500/- the plaintif's son obtained signature and thumb impressions on empty pronote and with the help of that promissory note, the plaintif filed this false case against the defendants. The plaintif claimed the interest with excess rate of interest.

8. Before, I examine the above issues with reference to the evidence on record, I feel that it would be useful to refer the following 4 judgments on the scope of Sec.118 of Negotiable Instruments Act. In a judgment reported in AIR 1961 SC 1316 in the case of Kundanlal

Rallam Vs. Custodian, Evacuee Property, Bombay, where in it was held that Sec.118 of NI Act lays down a special rule of evidence applicable to Negotiable Instruments. The presumption is one of law and there under a Court shall presume, interalia, that the negotiable instrument or the endorsement made or endorsed for consideration. In efect it throws the burden of proof of failure of consideration on the maker of the note or endorser, as the case may be. In the said judgment the Apex Court held that the initial burden would rest on the plaintif to show that the suit promissory note was executed by the defendants. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Sec.118 of NI Act helps to shift the burden to the other side. It was also held that Sec.118 of NI Act imposes a duty on the Court to raise a presumption in favour of the person who holds the instrument that the instrument was made for consideration. It was held that the presumption shifts the burden of proof i.e., the burden of establishing a case that the suit promissory note was not supported by consideration shifts to the defendant. Then, the defendants may adduce direct evidence to prove that the promissory note was not supported by consideration and if he had adduced acceptable evidence and the burden again shifts to the plaintif and so on. The defendants may also rely upon circumstantial evidence, if the circumstances so relied upon or compelling, the burden lay likewise shift again to the plaintif.

9. At this juncture, I shall also consider the decision reported in

A.I.R 2010 S.C 1898 in the case of Rangappa Vrs Mohan, the

Hon'ble Apex Court while dealing with Sec.138 & 139 of N.I. Act had

incidentally referred itself to Sec.118(a) of N.I. Act. In such decision the 5

Hon'ble Supreme Court held that the presumption drawn u/Sec.118(a) of

N.I Act cannot be discharged by merely making some baseless suggestions. It referred itself to the decisions reported in A.I.R. 2008

S.C 2898 in the case of Mallavarapu Kasi Visweswararao Vs

Thadikonda Ramulu Firm and other wherein it was observed “under section 118(a) of the Negotiable Instruments Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal”.

10. In the above said judgment, the Hon’ble Supreme Court had referred itself to a decision reported in A.I.R. 1999 S.C. 1008 in the case of Bharath Barrel and Drum Manufacturing Company Vs.

Amin Chand Pyarelal wherein it was observed that 'upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted the presumption u/sec.118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendants can prove the non existence of consideration by raising a probable defence.

If the defendants are proved to have discharged the initial onus of proof showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintif who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of Negotiable Instrument.

The burden upon the defendants of proving the non-existence of 6 consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies ........... the bare denial of the passing of consideration apparently does not appear to be a defence......”

11. On considering the ratio of the above noted judgments, it would be evident that it would be suffice for the plaintif to lead prima facie evidence regarding the execution of the promissory note before she seeks the Court to raise presumptions under Sec.118 of NI Act.

Once, the plaintif discharges her initial burden, then it is for the defendants to rebut the presumptions lest he should sufer a decree.

12. As noted above during the trial, the plaintif was examined himself as PW.1. He filed affidavit under Order 18 Rule 4 of CPC giving evidence as to the suit facts. In his evidence, he got marked the promissory note dt.05-09-2015 as Ex.A1 and Office copy of legal notice dt.01.06.2016 as Ex.A2. He sought for decree. He also examined the scribe of Ex.A.1 as P.W.2. The attestor of Ex.A1 also filed chief-affidavit as P.W.3. Subsequently, the evidence of P.W.3 was eschewed. P.W.2 gave evidence as if the defendants borrowed Rs.1,60,000/- on 05.09.2015 and he scribed Ex.A1-Promissory note.

13. As stated above, on behalf of the plaintif, the plaintif is examined as PW1 and he reiterated the contents of the plaint and got marked Exs.A-1 and A-2 on his behalf. During the course of cross examination, he denied that the defendant borrowed Rs.12,500/- from him and the document filed along with the written statement was executed by his son regarding the installments and stated that the defendant borrowed Rs.1,60,000/-. He further denied that the defendant owes only Rs.4,000/- at present and at the time of lending money of

Rs.12,500/-, he obtained thumb impression of defendant on Ex.A-1 7 empty promissory note and filed this false suit against the defendants with the support of scribe and attestors.

