O. Venkata Nageswara Rao

1

CALENDAR & JUDGMENT

In the Court of the XIII Addl. Sessions Judge: Narasaraopet,

Present: Sri O.Venkata Nageswara Rao, XIII Addl. Sessions Judge, Narasaraopet,

Monday, this the 21st day of August, 2023,

Criminal Appeal No.166 of 2020

(C.C.No.154 of 2016 on the file of A J F C M., Cpt.,) 1Name & Description1. Sudarsanam Babu s/o Pullaiah, (died) of the appellant/ accused2. Sudarsanam Chinna Kotesu @ Koteswara Rao, s/o Nageswara Rao, 40 years,

3. Mekathoti Gnanaiah @ Peda Gnanaiah s/o Veeraiah, cultivation, 40 years, all are resident of Chandavaram village, Nadendla Mandal. 2Name and description of the The State SHO, Nadendla Police Station, respondent/ complainantRep. by Addl. Public Prosecutor, Chilakaluripet 3Sentence and order and the In the result, A5, A8 and A10 are found law under which the lower guilty and they were convicted under Sec.248(2) Cr.P.C and accused No.5 and 10 are court was imposed sentenced to undergo Simple Imprisonment for a period of THREE YEARS and to pay a fine of Rs.500/-, in default payment of fine amount, Simple Imprisonment for Five months for the offence punishable under Sec.326 of IPC and A8 sentenced to under go Simple Imprisonment for a period of TWO YEARS for the offence punishable under Sec.324 of IPC. The other accused A1 to A4, A6, A7, A9 and A11 were acquitted under Sec.248(1) Cr.P.C for the offences punishable under Secs.147, 148, 324, 326 r/w 149 of IPC.

4Whether modified, confirmedAllowed & Set aside or reversed. If modified, the In the result, Criminal Appeal is allowed and as details of modification.a sequel thereto, the conviction and sentence passed against appellants/ AccusedNo.5, 8 and 10 under the impugned calendar and judgment dt.8.10.2020 in CC.No.154/2016 on the file of Addl. Judicial Magistrate of First Class court, Chilakaluripet is hereby set aside. Consequently, the appellants/A5 and A10 are found not guilty for the offence punishable under Sec.326 of IPC, A8 is found not guilty for the offence punishable lunder Sec.324 of IPC and they are acquitted for the said offences. The fine amount paid by the appellant/A10 shall be returned to him after expiry of revision time. The fine amount paid by A5 shall be returned to his legal heirs after expiry of revision time. The bail bonds of the appellants/accused are hereby cancelled. 5Presentation of the appeal19.10.2020

6. Filing of the Appeal23.10.2020

7.Date of hearing10.08.2023

8.Date of judgment21.08.2023 2

This Criminal appeal is coming on 10.08.2023 before me for final hearing in the presence of Sri.P.Anjaneyulu Chowdary,

Advocate for the Appellant/accused and of Sri K.Baala Hanumantha

Reddy, Learned Addl. Public Prosecutor for the State and upon hearing and considering the material on record, having stood over for consideration till this day, this Court, delivered the following:

JUDGMENT

This Criminal Appeal is directed against the calendar and judgment dt.8.10.2020 in CC.No.154/2016 passed by the learned Additional Judicial Magistrate of First Class, Chilakaluripet, where under and whereby, the appellants/accused No.5, 8 and 10 are found guilty and they were convicted under Sec.248(2) Cr.P.C and accused No.5 and 10 are sentenced to undergo Simple

Imprisonment for a period of THREE YEARS and to pay a fine of

Rs.500/-, in default payment of fine amount, Simple Imprisonment for Five months for the offence punishable under Sec.326 of IPC and A8 is sentenced to under go Simple Imprisonment for a period of TWO YEARS for the offence punishable under Sec.324 of IPC.

The other accused A1 to A4, A6, A7, A9 and A11 were acquitted under Sec.248(1) Cr.P.C for the offences punishable under

Secs.147, 148, 324, 326 r/w 149 of IPC. The appellants/accused

No.5, 8 and 10 feeling dissatisfied with the conviction and sentence passed against them under the impugned calendar and judgment, filed the present appeal.

02.For brevity, the parties in this appeal being referred in same capacity as in trial court.

03.The Sub-Inspector of police, Nadendla Police Station filed charge sheet in Cr.No.2/2014 under Secs.147, 148, 324, 326 3 r/w 149 of IPC against the accused No.1 to 11 before Additional

Judicial First Class Magistrate court, Chilakaluripet.

