Sri N.Sriramakrishna

O.S.No.207/2015 1 (Fair) DATED: 21-03-2017

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE AT

ANAKAPALLE

Present : Sri N.SRI RAMA KRISHNA,

Principal Junior Civil Judge,

Anakapalle

TUESDAY, THE 21 st DAY OF MARCH, 2017

ORIGINAL SUIT NO.207/2015

Between:

Boddu Srimannarayana Murthy S/o (late) Subbarao, Hindu, aged 74 years, Business, resident of D.No.3-4-47, Narasingaraopeta, Old Telephone Exchange street, Anakapalle, Visakhapatnam District.

… Plaintiff .. And:

K.J.Srinivas S/o Jagan Mohan Rao, aged 60 years, Hindu, Business, residing at D.No.2-34, beside of Kondayya Hotel street, Mudinepalli Town & Post, Krishna District.

... Defendant ..

This suit is coming before me on 14.03.2017 for final hearing in the presence of Sri G.Nageswararao, Learned Counsel for Plaintiff and of Sri

D.V.S.K.Vara Prasad, Learned counsel for Defendant and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a suit to recover a sum of Rs.2,33,100/- (Rupees Two

Lakh Thirty Three Thousand One Hundred Only), being the principal and interest due under a Bank transaction through a Cheque issued by the plaintiff in favour of the defendant as a hand loan vide Cheque bearing

No.609639 to an amount of Rs.1,50,000/- drawn on Indian Overseas Bank,

Anakapalle Branch, dt.11.07.2013 together with subsequent interest at the rate of 24% per annum and for costs of the suit.

02.The averments of the plaint, in brief, are that the plaintiff and defendant are friends since long time. The defendant is a businessman and he incurred losses in his business. The defendant approached the plaintiff

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several times and requested him to lend an amount for his family and business necessities. The plaintiff agreed to lend the amount as a hand loan and he did not insist the defendant to execute any peace of paper in his favour out of their close friendship. The defendant voluntarily agreed to clear the debts with interest at the rate of 24% per annum and it was accepted by the plaintiff. The financial transactions between the plaintiff and defendant were done through cheques and sometimes depositing into the account of defendant through Bank and all the transactions with the defendant were through Indian Overseas Bank, Anakapalle branch.

03.It is further averred that the defendant borrowed several amounts from the plaintiff and besides an amount of Rs.1,50,000/- on 11.07.2013 through a Cheque bearing No.609639 drawn on Indian

Overseas Bank, Anakapalle branch and the said transaction is a basis for emanating cause of action to file the suit. The defendant totally borrowed an amount of Rs.3,47,000/- from the plaintiff. The plaintiff demanded the defendant to discharge the due amount to him orally, but the defendant promised to pay the total amounts and again postponing the same on one pretext or the other. The plaintiff out of their friendship kept quiet and mean while some of the debts were time barred and he filed the suit for recovery of the amount out of the transactionthrough a cheque bearing

No.609639 for an amount of Rs.1,50,000/- dated 11.07.2013. Later, the plaintiff got issued a registered lawyer notice dated 17.10.2015 to the defendant to pay total amount, but in vain. It is further averred that as the defendant is a business man, he is not entitled for any debt relief laws.

Hence, the suit for recovery of the amount of Rs.2,33,100/- with subsequent interest at the rate of 24% per annum and for costs of the suit.

04.The defendant filed a written statement by admitting the acquaintance between the plaintiff and himself through their business. The

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defendant denied that he had borrowed different amounts from the plaintiff on different dates by a way of cheques or through online transactions. The defendant contended that the plaintiff was a Civil Contractor and he used to assist him financially and the plaintiff repay the amounts by depositing into his Bank account and some times through cheques. It is further contended that the plaintiff sustained huge losses in the business and taking advantage of the earlier transactions between himself and plaintiff without any consideration, the plaintiff got created the cause of action and filed the suit for wrongful gain. The further contention of the defendant is that he did not receive any legal notice from the plaintiff and that there is no liability for him to pay the due amount and that there is no cause of action to file the suit. Hence, prays to dismiss the suit with costs.

05.Basing on the above pleadings, the following issues have been framed for trial.

01. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for?

02. To what relief?

06.During course of trial, on behalf of the plaintiff, the plaintiff himself examined as PW1 and one of his supporting witness has been examined as PW2 and got marked Exs.A1 to A3. On behalf of the defendant, the defendant himself examined as DW1 and no documents were marked.

07.Heard both sides.

ISSUE No.1:

08.The claim of the plaintiff herein is for recovery of an amount of

Rs.2,33,100/- from the defendant together with subsequent interest at the rate of 24% per annum, which the defendant borrowed an amount of

Rs.1,50,000/- as a hand loan and the consideration was passed through a

O.S.No.207/2015 4 (Fair) DATED: 21-03-2017

cheque bearing No.609639, dt 11.07.2013 drawn on Indian Overseas Bank,

Anakapalle branch. Since the plaintiff approached the court with a prayer to recover the amount mentioned above, it is for the plaintiff to establish his case on the strength of either oral or documentary evidence. The plaintiff in order to discharge the initial burden lies upon him, mainly relied upon the testimonies of Pws 1 and 2 apart from exhibiting Exs. A1 to A3.

09.PW1 testified that the defendant and himself are friends since long time. The defendant being a businessman incurred losses in his business. Out of their friendship, the defendant approached him to lend an amount for his family and business necessities. Accordingly, PW1 lent an amount of Rs.1,50,000/- to the defendant on 11.07.2013 through a cheque bearing No.609639 drawn on Indian Overseas Bank, Anakapalle branch.

Ex.A1 an is entry in the pass book of PW1 regarding withdrawal of an amount of Rs.1,50,000/- through a cheque bearing No.609639 drawn on

Indian Overseas Bank, Anakapalle branch from the savings Bank Account of

PW1 on 11.07.2013. The defendant voluntarily agreed to discharge the

principal amount with subsequent interest at the rate of 24% per annum.

The defendant also borrowed different amounts at different dates totaling to an amount of Rs.3,47,000/-. Subsequently, PW1 orally demanded the defendant to repay the due amount to him, the defendant promised to pay the amount and postponing the same under one pretext or the other.

Thereupon, PW1 got issued Ex.A2 to the defendant demanding him to pay the total amount, but in vain. Ex.A3 is the postal receipt dt.17.10.2015.

PW1 further added that some of the amounts borrowed by the defendant are time barred, he restricted his claim regarding the transaction done through cheque bearing No.609639 on 11.07.2013 to an amount of

Rs.1,50,000/- with subsequent interest at the rate of 24% per annum.

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10.PW1 was cross examined at length by the learned counsel for defendant. In due course of cross examination PW1 admitted that the defendant used to attend works on his behalf. PW1 categorically denied that the defendant used to incur the expenditure on his behalf and later he repays the amount to him.

11.PW2 testified that the defendant requested himself as well as the PW1 to lend an amount of Rs.1,50,000/- on the same day. As he was unable to lend such an amount, he recommended PW1 to give the amount to the defendant, but PW1 was unwilling as the defendant was due some amounts to him. At last, on his pressure, PW1 lent an amount of

Rs.1,50,000/- through a cheque bearing No.609639 drawn on Indian

Overseas Bank, Anakapalle branch on 11.07.2013. The defendant also informed him that he withdrew the amount of Rs.1,50,000/-. During cross examination, PW2 denied that the defendant never requested him to lend the amount and also he never advised the plaintiff to lend the amount to the defendant.