14.P.W.2 is the scribe of Ex.A.1. He filed his chief-affidavit supporting the case of plaintif. During the course of cross examination, he denied that he came to know that the plaintif is doing money lending business and that no transaction took place as alleged by him and that he is deposing false evidence with a view to help the plaintif.

15.P.W.3 is the one of the attestor to Ex.A.1. He filed his chief- affidavit supporting the case of plaintif. Subsequently, the evidence of

P.W.3 is eschewed.

16. Now, considering the above nature of evidence i.e., the evidence of PW.1, it can be said that the plaintif himself deposed that the defendants jointly executing Ex.A1 Promissory note on 05-09-2015 and borrowed loan of Rs.1,60,000/- and despite of oral demand, he did not discharge the loan amount. Hence, the evidence of PWs.1 and 2 suggested that the consideration was passed under suit promissory note.

17.Hence considering the fact that the plaintif could prima facie prove the presumption drawn against the defendants under Section 118

(a) of Negotiable Instruments Act, the defendants are having a burden to rebut the presumption drawn against them under Section 118 (a) of

Negotiable Instruments Act by proving that Ex.A1 was not executed by them and that too for consideration. To discharge their burden under

Section 118 (a) of Negotiable Instruments Act, the defendants can rely upon the cross-examination of the plaintif’s side witnesses or adduce positive evidence on his behalf. In the instant case, the defendants had cross-examined PW1 and P.W.2 at length and further he had adduced positive evidence by examining himself as DW1 and marked Ex.B-1 on 8 his behalf.

18.To prove their contention, the 1st defendant examined himself as DW1 and filed chief affidavit in lieu of his examination in chief and it is nothing but the reiteration of the contents of his written statement. During his cross examination, he admitted that he is a carpenter, the 2nd defendant is also doing carpenter work and he get timber, make furniture and sell the same. He deposed that his daughter’s marriage was performed in 2015 and he obtained loan from

Andhra Bank, Tallapudi Branch and he paid installments for some time and thereafter he defaulted in paying the same. He admitted that he obtained amounts from Sarpanch of Polavaram for making furniture, but he provided him, the furniture. He denied that Ex.B-1 was issued by

Anaparthi Reddis and that he is exhibiting falsely in this case. He admitted that the signature and thumb impression on Ex.A-1 belongs to him, but stated that the contents of Ex.A-1 are not true and stated that he obtained a loan of Rs.9,940/- for interest and he was indebted for

Rs.12,500/- including interest and he was instructed to pay Rs.120/- to the plaintif per day. He admitted that an I.P.14/2016 was instituted by the plaintif before the Hon’ble Senior Civil Judge’s Court, Kovvur against him but he do not know the contents of his written statement in

IP.14/2016 and stated that he did not inform his counsel that he has pending debt to be discharged to the plaintif.

19.On perusal of the entire evidence available on record, it discloses that the defendant was admitting about the signature and thumb impression on Ex.A-1 belongs to him, but he denied that the contents of Ex.A-1. Even though the D.W.1 got marked Ex.B1 on his behalf to prove the transaction between them, there is no reliable evidence on Ex.B1 to believe version of the defendants. Mere denial 9 that there was no consideration passed under Ex.A1 is not sufficient to prove their contention. The defendants shall adduce acceptable evidence before the court to prove their contention.

20. Considering the evidence on record, the Issue Nos.1 and 2 are answered against the defendants and in favour of the plaintif holding that suit promissory note is true, valid and the plaintif is entitled for the suit claim.

21. Issue No.3:

In the result, this suit is decreed in favour of the plaintif and against the defendant with costs for a sum of Rs.1,91,146/- with interest at the rate of 12% p.a., from the date of the filing of the suit till the date of decree and thereafter at the rate of 6% p.a., on the principal amount of Rs.1,60,000/- from the date of decree till the date of realization.

Typed to my dictation by Stenographer Grade III, corrected, and pronounced by me in the open Court, this the 13 th day of April, 2018.

Principal Junior Civil Judge,

FAC. I Addl.Junior Civil Judge, Kovvur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF;

PW1 : Namana Satyanarayana @ Bujjji

P.W.2 : Mamidala Venkata Ratnam

P.W.3 : Adabala Venkata Ramana(Eschewed)

FOR DEFENDANTS :

D.W.1: Eathakila rammohana Rao

Documents marked

FOR PLAINTIFF

Ex.A1/dt.05-09-2015: Original promissory note executed by defendants in favour of plaintif Ex.A-2/dt.1-6-2016: Office copy of the registered notice issued to the defendants with original postal receipts.