04.The averments of the charge sheet in brief are as follows:

(a)The defacto-complainant/Bathula Arlaiah, Chandavaram village of Nadendla Mandal is doing rod bending work. In panchayat elections, the defacto-complainant and his group casted their votes in favour of Telgugu Desam Party. The accused are smpathizers of YSR congress party and there was disputes between the two groups.

b)On 31.12.2013 at 11.30 p.m, the defacto-complainant and others went to the house of Kasukurthi Prakasam for wishing him in view of New Year, A1 abused them in filthy language in drunken state. One Garapati Babu intervened and took him away.

On 2.1.2014 at 10.30 p.m., the defacto-complainant heard the noise from the house of Kasupurthi Prakasam and he went there and found A1 altercating with his nephew Pedda Joji. In the meanwhile, the other accused joined by arming with axe, rods and sticks and beat and inflicted injuries to the defacto-complainant,

Garapati Pedda Mariya Dasu, Garapati Jojaiah, Bandu Bala Swamy and K.Koteswara Rao. The neighbours came and intervened and separated both groups. Immediately, the injured were shifted to the Community Health Centre, Chilakaluripet for treatment.

c)On receipt of the Hospital intimation, the Station House

Officer, Chilakaluripet recorded the statement of defacto- complainant and sent the same to the Station House Officer,

Nadendla Police Station on the point of jurisdiction. The Sub- 4

Inspector of police, Nadendla Police Station on receipt of the statement of the defacto-complainant registered the FIR in

Cr.No.2/2014 under Secs.147, 148, 324, 326 r/w 149 of Indian

Penal Code on 3.1.2014 at 10.00 a.m., and submitted the original

FIR to the Additional Judicial First Class Magistrate court,

Chilakaluripet and took up investigation. He visited the scene of offence, examined and recorded the statements of witnesses. On 16.6.2014, he arrested the accused and later produced before

Additional Judicial First Class Magistrate court, Chilakaluripet for

remand. The Sub-Inspector of police on receipt of wound certificate and after completion of investigation, filed charge sheet.

05.The learned Additional Judicial First Class Magistrate,

Chilakaluripet on perusal of the charge sheet, the case was taken on file under Secs.147, 148, 324, 326 r/w 149 of IPC against the accused and registered the case as CC.No.154/2016 and issued summons to the accused No.1 to 11. On receipt of summons, the accused appeared before the court and engaged counsel. The copies of documents were furnished to them as contemplated under Sec.207 Criminal Procedure Code.

06.The learned Additional Judicial First Class Magistrate,

Chilakaluripet examined the accused No.1 to 11 U/sec.239 of

Criminal Procedure Code by putting the substance of the allegations against them in the charge sheet. The charges under

Secs.147, 148, 324, 326 r/w 149 of IPC were framed against the accused No.1 to 11. The accused denied the charges and claimed to be tried the case.

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07.At the time of trial, the prosecution examined P.Ws.1 to

P.W.12 and marked Exs.P1 to P11. After closure of the evidence of prosecution, the accused No.1 to 11 were examined under

Sec.313(i)(b) of Criminal Procedure Code by putting the incriminating evidence available against them in the evidence of prosecution witnesses. The accused denied the same. The accused neither examined the witnesses nor marked the documents in their defence.

08.The learned Additional Judicial First Class Magistrate,

Chilakaluripet on scrutiny of the evidence of prosecution witnesses and exhibits marked and on hearing on both sides gave finding that the prosecution proved the guilt of the accused No.5 and 10 for the offence punishable under Sec.326 of IPC, A8 was found guilty for the offence punishable under Sec.324 of IPC and they were convicted under Sec.248(2) of Cr.P.C. The other accused A1 to

A4, A6, A7, A9 and A11 were found not guilty for the offences punishable under Secs.147, 148, 324, 326 r/w 149 of IPC and they were acquitted under Sec.248(1) Cr.P.C. The appellants/A5, A8 and

A10 feeling dis-satisfied with the conviction and sentence passed against them under the impugned calendar and judgment, filed the appeal.

09.The appeal against A5 is abated on 4.1.2023 as he died on 15.12.2022.

10.Heard on both sides.

11.The points arose for consideration in this criminal appeal are as follows:

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1. Whether the evidence of P.Ws.1 to 12 is worthy of credence in maintaining the conviction and sentence passed against the Appellants/Accused, under the impugned calender and Judgment ?