12.On the other hand, the case of the defendant is that he got acquaintance with the plaintiff as they belong to business community and used to do business at several places including Hyderabad. Out of their friendship, the defendant used to provide financial assistance to the plaintiff on several occasions and later the plaintiff reimburse the amounts by depositing into his account or issuing cheques in his name. Except that, he never borrowed any amount from the plaintiff as a hand loan as alleged and that he never received any legal notice from the plaintiff and thereby he is not liable to pay any amount. In support of his case, the defendant himself examined as DW1, but no documents were produced before the court.

O.S.No.207/2015 6 (Fair) DATED: 21-03-2017

13.DW1 testified that PW1 is a friend of him and out of the said friendship, he provided financial assistance to the plaintiff who being a Civil

Contractor. Later, PW1 reimbursed the due amounts to him by way of depositing into the Bank or issuing a cheque to him. Except the transactions as stated supra, he never borrowed any amount from the PW1 as he had no need to borrow any amount from him since he is financially sound and capable of doing things personally. DW1 further added that PW1 filed the suit to harass him taking advantage of the earlier transactions and that he was unaware of the alleged Ex.A2 as PW1 sent it with insufficient address.

14.During cross examination by the counsel for Plaintiff, DW1, admitted the friendship between himself and plaintiff. He also admitted that there are no disputes between himself and plaintiff except the suit transaction. DW1 categorically denied that he had never provided financial assistance to the PW1. DW1 further admitted that he has no recorded proof in respect of financial transactions between himself and plaintiff. Further,

DW1 admitted that he withdrew the amount from his account which was transferred by the plaintiff. He has never issued any legal notice to the PW1 demanding him to discharge the amount due to him.

15.On perusal of the pleadings, testimonies of the witnesses on either side, there is no dispute regarding the fact that the plaintiff and defendant are friends and that the defendant used to attend the works of the plaintiff and inturn the plaintiff used to pay amount towards expenses incurred by the defendant on behalf of the plaintiff. It is also not in dispute that the plaintiff gave an amount of Rs.1,50,000/- to the defendant by way of cheque bearing No.609639 drawn on Indian Overseas Bank, Anakapalle branch on 11.07.2013 and the said amount was withdrawn by the defendant. Ex.A1 is an entry in the pass book of Indian Overseas Bank,

O.S.No.207/2015 7 (Fair) DATED: 21-03-2017

Anakapalle branch issued in the name of plaintiff. The relevant entry made it clear that the defendant withdrew the amount of Rs.1,50,000/-.

16.According to the PW1, the defendant incurred losses in his business and requested him to lend an amount for his family and business necessities. Out of their friendship, he gave an amount of Rs.1,50,000/- to the defendant by way of cheque drawn on Indian Overseas Bank,

Anakapalle branch bearing cheque No.609639 on 11.07.2013. PW1 further said that the defendant voluntarily agreed to clear the debt with an interest @ 24% per annum and he agreed for the same. Later, the defendant failed to repay either principal or interest and postponing the repayment on some pretexts though admitting the claim. After that, he got issued Ex.A2 legal notice demanding him to repay the debt, but in vain. Ex.A3 is the postal receipt. Though, PW2 is not a direct witness to the transaction, his evidence is in tune with the evidence of PW1. According to PW2, the defendant also requested him to lend an amount of Rs.1,50,000/- besides requesting the plaintiff, he could not lend the amount due to lack of funds, but he requested the plaintiff to give the amount and later he came to know from the plaintiff as well as defendant that the defendant borrowed an amount of Rs.1,50,000/- form the plaintiff through a cheque bearing

No.609639 drawn on Indian Overseas Bank, Anakapalle branch on 11.07.2013. So, the evidence of Pws 1 and 2 coupled with Exs.A1 to A3 made it clear that the defendant borrowed an amount of Rs.1,50,000/- from the plaintiff through a cheque and later failed to discharge the same inspite of demands orally as well as through Ex.A2 legal notice.

17.In contra, the contest of the defendant is that he has never borrowed any amount from the plaintiff as alleged and that he had no need to borrow any amount from the plaintiff as he was financially well off. He further contended that he used to attend works of plaintiff and sometimes

O.S.No.207/2015 8 (Fair) DATED: 21-03-2017

he assist the plaintiff financially and later the plaintiff used to reimburse the amounts by way of cheques or through online transaction. Similarly, the present transaction is nothing but reimbursement of earlier transaction, but the plaintiff taking advantage of the transaction, got filed the suit for wrongful gain and that he never received any legal notice from the plaintiff.

18.Even according to the testimonies of either side, the defendant received an amount of Rs.1,50,000/- by way of cheque from the plaintiff and it was evident from the entry of pass book which was marked as Ex.A1.

That a part, the defendant categorically admitted that he withdrew the amount connected to the cheque issued by the plaintiff. The plaintiff by relying upon the testimonies of Pws 1 and 2 coupled with Exs.A1 to A3 initially established that the defendant borrowed an amount of

Rs.1,50,000/- as a hand loan for his family and business necessities and the defendant voluntarily agreed to repay the amount with subsequent interest at the rate of 24% per annum, but later failed to clear the debt inspite of demands either orally or through Ex.A2 legal notice duly sent to the address of the defendant vide Ex.A3. As, the plaintiff established his case by way of cogent and convincing evidence, he discharged his initial burden regarding the transaction. Now, the burden shifts to the defendant to rebut the case of the plaintiff. In this connection, the defendant has to place rebuttal evidence to establish that the issue of cheque for Rs.1,50,000/- is not towards a hand loan as alleged by the plaintiff, but it is only for reimbursement of the expenditure which was incurred by the defendant on behalf of the plaintiff. No doubt, there are earlier transactions between the plaintiff and defendant as the defendant used to attend the works of the plaintiff. However, the admission of earlier transactions does not mean that this court can draw a presumption that the plaintiff issued a cheque for

O.S.No.207/2015 9 (Fair) DATED: 21-03-2017

Rs.1,50,000/- towards reimbursement of the expenditure incurred by the defendant on behalf of the plaintiff, when the plaintiff established that the defendant borrowed the said amount as a hand loan. The defendant except denying the plea of the plaintiff that he took the amount as a hand loan, he did not place any material before the court the purpose for which the plaintiff sent the amount and in what manner he incurred the expenditure of Rs.1,50,000/- on behalf of the plaintiff.

19.Moreover, the plaintiff issued Ex.A2 legal notice to the defendant demanding him to discharge the amounts due to him. In this connection, the defendant simply said that he is unaware of the legal notice as the plaintiff intentionally sent the same to insufficient address. At this stage, it is pertinent to mention that the address mentioned in the

Ex.A2 legal notice as well as Ex.A3 postal receipt is similar to the address mentioned by the defendant in his chief affidavit. In such a case, a presumption can be drawn that when Ex.A2 was sent to correct address of the defendant, it is deemed to have been served unless and until contrary is proved, but no such rebuttal evidence is placed by the defendant.