FOR DEFENDANT :

10

Ex.B/dt.--: Note Book

Principal Junior Civil Judge,

FAC. I Addl.Junior Civil Judge, Kovvur.

11

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IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE:: KOVVUR

PRESENT:- Smt.N. Sree Lakshmi,

Principal Junior Civil Judge

FAC.I Addl.Junior Civil Judge

Thursday, the 19th day of April, 2018

C.C. No.132/2016

(Old C.C.No.640/2016 on the file of II Additional Judicial I Class Magistrate, Kovvur.)

Between:

State Rep. by the Sub-Inspector of Police, Deverapalli Police Station, ..…Complainant

And

Sri Kandru Nageswara Rao, S/o Surya Rao, 45 years, Kamma, Duddukuru village, Deverapalli Mandal. ....… Accused

This case is coming on 12-04-2018 for final hearing before me in the presence of Learned A.P.P. on behalf of Complainant/State represented by the police, and of Sri K. Narasimha Rao, Advocate for the accused and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Devarapalli Police Station, filed charge sheet against the accused in Crime No.167/2016 for the offence under Section 188 IPC and Sub-Rule(3) of 9(B) of A.P. Minor Mineral

Concession Rules, 1966 with the following allegations:

2.On 09-07-2016 on credible information, P.W.4 Village Revenue

Officer, Duddukuru village found 60 units of sand heaps on the vacant site of accused illegally dumped by the accused. No construction of building was made in that site, the sand is dumped in that site with a view to sell that sand illegally during scarcity for higher price.Basing on the report of P.W.4,

Village Revenue Officer, a case in Cr.No.167/2016, U/sec.188 IPC and Sub- 2

Rule(3) of 9(B) of A.P. Minor Mineral concession Rules, 1966 was registered by L.W.5 Sub-Inspector of police, and investigated into. During the course of investigation, he examined the witnesses and recorded their statements, served Sec.41-A Cr.P.C. notice on the accused. After completion of investigation, he filed charge sheet against the accused.

03. After perusal of the record, the case was taken on file for the offence under Rule 9(B)(3) of A.P. Minor Mineral Concession Rules, 1966 against the accused and numbered as C.C.No.640 of 2016 on the file of the

II Additional Judicial I Class Magistrate, Kovvur.

04. On appearance of the accused, copies of case documents have been furnished to the accused under Section 207 Cr.P.C. When he was were examined under Section 251 of the Code of Criminal Procedure for the offence under Rule 9(B)(3) of A.P. Minor Mineral concession Rules, 1966 by explaining the substance of accusation against him, he pleaded not guilty and claimed to be tried. Hence the matter is posted for trial.

05. At that stage, in terms of the orders of the Honourable District

Court in Dis. No. 7281, dt: 22-09-2016 the matter has been transferred to the file of I Additional Junior Civil Judge's Court, Kovvur and renumbered as

CC No. 132/2016. The prosecution, to bring home the guilt of the accused,

has examined PWs.1 to 5 and got marked Exs.P.1 to P7.

06.After closure of prosecution evidence, the accused was examined

U/sec.313 Cr.P.C., by putting incriminating material deposed by the prosecution witnesses for which he denied the same. He did not adduce any oral or documentary evidence on his behalf.

07. Heard the arguments of learned Assistant Public Prosecutor and learned counsel for accused.

08. The learned APP contended that the prosecution has examined

P.Ws.1 to 5 and got marked Exs.P-1 to P-7. P.Ws.1 and 2 are eye witnesses.

They turned hostile to the case of the prosecution. P.W.3 is mediator. He didn't support the case of the prosecution. P.W.4 is VRO. She stated about 3 the report and offence committed by the accused. P.W.5 is Investigating officer. He deposed about the registration of case and investigation done by him. The evidence of P.Ws.4 and 5 is reliable and is sufficient to convict the accused. Hence, the prosecution proved the guilt of the accused beyond all reasonable doubt.

09.Per contra, the learned counsel for accused contended that there were several contradictions in the evidence of P.Ws.4 and 5 and they are fatal to the case of the prosecution. He contended that since P.Ws.1 to 3 didn't support the case of the prosecution as such the evidence of P.Ws.4 and 5 is not reliable and not sufficient to convict the accused. Hence, the prosecution failed to prove the guilt of the accused and he is entitled for acquittal.

10. Now, the point for determination is: -

Whether the prosecution proved the guilt of the accused for the offence under Rule 9(B)(3) of A.P. Minor Mineral

concession Rules, 1966 beyond all reasonable doubt?

11. Point :-

I have perused the entire evidence and other material available on record. In the present case, the accused is charged for the offence under

Rule 9(B)(3) of A.P. Minor Minerals concession Rules, 1966. For better understanding, the relevant provision was reproduced here.