2. Whether the conviction and sentence passed against the Appellants/Accused, under the impugned Calender and Judgment in CC.No.154/2016 dt.8.10.2020 is sustainable in law and on facts and thereby interference in the findings of the learned trial Judge, needs to be warranted; if so, on what grounds, and to which extent ?

and

3. What is the result of appeal?

12.POINT NO.1:

The prosecution examined as many as 12 witnesses to prove the charges levelled against the accused. PW2 is the defacto-complainant. P.Ws.1 to 5 are injured in this case. P.Ws.6 and 7 examined as eyewitnesses. P.Ws.8 and 9 are the Medical

Officers, who examined P.Ws.1 to 5 and gave wound certificates.

P.Ws.10 to 12 are the Investigating Officers. Therefore, the prosecution case mainly stands on the testimonies of P.Ws.1 to 7 as they are the main witnesses in this case.

13.P.Ws.1 and 2 have deposed that they does not know anything about this case and that the accused never caused injuries to them. Further, P.Ws.1 and 2 stated that about three years ago they fell down and sustained simple injuries. Both P.Ws.1 and 2 being the defacto-complainant and injured turned hostile to the case of prosecution without stating anything against the accused. Now it has to be seen whether the prosecution able to prove the guilt of the accused through the evidence of P.Ws.3 to 7?

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14.As per the evidence of P.Ws.3 to 5, they belongs to

Telugu Desam Party and the accused are the supporters of YSR

Congress Party and there were disputes between the two groups in the village. P.W.3 further deposed that on one day in the year 2014 at about 11.00 or 11.30 p.m., midnight, he found a quarrel between the Telugu Desam Party sympothizers and YSR Congress party supporters and that he went there and found the accused attacking on P.Ws.1, 2 and 5 and he tried to rescue them. In the meanwhile, A5 attacked with an iron rod and inflicted injury to his left hand elbow and he received fracture injury. Though P.Ws.3 to 5 examined that they were injured in this case, but they have not stated about the specific overt acts of A5 on P.W.3. As per the evidence of PW3, A5 beat with an iron rod and inflicted injury on his left hand elbow. Whereas P.W.8 Medical Officer, who examined

P.W.3 and issued Ex.P6- wound certificate deposed that he found 6cmx1cm/ contusion on left fore arm including upper arm, which is contrary to the evidence of P.W.3.

15.As per the case of prosecution, the incident took place on 2.1.2014 at 10.00 p.m. Immediately, the injured was shifted to the Government Hospital, Chilakaluripet. P.Ws.8 and 9 being the

Medical Officers examined the injured on 2.1.2014. Whereas P.W.8 deposed that he examined P.W.3 and found the age of the wound is three to four days prior to his examination, which is also contrary to the case of prosecution. Therefore, the ocular evidence of P.W.3 is not supported by the medical evidence of P.W.8 and the averments of Ex.P6 wound certificate. Further the X-ray report was 8 not filed and Radiologist was not examined. However, A5 died during pendency of appeal and the case against him is abated.

16.As per the evidence of P.W.4, about 4 or 5 years back at about 11.00 or 11.30 p.m., midnight, he found quarrel among the two groups i.e., accused belongs to YSR Congress party attacking

Telugu Desam Party supporters i.e., P.Ws.1 and 2. He went there, by that time A10- Peda Gnanaiah beat him with a stick on his right hand wrist and he sustained injury. P.W.4 did not state about the injuries on P.Ws.3 and 5. So also, P.W.5 also did not state about the injuries on P.Ws.2, 3 and 4, but P.Ws.3 to 5 stated that the accused attacked P.Ws.1 and 2 and inflicted injuries. As discussed above,

P.Ws.1 and 2 did not state anything against the accused.

17.As per the evidence of P.W.4, he sustained injury to his right hand wrist. Whereas the Medical Officer P.W.9 deposed that he found swelling of 8x7 c.m., extending over right fore arm and wrist. The Radiologist was not examined and he was not cited as a witness. The evidence of P.W.9 shows the fracture of right forearm

Anterior and Posterior view and lateral view and also fracture of right ulna, but the Radiologist who had taken X-ray was not examined and not cited as a witness. The injury as stated by P.W.4 is also not inconsonance to the Medical evidence of P.W.9 and

Ex.P7 wound certificate. As per the evidence of P.W.5, A8 attacked him with an iron rod and inflicted injury to his upper lip. Whereas,

P.W.8- Medical Officer found three injuries on P.W.5. Therefore, the evidence of P.W.5 is varies to the evidence of P.W.8 coupled with 9

Ex.P5 wound certificate as P.W.5 did not state about the contusions of left eyebrow and left forearm.