20.Considering the above, the defendant except denying the transaction between himself and plaintiff not as a hand loan and it is on account of earlier transaction, he did not place any material evidence

before the court to rebut the case of the plaintiff. On the other hand, the

plaintiff established on the strength of oral and documentary evidence that the defendant borrowed an amount of Rs.1,50,000/- from him as a hand loan and agreed to repay with interest at the rate of 24% per annum, but failed to discharge the same. In such a scenario, this court is left with no alternative except to arrive at a conclusion that the plaintiff established the suit claim against the defendant. Accordingly Issue No.1 is answered in favour of the plaintiff and against the defendant.

O.S.No.207/2015 10 (Fair) DATED: 21-03-2017

ISSUE No.2:-

21.In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant for a sum of Rs.2,33,100/- (Rupees

Two Lakh Thirty Three Thousand and One Hundred only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of Decree and thereafter at the rate of 6% per annum from the date of Decree till the date of realization on the principal amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only).

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

in open court, this the 21 st day of March, 2017.

Principal Junior Civil Judge,

Anakapalle

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintif For Defendant

P.W.1 : Boddu Srimannarayana Murthy. D.W.1 :K.J.Srinivas. P.W.2 : Voleti Venkata Subramanyam.

Exhibits Marked

For Plaintif

Ex.A1/11.07.2013 : Defendant withdrew an amount of Rs.1,50,000/- through cheque bearing No.609639, I.O.B, Anakapalle branch from the plaintiff's S.B.Account.

Ex.A2/17.10.2015 : Office copy of Registered Lawyer's notice. Ex.A3/17.10.2015 : Postal receipt.

For Defendant NIL.

Principal Junior Civil Judge,

Anakapalle

O.S.No.85/2016 1 (Fair) DATED: 30-03-2017

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE AT

ANAKAPALLE

Present : Sri N.SRI RAMA KRISHNA,

Principal Junior Civil Judge,

Anakapalle

THURSDAY, THE 30 th DAY OF MARCH, 2017

ORIGINAL SUIT NO.85/2016

Between:

Danda Satyanarayana S/o late Apparao, Hindu, aged 47 years, Business, residing in D.No.6/12, Velpula Veedhi, Anakapalle, Visakhapatnam District.

… Plaintiff ..

And:

Rotla Adinarayana @ Srinu S/o late Venkataswamy, Hindu, aged about 38 years, Motor works, residing in D.No.14-80, Gundala Street, Anakapalle, Visakhapatnam District.

... Defendant ..

This suit is coming before me on 27.03.2017 for final hearing in the presence of Smt K.Kusuma, Learned Counsel for Plaintiff and of Sri

K.Chandrasekhar, Learned counsel for Defendant and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a suit to recover a sum of Rs.1,55,333/- (Rupees One

Lakh Fifty Five Thousand Three Hundred and Thirty Three Only), being the

principal and interest due under a promissory note executed by the

defendant in favour of the plaintiff for Rs.1,00,000/- (Rupees One Lakh only) with subsequent interest at the rate of 24% per annum and for costs of the suit.

02.The averments of the plaint, in brief, are that the defendant borrowed an amount of Rs.1,00,000/- from the plaintiff for his family

O.S.No.85/2016 2 (Fair) DATED: 30-03-2017

expenses and to discharge sundry debts agreeing to repay the principal amount with interest at the rate of 24% per annum either to the plaintiff or his order on demand at Anakapalle on 15.01.2014 and evidencing the said transaction, the defendant executed a promissory note on the even date in favour of the plaintiff. It is further averred that the defendant has not paid any amount either towards principal or interest under the above said promissory note inspite of repeated demands and requests and postponing the event of repayment on one pretext or the other. Thereupon, the plaintiff got issued a lawyer notice dated 04.03.2016 to the defendant demanding him to repay the due amount under the above said promissory note and the said legal notice was received by the defendant, but he neither sent the reply notice nor paid the amount. The defendant is not an agriculturist and he is not entitled for any debt relief laws. Hence, the suit.

03.The defendant filed a written statement and denied the allegations of the plaintiff. The contention of the defendant is that when he was in dire need of money, he borrowed an amount of Rs.50,000/- from the plaintiff in the year 2008 and later he paid the entire amount in the year 2011. Subsequently, in the year 2012, differences cropped between himself and plaintiff and due to which, the plaintiff demanded him to pay an amount of Rs.10,000/- towards interest due or else he will fabricate the empty promissory note which was given at the time of borrowing the amount of Rs.50,000/- in the year 2008. The defendant placed the matter

before the elders, who chastised the plaintiff and stated to the plaintiff to

return the blank promissory note. It is further contended that after receipt of legal notice, the defendant approached the elders and the elders advised the defendant to lodge a report to the police and he did the same, but the plaintiff managed the police and no action was taken. It is further averred that the promissory note is a fabricated document and no

O.S.No.85/2016 3 (Fair) DATED: 30-03-2017

consideration was passed therein. Hence, the defendant need not pay any amount to the plaintiff and prays to dismiss the suit.

04.Basing on the above pleadings, the following issues have been framed for trial.

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

02. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for?

03. To what relief?

05.During course of trial, on behalf of the plaintiff, the plaintiff himself examined as PW1 and one of his supporting witness has been examined as PW2 and got marked Exs.A1 to A3. On behalf of the defendant, the defendant himself examined as DW1 and one of his supporting witness has been examined as DW2 and no documents were marked.

06.Heard both sides.

ISSUE No.1:

07.In a suit for recovery of a amount on the strength of promissory note, the burden lies on the plaintiff to establish his case by placing suitable evidence. The plaintiff, to discharge the burden lies upon him, relied upon the testimonies of Pws 1 and 2 and exhibited Exs.A1 to A3.

08.PW1 testified that the defendant borrowed an amount of

Rs.1,00,000/- from him for his family expenses and to discharge his sundry debts, agreeing to repay the principal amount with interest at the rate of 24% per annum either to PW1 or his order on demand at Anakapalle on 15.01.2014 and evidencing the said transaction, the defendant executed

Ex.A1 in favour of the plaintiff. PW2 is the scribe of Ex.A1. N.Srinivasarao and T.Chinna are the attestors of Ex.A1 and before whom the consideration was passed. PW1 further added that the defendant did not repay any

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amount either towards principal or interest due under Ex.A1 inspite of demands made either orally or through Ex.A2 Legal notice. Ex.A3 is the postal acknowledgement.

09.During cross examination of PW1 by the learned counsel for defendant, he stated that the defendant took the scribe to execute Ex.A1.

PW1 denied that the defendant borrowed an amount of Rs.50,000/- from him in the year 2008 and by that time he obtained empty promissory note and inspite of discharge of the said amount in the year 2011, he did not return the same and got fabricated Ex.A1 with the help of attestors and

PW2.

10.PW2 being the scribe to Ex.A1 deposed on the similar lines of

PW1 regarding passing of consideration and execution of Ex.A1 by the defendant in their presence after receipt of consideration. PW2 further added that N.Srinivasarao and T.Chinna are the attestors of Ex.A1. Coming to cross examination, PW2 admitted that the defendant took him to the house of plaintiff to scribe the Ex.A1 on 15.01.2014. PW2 denied that no transaction took place under Ex.A1 in his presence and he did not scribe

Ex.A1.