Rule 9-B(3) of Andhra Pradesh Minor Mineral Concession Rules,

1966:

If any stocking of more than the required quantity of sand for construction purposes is found, such stocks of sand shall be seized by the officer authorized in this behalf by the District Collector and District

Magistrate. Such seized sand stocks shall be allotted for any

Government works. The person responsible for such illegal stocks of sand shall be punishable with imprisonment upto 2 years and a fine of rupees Two lakhs.

4

12. During the course of trial, the prosecution has examined P.Ws.1 to 7.

P.Ws.1 and 2 are eye witnesses to the alleged incident. P.Ws.1 and 2 deposed that the accused getting his house constructed in his neighbouring home as such the accused brought and dumped sand for the purpose of the construction of the said house. The sand was dumped in his site which is beside his site. But they do not know anything about this case. At that stage, the learned APP requested to declare the witnesses as hostile and they were declared as hostile. P.W.3 is the mediator. He deposed that he never acted as mediator in this case and he did not draft mediators report, that Ex.P-3 is his signature on mediators report, but he does not know the contents of said mediators report. They all turned hostile and didn’t support the case of the prosecution. The learned APP cross examined them, but nothing was made out in their cross examination.

13.P.W.4Village Revenue Officer deposed that the Mandal Revenue officer instructed them to observe the illegal black marketing of sand and as such she went to the scene offence to observe the scene. On 09-07-2016 they went to the scene of offence which is vacant site of accused where about 60 units of sand was illegally dumped and on enquiry they came to know the sand was dumped by the accused. Immediately, she informed the same to the police and gave Ex.P-4 written report to the police. After about one hour, herself and the police went to the scene of offence and the police called the accused and enquired about the sand and asked him to show any documents to prove that he purchased the sand. But the accused stated that he do no possess any such document. On investigation, the police came to know that the accused dumped the sand illegally. The sand was seized and handed over to them and a seizure report was drafted on which she signed. During cross-examination, she deposed that she do not know how many sq.feet of sand equals to one unit. She admitted that she did not mention in Ex.P-4 report about the height or width of the heap of sand and she did not get the heap of sand measured and also she did not verify the 5 ownership details of the site in the panchayat office and she did not obtain any certificate to that effect. She further deposed that both Ex.P-4 and P-5 were drafted by some other persons who was beside him at that time and stated that the person who drafted mediators report is one N. Prakash who is the resident of Tallapudi village. She admitted that there is Village

Revenue Assistant in Duddukuru village and he is a literate and stated that her husband N. Prakash is no way concerned with her duty at Duddukuru village and stated that the numeral 60 was overwritten in Ex.P-4 report. She further deposed that she did not inform to the Mandal Revenue Officer that she was sick and she had taken the assistance of her husband on the date of alleged offence and stated that she did not inform the mining department that she handed over 60 units of sand. She further deposed that she do not know the formalities to be observed when the sand has been seized.

14.P.W.5 is the Investigating officer, Devarapalli PS deposed that on 9.7.2016 at 10-30 AM he received Ex.P-4 written report from P.W.4. Based on it, he registered a case in Cr.No.167/2016 U/Sec. 188 of IPC and Sub Rule (3) of 9(B) of AP Mines and Minerals Rule, 1966. He visited the scene of offence and found 60 units of sand heaps was illegally dumped by the accused. He handed over the sand heaps to P.W.4 for safe custody. He examined the witnesses and recorded their statements. He drafted the scene observation report in the presence of P.Ws.3 and 4, drew Ex.P-7 Rough sketch, served notice on the accused under Section 41-A Cr.P.C., and after completion of investigation, he filed charge sheet. During cross-examination, he deposed that he cannot say the reason for delay of 30 hours in sending the original FIR to Court. According to him, there is no delay in sending FIR .

He further deposed that after registering the case, he shall commence investigation and stated that he has mentioned the details of the accused in

Col. No.7 of original FIR and also stated that P.W.4 gave details of the accused to him. He further deposed that the hand writing of the report belongs to P.W.4 and she drafted mediators report in the presence of the 6 accused. She further deposed that except, P.Ws.1 to 4 there were no other persons at the sand. He has not noted the measurements of the sand heap and also he has not produced the seized sand before the court and stated that he handed over the seized sand to Mandal Revenue Officer as per

G.O.Ms.No.35.