18. It is pertinent to note that though P.W.5 stated that A9 beat P.W.1 with a stick on his legs, but P.W.1 did not state anything against A9. The prosecution examined P.Ws.6 and 7 as eyewitnesses. As per the evidence of P.W.6 on hearing the noise, he came out of the house and found altercation was going on at the house of P.W.7. In the said altercation, P.Ws.1, 2 and 5 sustained injuries, but P.W.6 did not state the specific overt acts of the accused. However, as discussed above, P.Ws. 1 and 2 did not support the case of the prosecution.

19.P.W.7 was examined as another eyewitness to the occurrence. As per the evidence of P.Ws.3 to 6, the incident took place at the house of P.W.7. Whereas P.W.7 deposed that the incident took place at the Well. The evidence of P.W.11 coupled with Ex.P11 rough sketch, the Well is situated at some distance from the house of P.W.7. The scene of offence was shown in Ex.P11 in front of the house of P.W.7, but P.W.7 deposed that the incident took place at the Well but not at his house. Therefore, it raises doubt where the incident took place, because the ocular evidence of P.Ws.1 to 6 is contrary to the evidence of P.Ws.7, 10 and 11 coupled with Ex.P11. Though P.W.7 stated that there were two groups in the village and in the said altercation, A1 beat with P.W.2 with an Axe, A2 beat P.W.3 with an axe, but P.W.2 did not state anything against the accused 1 and 2. Therefore, the evidence of

P.W.7 is also varies to the evidence of other witnesses.

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20.It is pertinent to note that the incident took place at about 11.00 p.m. In villages, generally the people will go to sleep by 9.00 or 10.00 p.m. As per the evidence of P.W.11 coupled with

Ex.P11, there were no electric poles or lights where the incident took place, either at the house of P.W.7 or at the Well. How P.Ws.3 to 5 or 6 and 7 identified the accused was failed to explain by the prosecution.

21.The learned Additional Judicial Magistrate of First Class,

Chilakaluripet at the end of para No.28 in page No.14 of judgment, it is mentioned that though there was no light, but being the known villagers by recognizing gait and timbre of their voices, there is possibility of identification of the persons. When there was no light, even as per the observation made by the learned

Additional Judicial Magistrate of First Class, Chilakaluripet, how the

gait of the persons will be observed and recognized. When there was an altercation took place in between two groups consisting of several persons, identifying the persons by seeing the gait and timbre of the voices is not possible.

22.The learned Additional Judicial Magistrate of First Class,

Chilakaluripet found the accused No.1 to 6, 7, 9 and 11 were not guilty for the charges levelled against them and acquitted.

Whereas the case of the prosecution is, two groups involved in commission of offence as the altercation took place in view of differences between the two political party sympathizers. Further, the prosecution failed to prove the motive part of the offence. The evidence of P.Ws.1 to 5 is not worthy in credence in maintaining 11 the conviction. Therefore, this point is answered in favour of appellants.

23.POINT NO.2:

In view of the aforementioned reasons in answering point no.1, the learned Additional Judicial Magistrate of First Class,

Chilakaluripet failed to appreciate the facts and law on right perspective and it leads to erroneous conclusion. The trial court also failed to note when the incident took place at 11.00 p.m., and when there was no light and the said altercation took place between two groups consisting of several persons, recognizing and identifying the overt acts does not arise. Even P.Ws.3 to 5 did not state the overt acts of A5, A8 and A10. The defacto-complainant -cum- injured P.W.2 and another injured P.W.1 did not state anything against the accused. Basing on the statement of P.W.2 i.e., Ex.P1, the criminal law was set into motion, but he did not support the case of prosecution. The trial court failed to consider all these facts. Even the evidence of prosecution witnesses is not cogent and consistent through out. The prosecution failed to prove the charges levelled against the appellants beyond reasonable doubt and the appellants are entitled for acquittal for the said offences. This point is answered in favour of the appellants.

24.POINT NO.3:

In the result, Criminal Appeal is allowed and as a sequel thereto, the conviction and sentence passed against appellants/

AccusedNo.5, 8 and 10 under the impugned calendar and judgment dt.8.10.2020 in CC.No.154/2016 on the file of Addl.