11.On the other hand, to support the case of the defendant, the defendant himself and one of his supporting witness said to be elder of the meeting have been examined as Dws 1 and 2. According to DW1, he borrowed an amount of Rs.50,000/- from PW1 in the year 2008 and later he discharged the same in the year 2011. At the time of borrowing amount

PW1 obtained blank signed promissory note from him and demanded to pay Rs.10,000/- towards interest due and by then he placed the matter

before the elders, who chastised PW1 and stated to return the blank

promissory note. Subsequently, after receipt of Ex.A2, he again approached the elders who advised him to lodge a report to the police, but no action

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was taken by the police and advised him to approach the Civil Court. DW1 further stated that he never borrowed any amount on 15.01.2014 and the alleged Ex.A1 was obtained by PW1 in the year 2008 and no consideration was passed thereon. In cross examination of DW1, he admitted that PW1 demanded him to return the due amount through elders and that he did not mention the names of elders and placing the matter before elders in his written statement. DW1 further admitted that he did not file the complaint given to the police nor receipt of the complaint issued by the police.

12.DW2 stated to be the elder of meeting, supported the evidence of DW1. According to him, DW1 discharged the debt in his presence and in the presence of M.Govind regarding the transaction of 2008. Again after receipt of Ex.A2, DW1 approached him and informed about the demand made by the PW1, he advised DW1 to lodge a report to the police. Coming to cross examination, DW2 admitted that he is not a witness to the transaction that took place in the year 2008 and DW1 did not discharge the debt in the year 2011 in his presence. DW1 gave complaint to the police against PW1 as he did not return the promissory note.

13. On perusal of the entire pleadings, testimonies of the witnesses and documents relied upon, there is no dispute regarding the fact that the PW1 and DW1 were known to each other and there are no disputes between them. Further, DW1 admitted the execution of Ex.A1, but it is stated to be connected to the transaction of 2008 and not to the transaction as alleged by the PW1. DW1 further admitted the receipt of

Ex.A2 legal notice sent by the PW1.

14.The plaintiff by relying upon the testimonies of Pws 1 and 2 coupled with Exs.A1 to A3, initially established that the defendant borrowed an amount of Rs.1,00,000/- from him on 15.01.2014 for his family expenses and to discharge sundry debts agreeing to repay the said amount together

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with subsequent interest at the rate of 24% per annum and executed

Ex.A1, but later failed to discharge the same inspite of oral as well as demands through Ex.A2.

15.On the other hand, the defendant admitted the execution of

Ex.A1, and he contended that it does not belong to the transaction which took place on 15.01.2014 as alleged by the plaintiff, but it pertains to different transaction which took place in the year 2008 and subsequently, he discharged the debt in the year 2011. As further evident from the record, DW1 admitted the execution of Ex.A1 in favour of the plaintiff. If it is so, a presumption can be drawn in favour of the plaintiff that Ex.A1 was properly executed on receipt of consideration. But, such a presumption can be rebutted by the defendant by placing rebuttal evidence. According to the defendant, the plaintiff obtained empty signed promissory note at the time of borrowing Rs.50,000/- in the year 2008 and he did not return the same even after discharge of the debt in the year 2011. The defendant to prove the fact of discharge of the earlier transaction of 2008, he examined

DW2. DW2 in his chief examination stated that the defendant discharged the debt in his presence and in the presence of one M.Govind in the year 2011. Whereas coming to cross examination, DW2 stated that the defendant did not discharge the debt in the year 2011 in his presence.

Moreover, it is not at all the pleading of the defendant that he discharged the debt pertaining to earlier transaction in the presence of DW2 and another elder namely M.Govind.

16.DW1 further claimed that he executed empty signed promissory note in favour of the plaintiff at the time of transaction in the year 2008, but the plaintiff did not return the same even after discharge the debt in the year 2011. In such a case, it is for the defendant to establish the said fact by placing convincing material before the court.

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Further, the defendant except denying present transaction, simply stated that Ex.A1 pertains to earlier transaction. The material available on record, further reveals that the PW1 issued Ex.A2 legal notice to the defendant demanding him to discharge the debt. On receipt of the Ex.A2, the defendant did not issue any reply notice denying the transaction under

Ex.A1. For this, the defendant gave an explanation that he approached the elders after receipt of Ex.A2 who advised him to give police report and accordingly, he approached the police and gave report. In this context, evidently, the defendant neither filed the complaint given to the police nor the receipt issued by the police in token of lodging complaint to the police.

17.From the above discussion, it can be concluded that the defendant except denying the transaction under Ex.A1, he could not convince the court with cogent evidence that Ex.A1 relates to earlier transaction, but not to the transaction that took place on 15.01.2014 as alleged by the plaintiff. On the other hand, the plaintiff by placing oral and documentary evidence established the transaction between the plaintiff and defendant under Ex.A1 and later demanded the defendant to discharge the debt inspite of demands either orally or through Ex.A2. In such a situation, this court is left with no alternative except to opine that the suit promissory note is true, valid and binding on the defendant.

Accordingly Issue No.1 is answered infavour of the plaintiff and against the defendant.

ISSUE No.2:-

18.In view of findings on Issue No.1, this court is of the opinion that the plaintiff is entitled to recover the suit amount from the defendant as prayed for. Issue No.2 is answered accordingly.

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ISSUE No.3:-

19.In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant for a sum of Rs.1,55,333/- (Rupees

One Lakh Fifty Five Thousand Three Hundred and Thirty Three

Only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of Decree and thereafter at the rate of 6% per annum from the date of Decree till the date of realization on the

principal amount of Rs.1,00,000/- (Rupees One Lakh only) .

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

in open court, this the 30 th day of March, 2017.

Principal Junior Civil Judge,

Anakapalle

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintif For Defendant

P.W.1 : Danda Satyanarayana. D.W.1 : Rotta Adinarayana. P.W.2 : Pilla Hari Kiran Kumar.D.W.2 : Peela Appalanaidu.

Exhibits Marked

For Plaintif

Ex.A1/15.01.2014 : Promissory note. Ex.A2/04.03.2016 : Office copy of Registered Lawyer notice. Ex.A3/ - : Postal receipt.

For Defendant : NIL.

Principal Junior Civil Judge,

Anakapalle

O.S.No.145/2016 1 (Fair) DATED: 24-03-2017

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT

ANAKAPALLE

Present : Sri N.SRI RAMA KRISHNA,

Principal Junior Civil Judge,

Anakapalle

FRIDAY, THE 24 th DAY OF MARCH, 2017

ORIGINAL SUIT NO.145/2016

Between:

State Bank of India a body Corporate constituted under The State Bank of India Act, 1955 having it's Central Office at Mumbai and a branch among other places at Sabbavaram village and same Mandal, Visakhapatnam District, represented by it's Branch Manager G.V.S.Prakash Raju S/o G.Gopala Rao, aged 43 years.

... Plaintiff ..

And:

1. Rajendar Kumar Janga S/o Janardhana Rao, aged 62 years, residing in Reporter's colony, R.E.C Office back side, Sabbavaram Village and same Mandal, Visakhapatnam District.