15.After going through the entire evidence available on record, it appears to the Court that since P.Ws.1 to 3 who are cited as eye witnesses and mediator to seizure of sand, did not support the case of the prosecution, evidence of P.Ws.4 and 5 have to be scrutinized carefully. P.W.4 is the material witness in the present case. She has deposed that she noticed accused is in possession of 60 units of sand heap without permission. Since, the accused did not submit any record with regard to sand as such she seized the sand under the cover of mediators report. She has deposed that her husband N. Prakash has drafted Ex.P-4 mediators report but her husband is not a VRA of that village and she stated that there are two VRAs to

Duddukuru village and they are available at the time of seizure of sand.

However, the prosecution failed to explain the reason for drafting Ex.P-4 report by the husband of P.W.4 even though VRA’s are available in that village. While coming to the evidence of P.W.5, he deposed that Ex.P4 report was drafted by P.W.4 with her own hand writing. However, P.W.4 has clearly deposed that Ex.P-4 report was drafted by her husband. Therefore, these are two inconsistent statements with regard to execution of Ex.P-4 mediators report.

16.Further, P.W.5 Investigating officer admitted in his cross- examination that there was delay of 30 hours in sending original FIR to the

Court. There was no proper explanation from the prosecution with regard to delay in sending FIR to the Court and it is fatal to the case of the prosecution

17.While coming to the seizure of sand, P.W.4 deposed in her evidence that she do not know the procedure of seizure of property. She 7 stated that she seized the sand, but she did not inform to her Mandal

Revenue officer and also to Mines Department. Except her oral statement, there is no evidence before the Court to show that she seized the sand. She did not take any photographs to the sand to prove the seizure of sand.

P.Ws.1 and 2 who are the neighbours of accused have deposed in their evidence that they do not know anything about the facts of the case.

18.As rightly pointed out by the learned defence counsel, there were several contradictions in the evidence of P.Ws.4 and 5 and they are fatal to the case of the prosecution. There is no evidence before the court that the accused was in possession of 60 units of sand which amounts to an offence since except P.W.4, there is no other evidence before the court to prove the same. Further, P.W.4 deposed that she do not know the procedure of seizure of sand and even she didn't take any photographs to sand heap. From the entire evidence available on record, it does not inspire the confidence of the court to believe the case of the prosecution. Hence, I hold that the prosecution utterly failed to prove the guilty of the accused for the offence under Rule 9(B)(3) of A.P. Minor Minerals concession Rules, 1966 beyond all reasonable doubt. Accordingly, the point is answered against the prosecution.

19. In the result, the accused is found not guilty for the offence punishable under Rule 9(B)(3) of A.P. Minor Minerals concession Rules, 1966.

Accordingly, the accused is acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C.

Typed to my dictation by Personal Assistant, corrected, signed and pronounced by me in the open court, this the 19th day of April, 2018.

Sd/- N. SREE LAKSHMI

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC.I ADDL.JUNIOR CIVIL JUDGE,

KOVVUR.

8

Appendix of Evidence

Witnesses Examined

For Prosecution: For Defence

P.W.1 :- A. Krishna Manikanta None -

P.W.2 :- U.V. Satyanarayana

P.W.3:- Kandru Rama Krishna

P.W.4 : P.L.A. Mangathayaru

P.W.5 : Ch. Anjaneyulu

Exhibits Marked

For Prosecution: For Defence

Ex.P1:- Sec. 161 Cr.P.C statement of PW.1 Nil Ex.P.2:- Sec. 161 Cr.P.C statement of PW.2 Ex.P.3:- Signature of P.W.3 on the mediators report Ex.P.4:- Written report Ex.P-5:- Seizure panchanama Ex.P-6:- FIR Ex.P-7: Rough sketch

Material Objects Marked

- Nil -

Id/- N.S.L.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC.I ADDL.JUNIOR CIVIL JUDGE,

KOVVUR.

//True Copy//

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC.I ADDL.JUNIOR CIVIL JUDGE,

KOVVUR.

CALENDAR AND JUDGMENT

Calendar cases tried by the I Addl. Junior Civil Judge, Kovvur

Date of Offence : 9-7-2016

Date of report or Complaint : 9-7-2016

Date of apprehension of accused : 41-A Cr.PC notice on the accused

Date release on bail, if any: --

Date of commencement of trail: 04-10-2017

Close of trial : 12-04-2018

Date of sentence or other order : 19-04-2018 9

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.132/2016 on the file of I Addl.Junior Civil

Judge, Kovvur.

Complainant : State represented by the Sub-Inspector of Police, Devarapalli Police Station, in Crime No.167/2016 Under Rule. 9(B)(3) of A.P. Minor Minerals concession Rules, 1966

Name of the accused, Father name, Age, calling, Religion, Village and Mandal.