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Judicial Magistrate of First Class court, Chilakaluripet is hereby set

aside. Consequently, the appellants/Accused No.5 and 10 are found not guilty for the offence punishable under Sec.326 of IPC,

A8 is found not guilty for the offence punishable lunder Sec.324 of

IPC and they are acquitted for the said offences. The fine amount paid by the appellant/A10 shall be returned to him after expiry of revision time. The fine amount paid by A5 shall be returned to his legal heirs after expiry of revision time. The bail bonds of the appellants/accused are hereby cancelled.

Dictated to the Stenographer Gr-I, transcribed by her,

corrected and pronounced by me in open Court, this the 21st day of

August, 2023.

sd/- O.V.Nageswara Rao

XIII Addl. District & Sessions Judge, Narasaraopet.

Appendix of Evidence Witnesses Examined “No documentary evidence is adduced on either side.”

sd/- O.V.Nageswara Rao

XIII A D S J., NRT.,

Copy to:

The Addl. Judl. I Class Magistrate court, Chilakaluripet // True copy //

1

CALENDAR & JUDGMENT

In the Court of the XIII Addl. Sessions Judge: Narasaraopet,

Present: Sri O.Venkata Nageswara Rao, XIII Addl. Sessions Judge, Narasaraopet,

Wednesday, this the 23rd day of August, 2023,

Criminal Appeal No.61 of 2020

(C.C.No.489 of 2016 on the file of I A J F C M., NRT.,) 1Name & DescriptionChalla Murali Krishna M/o Ramanamma, Hindu, of the appellant/ accused 39 years, Business,R/o D.No.5-5-38/34, Near Puvvada Hospital, Near Kasu Vengala ReddyLibrary,Arundelpet,Narasaraopet, Guntur District.

2Name and description of 1. Battula Jagan Mohana Rao S/o Venkaiah, Hindu, Police Constable, 49 years, R/o D.No.10- the respondent/ 7-17, Near Gajjala Brahma Reddy Hospital, complainant Arunddelpet, Narasaraopet, Guntur Dist.

2. The State: SHO rep. by Addl. Public Prosecutor, XIII Addl. District Court, Narasaraopet.

3Sentence and order and In the result, accused found guilty for the the law under which the offence punishable U/sec.138 of Negotiable lower court was imposedInstrument Act and accordingly, he is convicted under section 255(2) of Criminal Procedure Code and he is sentenced to undergo Rigorous imprisonment for a period of ONE YEAR and to pay compensation of Rs.5,00,000/- to the complainant within three months, in default, he shall undergo simple imprisonment for a period of One month.

4Whether modified, Dismissed and confirmed confirmed or reversed. If In the result, this Criminal Appeal is modified, the details of dismissed by confirming the conviction and modification. sentence passed against appellant/accused in

CC.No.489/2016 dt.23.1.2020 by the learned I

Additional Judicial First Class Magistrate,

Narasaraopet. The trial court is directed to take steps for serving the sentence imposed on the accused by issue of warrant.

5Presentation of the appeal 12.02.2021

6. Filing of the Appeal18.02.2020

7.Date of hearing21.08.2023

8.Date of judgment23.08.2023 2

This Criminal appeal is coming on 21.08.2023 before me for final hearing in the presence of Sri.K.Sambasiva Rao, Advocate

for the Appellant/accused and of Sri.M.Sreeramulu, advocate for

the respondent/complainant and of Sri K.Baala Hanumantha Reddy,

Learned Addl. Public Prosecutor for the State and upon hearing and considering the material on record, having stood over for consideration till this day, this Court, delivered the following:

JUDGMENT

This Criminal Appeal is directed against the calendar and judgment dt.23.1.2020 in CC.No.489/2016 passed by the learned I Additional Judicial Magistrate of First Class, Narasaraopet, where under and whereby, the appellant/accused was convicted under Sec.255(2) of Criminal Procedure Code and sentenced to undergo Rigorous Imprisonment for a period of ONE YEAR and to pay compensation of Rs.5,00,000/- within three months, in default, he shall under go Simple Imprisonment for a period of One Month for the offence punishable under Sec.138 of Negotiable

Instruments Act, 1881. The appellant/ accused feeling dissatisfied and aggrieved with the conviction and sentence passed against him under the impugned calendar and judgment, filed the present appeal.

02.For brevity, the parties in this appeal being referred in same capacity as in trial court.

03.The complainant filed the complaint under Sec.200 of

Criminal Procedure Code against the appellant/accused before the I

Additional Judicial Magistrate of First Class court, Narasaraopet for

the offence punishable under Sec.138 of Negotiable Instruments

Act, 1881.