2. Jami Devatha Chakravarthy S/o J.V.Ramana, aged about 55 years, Secondary Grade Teacher, M.P.U.P.School, Sabbavaram Village and same Mandal, Visakhapatnam District.

... Defendants ..

This suit is coming before me on 22-03-2017 for final hearing in the presence of Smt A.Bhanumathi and Sri V.Viswanadham, Learned Counsel for plaintiff and of Sri B.V.V.S.N.Murthy, Learned Counsel for Defendants and upon hearing both sides and 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 to recover a sum of Rs.1,54,742/- (Rupees One Lakh Fifty

Four Thousand Seven Hundred and Forty Two Only), basing on the

Statement of Loan account along with subsequent interest thereon at 15.25% per annum with monthly rests from the date of the suit till the date of realization and for costs of the suit.

02.The averments of the plaint, in brief, are that the 1st defendant requested the plaintiff for sanction of personal loan by submitting an

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application dated 22.11.2007 and accordingly, the plaintiff sanctioned

Rs.3.35 lakh to the 1st defendant. The 2nd defendant stood as guarantor for the said loan and accepted the terms and conditions of sanction by acknowledging Arrangement Letter dated 22.11.2007 issued by the plaintiff. The 1st defendant agreed to repay the loan amount with subsequent interest at 12.75% per annum at monthly rests in equated monthly installments of of Rs.8,910/- per month. The 1st defendant executed personal loan agreement dated 22.11.2007 for Rs.3.35 lakh in favour of the plaintiff and the 2nd defendant executed deed of guarantee on the same day for the loan amount.

03.It is further averred that the 1st defendant subsequently after availing the loan, did not repay the loan amount as per terms and conditions of sanction and committed default. The 1st defendant executed revival letter dated 08.11.2013 acknowledging the liability to the plaintiff.

The loan account became a Non-Performing Asset as on 30.06.2014 as per

Reserve Bank of India guidelines. In spite of repeated demands made by the plaintiff, the 1st defendant did not regularize the loan amount nor paid the due amount and thereby, the plaintiff got issued lawyer's notice dated 15.05.2016 to the defendants demanding for the repayment of entire dues to the Bank, but in vain. It if further averred that an amount of

Rs.1,14,283.16 Ps. was out standing as on 30.06.2014 as per Statement of

Account. Hence, the suit for recovery of the amount.

04.The 1st defendant filed a written statement and denied the allegations of the plaint. The contention of the 1st defendant is that at the time of sanction of loan, the plaintiff obtained his signatures on printed blank papers and inspite of payment of the installments without any default, the Bank did not issue any receipts nor showed the payments in the account and intentionally filed the suit to extract money. It is further contended that the plaintiff never demanded this defendant to pay the due

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amount and even he did not execute any recall letter in favour of the Bank.

The plaintiff did not issue any notice to this defendant demanding payment of balance amount nor he received any notice. Hence he is not liable to pay the amount and prays to dismiss the suit.

05.The 2nd defendant filed a written statement and opposed the claim of the plaintiff on the ground that he never approached the plaintiff and never executed any documents in favour of the plaintiff and he never stood as guarantor to the 1st defendant for the repayment of loan amount.

It is further contended that the plaintiff and 1st defendant might have colluded together and brought into existence the alleged documents for wrongful gain and that he is not liable to pay any amount to the Bank and prays to dismiss the suit.

06.Basing on the above pleadings, the following issues have been framed for trial:-

01. Whether the plaintiff bank is entitled to recover the suit amount together with subsequent interest and costs as prayed for?

02. To what relief?

07.During course of trial, on behalf of the plaintiff bank,

G.V.S.Prakash Raju, Branch Manager has been examined as P.W.1 and got marked Exs.A-1 to A-8. On behalf of the defendants, no one was examined and no documents were marked.

08.Heard both sides.

ISSUE No.1:-

09.The plaintiff bank filed the suit against the defendants for recovery of an amount of Rs.1,54,742/- together with subsequent interest and costs. So, the initial burden lies upon the plaintiff bank to establish the transaction between the defendants and the bank. In proof of the claim of the plaintiff bank, G.V.S.Prakash Raju, Branch Manager has been examined as P.W.1 and also relied upon Exs.A1 to A8.

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10.P.W.1 testified that the plaintiff sanctioned a loan of

Rs.3,35,000/- to the 1st defendant upon submission of Ex.A1. The 2nd defendant stood as guarantor for the said loan amount and accepted the terms and conditions and executed Ex.A2. The 1st defendant agreed to repay the loan amount with interest at 12.75% per annum at monthly rests in a equated monthly installments of Rs.8,910/- per month. The 1st defendant executed Ex.A3 in favour of the bank for the loan amount. The 2nd defendant executed Ex.A4 in favour of the plaintiff bank on the same day for the loan amount. P.W.1 further testified that the 1st defendant committed default in payment of installments as per terms and conditions, but executed Ex.A5 acknowledging his liability. Later, the loan account of the 1st defendant became Non-Performing Asset. The 1st defendant did not regularize the loan account nor paid the due amount to the bank and thereby the plaintiff bank got issued Ex.A6-Legal notice to the defendants demanding them to repay the due amount to the bank, but in vain. The defendants due to the plaintiff bank an amount of Rs.1,14,283.16Ps. as on 30.06.2014 as per Ex.A7. P.W.1 further added that Rs.1,54,742/- is due to the plaintiff in the above said term loan account as per Ex.A8.

11.P.W.1 was cross examined at length by counsel for defendants.

During cross examination, P.W.1 admitted that neither postal receipt nor postal acknowledgments were filed into the Court in proof of service of

Ex.A6 on the defendants. P.W.1 denied that as the 2nd defendant did not execute revival letter, he is not liable to pay any amount to the plaintiff.

12.On the other hand, the contention of the 1st defendant is that at the time of sanction of loan amount, the plaintiff bank obtained the signatures on the printed blank papers and even after discharge of the loan installments, the plaintiff bank did not issue any receipts nor showed the amount in the statement of account and intentionally filed the suit for wrongful gain and that the plaintiff bank never demanded this defendant to

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repay the due amount and he never executed any revival letter. The 2nd defendant contended that he never executed any documents in favour of the plaintiff as the surety to the 1st defendant and the plaintiff bank might have colluded with the 1st defendant and got prepared the alleged documents for wrongful gain and that he is not liable to pay any amount.

13.On perusal of the pleadings and material available on record, the plaintiff bank by examining its Branch Manager and relying upon Exs.A1 to A8 initially established its suit claim against the defendants. As the plaintiff bank discharged the initial burden lies upon it, then the burden shifts to the defendants to prove their contest as set out in the written statement. Originally the contest of the 1st defendant is that after obtaining the loan from the plaintiff bank, he paid installments to the bank, but the bank did not issue receipts nor showed the installments in the statement of account for wrongful gain and the plaintiff never demanded him to repay the amount. The 2nd defendant contended that the 1st defendant and the bank might have colluded together and fabricated the documents for wrongful gain.

14.The material on record further reveals that the 1st defendant admitted the loan transaction between themselves and plaintiff bank.