Kandru Nageswara Rao, S/o Surya Rao, 45 years, Kamma, Duddukuru village, Devarapalli Mandal.

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Offence : Under Rule. 9(B)(3) of A.P. Minor Minerals concession Rules, 1966

Finding : Not guilty.

Sentence : In the result, the accused is found not guilty for the offence punishable under Rule 9(B)(3) of A.P. Minor Minerals concession Rules, 1966. Accordingly, the accused is acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C.

Sd/- N. SREE LAKSHMI

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC.I ADDL.JUNIOR CIVIL JUDGE,

KOVVUR.

//True Copy//

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC.I ADDL.JUNIOR CIVIL JUDGE

KOVVUR.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, KOVVUR.

PRESENT:- Smt.N.Sree Lakshmi, B.Sc, L.L.B.,

Principal Junior Civil Judge

Wednesday, this the 25th day of April, 2018

O.S.No.163/2017

BETWEEN:

Sri Bandaru Veera Venkata Balarama Krishna Prasad, S/o Kannayya, D.No.1-15, Business, R/o Bhimolu, Gopalapuram Mandal, WGDt., ...Plaintif AND

1.Smt Polisetty Naga Laskhmi, W/o Subbarao, Business, R/o D.No.2-16, Near Sub Registrar office, Vegeswarapuram, Tallapudi Mandal, WGDt

2.Sri Polisetti Subba Rao, S/o Seshagiri, Business, R/o D.No.2-16, Near Sub Registrar office, Vegeswarapuram, Tallapudi Mandal, WGDt

...Defendants

This Suit is coming on 18-04-2018 before me in the presence of Sri A. Satyanarayana, Advocate for plaintif; and Sri D. Ranga Rao, Advocate for defendants and upon hearing the counsel for plaintif and on perusal of the material on record, and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

This is a suit for recovery of Rs.1,36,333/- being the principal and interest amount due on the promissory note, dated 05-04-2016 executed by the defendants 1 and 2 jointly in favour of the plaintif for Rs.1,00,000/- repayable with interest @ 24% p.a, and for costs of the suit.

2.The brief averments of the plaint are :

1st defendant herein is the wife of 2nd defendant and both the defendants are living together jointly. The defendants 1 and 2 jointly borrowed an amount of Rs.1,0,000/- from plaintif on 05-04-2016 towards their business purpose and jointly executed a suit promissory note on the even date in favour of the plaintif, agreeing to repay the same with interest at 24% p.a. to his order on demand. Subsequently, 2 inspite of repeated demands made by the plaintif personally and through mediators, the defendants did not choose to discharge the debt and postponing the same on one pretext or the other. The plaintif got issued a registered legal notice on 10.04.2017 to the defendants. Even after issuance of the said notice, the defendants did not choose either to discharge the debt or give any reply. The defendants are doing business and debt relief laws will not applicable to the defendants and so the plaintif claimed the interest at contract rate.

3. The brief averments of written statement are:

The defendants filed written statement by denying the all averments of the plaint except the relationship between the defendants.

He submitted that the plaintif lend only Rs.63,000/- in three installments in the months of March and April, 2017 to the defendants for purpose of medical expenses to the daughter of these defendants with an agreed interest of 18% pa on the recommendation of the plaintif’s relative,

Kaigala Ram Babu of Vegeswarapuram. At the time of disbursement of the 1st installment of Rs.50,000/-, the plaintif obtained the signatures of the defendants on empty printed promissory note. At that time, there are no attestors or any scribe. Due to severe financial troubles circumvent of the family of the defendants besides the demise of her daughter BhuLakshmi in the month of June, 2017 for which the very debt was borrowed from the plaintif, the defendants could not discharge the debt to the plaintif and sought time till the month of March, 2018. The defendants never did any business at any time. The 1st defendant is a household woman. The 2nd defendant is eking out his lively hood by doing agricultural coolie work when ever there is. After receipt of the registered notice, 2nd defendant placed the dispute before the plaintif's relative the said Rama Babu, the plaintif acknowledge that the principal 3 amount lent out is Rs.63,000/- only payable at a rate of 18% interest.

Thereon, the 2nd defendant prevailed and sought time till the March, 2018 for its discharge who then openly accepted, but the plaintif not withstanding to the promise, resorted to bring the suit meanwhile by putting excess principal amount of Rs.37,000/- and interest of RS.0.50 for unlawful gain on the empty promissory note obtained. The attestors and scribe are totally unknown to the defendants.