When the 1st defendant being the principal borrower admitted the loan transaction, the burden is upon him that he paid all the installments to plaintiff bank but the same was not showed in the statement of account.

Except, mere bare contention in the written statement, the 1st defendant did not place any material before the court that he paid all the installments to the bank. That a part, except taking the contentions in the written statement, the 1st defendant even did not appear before the court and place any evidence by entering into witnesses box in support of his allegations. So also, the 2nd defendant mere taking a plea in the written

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statement that the 1st defendant might have colluded with the bank and got fabricated the alleged documents, he did not appear before the court to prove the allegations as taken in the written statement. Moreover, neither 1st defendant nor 2nd defendant give any reply notice to Ex.A6 issued by the plaintiff bank.

15.In the absence of any cogent and convincing evidence before the court in support of their contentions, the mere allegations in the written statement have no evidentiary value in the eye of Law, when the plaintiff established its case by placing cogent and convincing evidence regarding the suit claim against defendants. In view of the above facts and circumstances, this court is left with no alternative except to opine that the plaintiff bank established its suit claim against both the defendants.

Accordingly, Issue No.1 is answered in favour of the plaintiff and against the defendants.

ISSUE No.2:-

16.In the result, the suit is decreed with costs in favour of the plaintiff and against both the defendants for a sum of Rs.1,54,742/-

(Rupees One Lakh Fifty Four Thousand Seven Hundred and Forty

Two Only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the adjudged amount of Rs.1,54,742/- (Rupees One Lakh Fifty Four

Thousand Seven Hundred and Forty Two Only).

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

by me in open court, this the 24 th day of March, 2017.

Principal Junior Civil Judge,

Anakapalle

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APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintif For Defendants

P.W.1 : G.V.S.Prakash Raju. None

Exhibits Marked

For Plaintif

Ex.A.1/22-11-2007: Loan Application.

Ex.A.2/22-11-2007: Arrangement Letter. Ex.A.3/22-11-2007: Personal Loan Agreement. Ex.A.4/22-11-2007: Guarantee Agreement. Ex.A.5/08-11-2013: Revival Letter. Ex.A.6/15-05-2016: Regd. Lawyer's Notice. Ex.A.7/ - : Extract of Statement of Cash Credit account bearing No.30280584252. Ex.A.8/ - : Memorandum showing Calculation of suit amount.

For Defendants : NIL.

Principal Junior Civil Judge,

Anakapalle

IN THE COURT OF THE V METROPOLITAN MAGISTRATE: ANAKAPALLE

Present: - Sri N.Sriramakrishna.,

V Metropolitan Magistrate, Anakapalle

Thursday, this the 28 th day of MAY, 2015

Calendar Case No.682/2010

Between:- State represented by the Sub Inspector of Police, Anakapalle Town P.S.

... Complainant

And

Kolli Chelli Babu @ Chellam Naidu, S/o Mutyala Naidu, 26 Yrs, K.Velama caste, Tractor Driver, Gogada Kothapalli Village, Cheedikada Mandal.

... Accused

This case is coming on 27-5-2015 for final hearing before me in the presence of Learned Assistant Public Prosecutor for the prosecution and of

Sri. K.P.Naidu, Learned Counsel for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

The case of the prosecution is that on 5-10-2010, some unknown offenders committed theft of Hero Honda Splender Motor Cycle bearing No.

AP 32 2553 worth of Rs.45,000/- belongs to P.W.1, when PW.1 parked the said motor cycle in front of a cloth shop near four road junction. Basing on the report of PW.1, P.W.3 registered a case in Cr.No.231/2010 U/Sec.379 PC of Anakapalle Town Police Station on 11-10-2010 at 03.00 p.m., as P.W.6 was engaged in other duty. During the course of investigation, P.W.3 visited the scene of offence, examined the witnesses and recorded their detailed statements. Later, the accused was arrested by P.W.7 on 13-10-2010 in

Cr.NO. 145/2010 U/Sec.379 IPC of Sabbavaram Police Station and during the course of interrogation, the accused confessed to have committed the thefts of motor cycles connected to various police stations including the subject matter of the case. P.W.7 seized the motor cycle from the possession of accused in the presence of P.W.4 and P.W.5 under a cover of mediators report. P.W.6 took up further investigation in this case, verified the investigation of P.W.3 and found to be on correct lines, produced the accused

before the court on execution of P.T.Warrant on 16-11-2010. After

completion of investigation, he laid charge sheet against the accused

U/Sec.379 IPC.

2.This Court took cognizance for the offence punishable under secs.411 IPC. Accused made his appearance upon service of summons.

Copies of documents were furnished to him under sec.207 Cr.P.C. He was examined under sec.239Cr.P.C., and charge has been framed for the offence punishable under sec.411 IPC, which was read over and explained to him in his mother tongue to which he pleaded not guilty and claimed to be tried.

3. In order to prove the guilt of the accused, Prosecution examined

P.Ws.1 to 7 and got marked Ex.P.1. to Ex.P.9 and Mo.1. The accused was examined under sec.313 Cr.P.C., with reference to the incriminating material available on case record, but he denied the same. On the side of defence, none were examined and nothing was marked.

4.Heard both sides.

5.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused U/sec. 411 IPC beyond all reasonable doubt?

POINT 6. : In order to prove the guilt of accused, the prosecution relied upon the testimonies of P.W.1 to P.W.7. P.W.1 is the complainant and victim.

P.W.2 is the friend of P.W.1 and hearsay witness. P.W.4 and P.W.5 are the panches for mediators report. P.W.7 is the then Sub Inspector of Police,

Sabbavaram, who seized MO.1/motor cycle from the possession of accused.

P.W.3 and P.W.6 are the Investigating Officers.

7.P.W.1 testified that on 5-10-2010, he came to Anakapalle by

MO.1/motor cycle and parked the same nearby four road junction, went to the shop to purchase cloths. On his return, he found missing of MO.1/motor cycle, he searched for the same for two days, but invain. On 11-10-2010, he gave Ex.P1/report to the police. Later, police informed about the seizure of

MO.1 and he took the same for interim custody. More or less, similar is the testimony of P.W.2.

8.P.W.4 and P.W.5 are the panches for mediators report. They deposed in one voice that at the request of Sabbavaram police they put

Ex.P4 & Ex.P7/signatures on mediators report and that they do not know the contents therein.

9.At this stage, the learned Assistant Public Prosecutor upon obtaining permission of the court, suggested to P.W.4 and P.W.5 that on 13-10-2010 at 4.30 p.m., police arrested the accused, recovered MO.1/motor cycle from his possession under a cover of mediators report, but they denied the same.

10.P.W.3, P.W.6, P.W.7 are the Investigating Officers. PW.3 testified that on 11-10-2010, he received Ex.P1/report from P.W.1, registered a case in Cr.No.237/2010 U/Sec.379 IPC, proceeded to the scene of offence, recorded the statements of witnesses, drafted rough sketch and hand over the case record to P.W.6. P.W.6 testified that on 27-10-2010, he took up investigation in this case, he received information from P.W.7 on 13-10-2010 regarding arrest of accused and seizure of MO.1/motor cycle from his possession, received MO.1/motor cycle from P.W.7, produced the accused

before the court on execution of P.T. Warrant and laid charge sheet. P.W.7

testified that on 13-10-2010, he secured P.W.4 and P.W.5 and proceeded towards NTR junction of Sabbavaram, conducted vehicle checking, arrested the accused in the suspicion circumstances, seized MO.1/motor cycle and other vehicles from the possession of accused in the presence of P.W.4 and

P.W.5 under a cover of Ex.P8 and Ex.P9/mediators reports, produced the accused before the court, hand over the MO.1/motor cycle to P.W.6.