4. Basing on the above pleadings the following issues are settled for trial.

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

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

3. To what relief?

5.During the course of trial, on behalf of plaintif, P.Ws.1 to 3 were examined and Exs.A-1 to 3 were marked. On behalf of defendant,

D.W.1 was examined and no documentary evidence on behalf of defendant.

6. Heard both side counsels.

ISSUES No. 1 and 2:

7.According to the plaintif, both the defendants are wife and husband and living together. The defendants 1 and 2 jointly borrowed an amount of Rs.1,00,000/- from plaintif on 05-04-2016 towards their business purpose and jointly executed a suit promissory note on the even date in favour of the plaintif, agreeing to repay the same with interest at 24% p.a. to his order on demand. Subsequently, inspite of repeated demands made by the plaintif personally and through mediators, the defendants did not choose to discharge the debt and postponing the same on one pretext or the other. The plaintif got issued a registered legal notice on 10.04.2017 to the defendants. Even after issuance of the said notice, the defendants did not choose either to 4 discharge the debt or give any reply. Where as the contention of the defendants is that they borrowed only Rs.63,000/- but the plaintif filed suit by colluding with attestors and scribe.

8. Before I examine the above issues with reference to the evidence on record, I feel that it would be useful to refer the following judgments on the scope of Sec.118 of Negotiable Instruments Act. In a judgment reported in AIR 1961 SC 1316 in the case of Kundanlal

Rallam Vs. Custodian, Evacuee Property, Bombay, it was held that

Sec.118 of NI Act lays down a special rule of evidence applicable to

Negotiable Instruments. The presumption is one of law and thereunder a

Court shall presume, interalia, that the negotiable instrument or the endorsement made or endorsed for consideration. In efect it throws the burden of proof of failure of consideration on the maker of the note or endorser, as the case may be. In the said judgment the Apex Court held that the initial burden would rest on the plaintif to show that the suit promissory note was executed by the defendants. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Sec.118 of NI Act helps to shift the burden to the other side. It was also held that Sec.118 of NI Act imposes a duty on the Court to raise a presumption in favour of the person who holds the instrument that the instrument was made for consideration. It was held that the presumption shifts the burden of proof i.e., the burden of establishing a case that the suit promissory note was not supported by consideration shifts to the defendant. Then the defendants may adduce direct evidence to prove that the promissory note was not supported by consideration and if they had adduced acceptable evidence and the burden again shifts to the plaintif and so on. The defendants may also rely upon circumstantial evidence, if the circumstances so relied upon or compelling, the burden 5 lay likewise shift again to the plaintif.

9. At this juncture, I shall also consider the decision reported in

A.I.R 2010 S.C 1898 in the case of Rangappa Vrs Mohan, the

Hon'ble Apex Court while dealing with Sec.138 & 139 of N.I. Act had

incidentally referred itself to Sec.118(a) of N.I. Act. In such decision the

Hon'ble Supreme Court held that the presumption drawn u/Sec.118(a) of

N.I Act cannot be discharged by merely making some baseless suggestions. It referred itself to the decisions reported in A.I.R.2008

S.C 2898 in the case of Mallavarapu Kasi Visweswararao Vrs

Thadikonda Ramulu Firm and other wherein it was observed “under section 118(a) of the Negotiable Instruments Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendants to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal”.

10. In the above said judgment, the Supreme Court had referred itself to a decision reported in A.I.R.1999 S.C.1008 in the case of

Bharath Barrel and Drum Manufacturing Company Vs. Amin

Chand Pyarelal wherein it was observed that 'upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted the presumption u/sec.118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of consideration by raising a probable defence.

If the defendant is proved to have discharged the initial onus of proof 6 showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintif who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of Negotiable Instrument.

The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies ........... the bare denial of the passing of consideration apparently does not appear to be a defence......”

11. On considering the ratio of the above noted judgments, it would be evident that it would be suffice for the plaintif to lead prima facie evidence regarding the execution of the promissory note before he seeks the Court to raise presumptions under Sec.118 of NI Act. Once, the plaintif discharges his initial burden, then it is for the defendant to rebut the presumptions lest he should sufer a decree.

12. As noted above during the trial, the plaintif was examined himself as PW.1. He filed affidavit under Order 18 Rule 4 of CPC giving evidence as to the suit facts. In his evidence, he got marked the promissory note dt.05-04-2016 as Ex.A1, the legal notice dt.10.04.2017 as Ex.A2 and Original acknowledgement as Ex.A3. He sought for decree.

He examined attestors of Ex.P-1 as P.Ws.2 and 3. They gave evidence as if the defendants borrowed Rs.1,00,000/- on 05-04-2016 executing

Ex.A1- Promissory note.