11.As seen from the record, on 5-10-2010 P.W.1 parked his

MO.1/motor cycle near four road junction of Anakapalle and went to purchase cloths. After return, he found missing of MO.1/motor cycle, he searched for the same with the help of P.W.2, but invain. After that, he submitted Ex.P1/report to P.W.3, who registered a case in Cr.No.231/2010

U/Sec.379 IPC and issued Ex.P2/FIR, examined the witnesses and drafted

Ex.P3/rough sketch and hand over the case record to P.W.6 for further investigation. Mean time, on 27-10-2010 P.W.6 received information about seizure of MO.1/motor cycle from the possession of accused through P.W.7, received MO.1/motor cycle, produced the accused before the court on execution of P.T.warrant and laid charge sheet.

12.Thus, it is evident from the record that P.W.7 arrested the accused near NTR junction of Sabbavaram and seized MO.1/motor cycle and other vehicles under a cover of Ex.P8 and Ex.P9/Mediators reports in the presence of P.W.4 and P.W.5. On the same fact, P.W.4 and P.W.5 deposed that at the request of police, they went to police station, police obtained

Ex.P4 to Ex.P7/signatures on Ex.P8 and Ex.P9 and that they do not know the contents there in and that nothing was seized in their presence. When, P.W.4 and P.W.5/panches for Ex.P8 and Ex.P9/Mediators reports did not support the case of prosecution, no evidenciary value could be attached to Ex.P8 and Ex.P9/ Mediators reports. Except, the self-serving oral testimony of

P.W.7, there is no material on record to connect the accused with the guilt.

Hence, this court is of the opinion that it is highly unsafe to rely upon the testimonies of P.W.7 to connect the accused with the guilt in the absence of corroboration from independent panches for Ex.P8 and Ex.P9/Mediators reports. Consequently, this court is left with no alternative except to opine that the prosecution miserably failed to bring home the guilt of accused for the offence charged with, beyond all reasonable doubt. Point is answered accordingly.

13.In the result, the accused is not found guilty for an offence under section 411 IPC, as such he is acquitted of the same under sec.248(I) Cr.P.C.

MO.1/Hero Honda Spledor Motor Cycle bearing No.AP 32 – 2553 was given to

P.W.1/Vantaku Govinda rao, S/o Demudu for interim custody shall become absolute after appeal time. The Superintendent, Central Jail, Visakhapatnam is directed to release the accused forthwith if he is not required in any other case.

(Dictated to Personal Assistant and transcribed by her, corrected and pronounced by me in the open Court, this the 28thday of MAY, 2015)

V Metropolitan Magistrate Anakapalle

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence:

P.W.1: Vantaku Govinda Rao - N I L - P.W.2: Rongali Venkata Ramana P.W.3: M.V.Ramana P.W.4: Sabbavarapu Demudu P.W.5: Karri Appalanaidu P.W.6: V.Krishna Rao

EXHIBITS MARKED

For Prosecution : For Defence: Ex.P.1: Report-NIL- Ex.P2: First Information Report Ex.P3: Rough sketch Ex.P4: Signature of Mediators report Ex.P.5: Signature of Mediators report of P.W.4 Ex.P.6: Signature of Mediators report of P.W.5 Ex.P.7: Signature of Mediators report of P.W.5 Ex.P8: Confession statement Ex.P9: mediators report

MATERIAL OBJECTS MARKED

MO.1 : Hero Honda Splender Motor Cycle

V Metropolitan Magistrate Anakapalle

CALANDAR EXTRACT

IN THE COURT OF THE V METROPOLITAN MAGISTRATE, ANAKAPALLE

Calendar Case No.682/2010 Name of the Police Station: Anakapalle Town Police Station

Crime No.: 231/2010

Offence U/s.: U/sec.379 IPC

Name of the accused :

Kolli Chelli Babu @ Chellam Naidu, S/o Mutyala Naidu, 26 Yrs, K.Velama caste, Tractor Driver, Gogada Kothapalli Village, Cheedikada Mandal.

Date of :

a) Occurrence: 5-10-2010

b) Complaint: 11-10-2010

c) Apprehension/Appearance: 13-10-2010

d) Released on bail: --

e) Commencement of trial: 09-2-2011

f) Close of trial: 27-5-2015

g) Sentence or Order: 28-5-2015

h) Finding of Court: Found not Guilty

Explanation for delay: : The delay is due to non production of witnesses by the prosecution.

RESULT:

In the result, the accused is not found guilty for an offence under section 411 IPC, as such he is acquitted of the same under sec.248(I) Cr.P.C.

MO.1/Hero Honda Spledor Motor Cycle bearing No.AP 32 – 2553 was given to

P.W.1/Vantaku Govinda Rao, S/o Demudu for interim custody shall become absolute after appeal time. The Superintendent, Central Jail, Visakhapatnam is directed to release the accused forthwith if he is not required in any other case.

V Metropolitan Magistrate, Anakapalle Copy Submitted to:

Hon'ble Chief Judicial Magistrate –cum-

Principal Senior Civil Judge,

Visakhapatnam.

IN THE COURT OF THE V METROPOLITAN MAGISTRATE: ANAKAPALLE

Present: - Sri N.Sriramakrishna

V Metropolitan Magistrate, Anakapalle

Thursday, the 28 th day of MAY, 2015

Calendar Case No.39/2014

Between:-

State represented by the Proh. & Excise Sub Inspector, Anakapalle

... Complainant

And

Madaka Ramana, S/o late Yerra Musali, age 45 Years, C/o Kapu, r/o

Madakalavari Pakalu, Kasimkota Mandal

... Accused

This case is coming on 27-5-2015 for final hearing before me in the presence of Learned Assistant Public Prosecutor for the prosecution and of

Sri.S.S.V.Bhaskar, Learned Counsel for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

The case of the prosecution is that on 2-9-2012 at about 17.30 hrs.,

P.W.1/J.Jardhana Rao, Proh. & Excise Sub Inspector along with other staff were conducting patrolling at Madakalavaripakalu village limits at a distance of ½ furlong, they found one person was having one black plastic can on his right hand and coming. On suspicion, P.W.1/ J.Jardhana Rao, Proh. & Excise

Sub Inspector with the help of other staff detained the said person and on enquiry he replied that he is having 10 liters of ID liquor. After that, P.W.1 deputed P.W.2/N.Rambabu, Proh. & Excise Constable to secure mediators, but in vain. On verification, he found about 10 liters of ID liquor. On enquiry, he revealed his identity particulars and further stated that he purchased the said ID liquor from an unknown person for sale on profit. Then P.W.1/

J.Jardhana Rao, Proh. & Excise Sub Inspector, seized the contraband, drew samples, sealed and affixed identification slips duly singed by them, arrested the accused after informing the grounds of arrest under a cover of occurrence report, returned to the Station. After that P.W.1/ J.Jardhana Rao,

Proh. & Excise Sub Inspector, registered a case in Cr.No.71/2012-13 U/sec.7 (A) r/w 8 (e) of APP Act, produced the accused before the court for judicial remand. During the course of investigation, P.W.1/ J.Jardhana Rao, Proh. &

Excise Sub Inspector sent the samples to the Chemical Examiner for analysis.

After receipt of analysis report and completion of investigation, P.W.1/

J.Jardhana Rao, Proh. & Excise Sub Inspector laid charge sheet against the accused.

2.This Court took cognizance for the offence punishable U/sec.7 (A) r/w 8 (e) of Andhra Pradesh Prohibition Act, 1995. Accused made his presence upon service of summons. Copies of documents were furnished to him U/sec.207 Cr.PC. He was examined U/sec.239 Cr.P.C and charges have been framed for the offence punishable U/sec.7 (A) r/w 8 (e) of Andhra

Pradesh Prohibition Act, 1995 which were read over and explained to him in his mother tongue to which he pleaded not guilty and claimed to be tried.

3.In order to prove the guilt of the accused, Prosecution examined

P.W.1 & P.W.2/ J.Janardhana Rao and N.Rambabu and got marked Exs.P1 to

P4 and MO1. The accused was examined U/sec.313 Cr.PC with reference to incriminating material available on case record, but he denied the same. On the side of defence, none were examined and nothing was marked.

4.Heard both sides.

5.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused U/sec.7 (A) r/w 8 (e) of Andhra Pradesh Prohibition Act, 1995 beyond all reasonable doubt?

6. POINT:

In order to answer the point, there exists the testimonies of

P.W.1 & 2/ J.Janardhana Rao and N.Rambabu. PW.1 is the Prohibition &

Excise Sub Inspector, Anakapalle, P.W2 is the Prohibition & Excise

Constable, Anakapalle.

7.The testimony of P.W.1/ J.Janardhana Rao, Proh. & Excise Sub

Inspector is that on 2-9-2012 at about 05.30 A.M., he along with other staff conducting patrolling at Madakalavaripakalu village, they found one person having in possession of one black plastic can. On seeing the party, he tried to run away from the spot, but they surrounded and detained him and on interrogation, he disclosed his identity particulars and contents of the plastic can as ID liquor. After that P.W.1 deputed P.W.2 to secure mediators at

Madakalavaripakalu village, but in vain. Thereafter, he has verified the plastic can and observed 10 liters of ID liquor, seized the property, lifted the samples, affixed identification slips and arrested the accused under a cover of Ex.P1/occurrence report. MO1 is sample bottle. Thereafter, they brought the accused and seized property to the Prohibition & Excise Station,

Anakapalle and P.W.1 registered a case in Cr.No.71/2012-2013 U/sec.7 (A) r/w 8 (e) of APP Act. During the course of investigation, he reported the above seizure to the Deputy Commissioner of Proh. and Excise,

Visakhapatnam. The seized samples were sent to the Chemical examiner through letter of advise for the purpose of analysis. The chemical analyst opined that the sample is illicit distilled liquor and unfit for human consumption and injurious to health. He also obtained permission from

Dy.Commissioner, Proh. & Excise, Visakhapatnam, received property destruction proceedings, destroyed the property. After completion of investigation, P.W.1/ J.Jardhana Rao, Proh. & Excise Sub Inspector, laid charge sheet. Similar is the testimony of P.W.2, who is none other than

Prohibition & Excise Constable, Anakapalle who accompanied with P.W.1.

8.As seen from the record, P.W.1 and other staff arrested the accused at Madakalavaripakalu village and seized 10 liters of ID liquor under a cover of Ex.P1/Occurrence report as they could not secure any independent persons as mediators, though P.W.1 deputed P.W.2 to secure mediators in the nearby Village. But there is no whisper in the testimonies of either of the witnesses about the efforts made by them in securing the mediators and to whom they have contacted to be a mediators for the alleged seizure. In this regard, Ex.P1/Occurrence report does not contain the particulars of the persons who were refused to act as mediators for the alleged seizure.

Admittedly, the alleged scene of offence is nearby Madakalavaripakalu village as contended by learned defence counsel. If P.W.1 and P.W.2 had really tried to secure independent witnesses, they could have secured them.

9.Thus, it is evident from the record that except the self serving testimonies of Excise officials, none of the independent persons were cited as witness to the alleged seizure of ID liquor from the possession of accused.

Hence, this court is afraid to act upon the testimonies of P.Ws.1 & 2/Excise officials to connect the accused with the guilt in the absence of corroboration from the independent source. Consequently, this court is left with no alternative except to opine that the prosecution miserably failed to bring home the guilt of the accused for the offence charge with. Point is answered accordingly.

10. RESULT:

In the result, accused is not found guilty for an offence U/sec. 7 (A) r/w 8 (e) of APP Act, 1995 as such, he is acquitted of the same U/sec.

248(1) Cr.P.C. His bail bonds shall stand cancelled. MO1 shall be destroyed after appeal time.

(Typed to my dictation, corrected and pronounced by me in open Court, this the 28th day of May, 2015)

V Metropolitan Magistrate Anakapalle

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence:

P.W.1: J.Janardhana Rao - N I L - P.W.2: N.Rambabu

EXHIBITS MARKED

For Prosecution : For Defence: Ex.P.1: Occurrence report.- N I L - Ex.P.2: First Information Report Ex.P3: Chemical Analysis report. Ex.P4: Property destruction order.

MATERIAL OBJECTS MARKED

MO1 : Sample bottle.

V Metropolitan Magistrate, Anakapalle

CALANDAR EXTRACT

IN THE COURT OF THE V METROPOLITAN MAGISTRATE, ANAKAPALLE

Calendar Case No.39/2014

Name of the Police Station: Prohibition & Excise Station,

Anakapalle

Crime No.: 71/12-13

Offence U/sec: U/sec. 7 (A) r/w 8 (e) of APP Act, 1995

Name of the accused :

Madaka Ramana, S/o late Yerra Musali, age 45 Years, C/o Kapu, r/o

Madakalavari Pakalu, Kasimkota Mandal

Date of :

a) Occurrence: 2-9-2012

b) Complaint: 2-9-2012

c) Apprehension/Appearance: 2-9-2012

d) Released on bail: --

e) Commencement of trial: 22-5-2015

f) Close of trial: 27-5-2015

g) Sentence or Order: 28-5-2015

h) Finding of Court: Found not Guilty

Explanation for delay: : The delay is due to non production of witnesses by the prosecution.

RESULT:

In the result, Accused is not found guilty for an offence U/sec. 7 (A) r/w 8 (e) of APP Act, 1995, as such, he is acquitted of the same U/sec. 248(1)

Cr.P.C. His bail bonds shall stand cancelled. MO1 shall be destroyed after appeal time.

V Metropolitan Magistrate, Anakapalle Copy Submitted to:

Hon'ble Chief Judicial Magistrate –cum-

Principal Senior Civil Judge,

Visakhapatnam.