13. As stated above, on behalf of the plaintif, the plaintif is examined as PW1 and he reiterated the contents of the plaint and got marked Exs.A-1 to A-3 on his behalf. During the course of cross examination, he denied that the defendants borrowed an amount of

Rs.63,000/- at the rate of interest 18 % p.a. and they have paid 7

Rs.50,000/- towards 1st installment and that he has obtained empty promissory note from the defendants at the time of said transaction and got filed this false suit.

14.P.W.2 is the attestor to Ex.A.1. He filed his chief-affidavit supporting the case of plaintif. During the course of cross examination, he denied that no transaction took place as alleged by him and that he is deposing false to support PW1 since he is his relative. P.W.3 is the attestor to Ex.A.1. He filed his chief-affidavit supporting the case of plaintif.

15. Now, considering the above nature of evidence i.e., the evidence of PW.1, it can be said that the plaintif himself deposed that the defendants 1 and 2 jointly executing Ex.A1 Promissory note on 05.04.2016 borrowed an amount of Rs.1,00,000/- and despite of oral demand, they did not discharge the loan amount. Hence, the evidence of

PWs.1 to 3 suggested that the consideration was passed under suit promissory note.

16.Hence considering the fact that the plaintif could prima facie prove the presumption drawn against the defendant under Section 118

(a) of Negotiable Instruments Act, the defendant is having a burden to rebut the presumption drawn against him under Section 118 (a) of

Negotiable Instruments Act by proving that Ex.A1 was not executed by him and that too for consideration. To discharge his burden under

Section 118 (a) of Negotiable Instruments Act, the defendants can rely upon the cross-examination of the plaintif’s side witnesses or adduce positive evidence on their behalf. In the instant case, the defendants had cross-examined Pws.1 to 3 at length and further he had adduced positive evidence by examining himself as DW1.

17.To prove his contention, the 2nd defendant examined as DW1 8 and filed chief affidavit in lieu of his examination in chief and it is nothing but the reiteration of the contents of their written statement.

During his cross examination, he admitted that the plaintif issued prior to notice to him and his wife and stated that he requested the plaintif that he will pay the amount. He further admitted that after receiving summons from the Court, he approached the plaintif and requested him that he will pay the amount to him. The signatures on Ex. A1 belongs to him and his wife. He admitted that he borrowed amount from the plaintif on execution of promissory note by him and his wife but he stated that he borrowed only Rs.63,000/- from the plaintif.

18.On perusal of the entire evidence available on record, it discloses that the defendants were admitting their signatures on Ex.A-1

Promissory note, but they denied about borrowing of Rs.1,00,000/- on 05-04-2016. Their contention is that they borrowed only Rs.63,000/- from the plaintif. There is no proper explanation from the defendants to believe his version. Mere allegation that they borrowed amount of

Rs.63,000/- is not sufficient to prove their contention. On perusal of the evidence, it appears to the court that the defence took by the defendants is that the plaintif obtained promissory note from the defendants and got filed this suit based on the alleged promissory note.

Even though D.W.1 examined, nothing was elicited in favour of the defendants in his evidence. Further, nothing was elicited in their favour from the cross examination of P.Ws.1 to 3. The evidence adduced by the defendants is not sufficient for the court to believe his contention.

19. Considering the evidence on record, the Issue No.1 and 2 are answered against the defendants and in favour of the plaintif holding that suit promissory note is true, valid and the plaintif is entitled for the suit claim.

9

20. Issue No.3:

In the result, this suit is decreed in favour of the plaintif and against the defendants with costs for a sum of Rs.1,36,333/- with interest at the rate of 12% p.a., from the date of the filing of the suit till the date of decree and thereafter at the rate of 6% p.a., on the principal amount of Rs.1,00,000/- from the date of decree till the date of realization.

Typed to my dictation by my Stenographer Grade III, corrected, signed and pronounced by me in the open Court, this the 25 th day of April, 2018.

Principal Junior Civil Judge,

Kovvur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff P.W.1 : Bandaru Veera Venkata Balarama Krishna Prasad

P.W.2 :Vinti Rama Krishna

P.W.3 : Kakulapati Srinu

For Defendant D.W.1: Polisetti Subba Rao

Documents marked

For Plaintiff

Ex.A-1/dt.05-04-2016: Original promissory note executed by the defendants in favour of plaintif

Ex.A-2/dt.10-04-2017: Office copy of registered notice along its original postal receipt Ex.A-3/dt.--: Original postal acknowledgement from the defendants

For Defendant: Nil

Principal Junior Civil Judge,

Kovvur.

10