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04.The averments of the complaint in brief are as follows:

(a)The accused borrowed a sum of Rs.5,00,000/- from the complainant on 10.2.2015 for his family expenses and executed a promissory note agreed to repay the same with interest at 24% p.a. Subsequently, inspite of many a demand, the accused failed to repay the amount due under the promissory note, but issued a cheque for Rs.5,00,000/- on 10.2.2016 drawn on ICICI

Bank Limited, Narasaraopet.

(b)The complainant presented the said cheque in his banker Indian Bank, Narasaraopet on the same day, but the said cheque was returned with memo dt.11.2.2016 as 'Account

Blocked’. The complainant got issued statutory notice on 25.2.2016 demanding the accused to pay the amount covered by the cheque as it was dishounoured. The accused received the said notice on 28.3.2016 and kept quiet without issuance of reply and also not paid the amount covered by the cheque. Therefore, the complainant prays to dealt the accused as per law, as he issued cheque without keeping sufficient funds in the account.

05.The learned I Additional Judicial Magistrate of First Class,

Narasaraopet on perusal of complaint and sworn statement of the complainant, the case was taken on file under Sec.138 of

Negotiable Instruments Act against the accused and registered the case as CC.No.489/2016 and issued summons to the accused. On receipt of summons, the accused appeared before the said court and engaged the counsel. The copies of documents were furnished to the accused as contemplated under Sec.207 Criminal Procedure

Code. The accused was examined U/sec.251 of Criminal Procedure 4

Code by putting the substance of allegations against him in the

Complaint. The accused denied the same and claimed to be tried the case.

06.At the time of trial, the complainant himself examined as P.W.1 besides examined P.Venkata Babu and Bandaru Venkata

Ratnam as P.Ws.2 and 3 and marked Exs.P1 to P7. After closure of the evidence of complainant, the accused was examined under

Sec.313(i)(b) of Cr.P.C by putting the incriminating evidence available against him in the evidence of P.Ws.1 to 3. The accused denied the same. The accused did not choose to examine any witness but marked Exs.D1 and D2.

07.The learned I Additional Judicial Magistrate of First Class,

Narasaraopet, on scrutiny of the evidence of P.Ws.1 to 3 and by considering Exs.P1 to P7 and on hearing on both sides passed the judgment on 23.1.2020 and gave finding that the accused committed the offence punishable under Sec.138 of Negotiable

Instrument Act and he was convicted under Sec.255(2) of Criminal

Procedure Code and sentenced to undergo Rigorous Imprisonment for a period of ONE YEAR and also directed to pay compensation of

Rs.5,00,000/- within three months, in default, he shall under go

Simple Imprisonment for a period of One Month. The appellant/accused feeling dis-satisfied with the conviction and sentence passed under the impugned calendar and judgment, filed the appeal.

08.Heard both sides.

09.The points arose for consideration in this criminal appeal are as follows:

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1. Whether the evidence of P.Ws.1 to 3 is worthy of credence in maintaining the conviction and sentence passed against the Appellant/accused, under the impugned calender and Judgment ?

2. Whether the conviction and sentence passed against the Appellant/accused, under the impugned Calender and Judgment in CC.No.489/2016 dt.23.1.2020 is sustainable in law and on facts and thereby interference in the findings of the learned trial Judge, needs to be warranted; if so, on what grounds, and to which extent ?

and

3. What is the result of appeal?

10.POINT NO.1:

The learned counsel for the appellant filed written arguments stating that the trial court failed to consider the facts on right perspective and it leads to erroneous finding and that the appeal may be allowed. On the other hand, the learned counsel for the 1st respondent and Additional Public Prosecutor for 2nd respondent argued that the trial court considered the fats on right perspective and convicted the accused for commission of offence under Sec.138 of Negotiable Instrument Act and this appeal is filed without merits, only to protract the proceedings and it may be dismissed.

11.This is an appeal in respect of offence under Sec.138 of

Negotiable Instrument Act for dishonour of cheque. P.W.1 testified that the accused approached him on 10.02.2015 and borrowed

Rs.5,00,000/- for his family expenses and executed Ex.P1-

Promissory note agreed to repay the same with interest at 24% per annum. In order to prove the execution of Ex.P1 by the accused the 6 complainant examined P.W.2 and P.W.3 attestors of Ex.P1-

Promissory note. Both P.W.s 2 and 3 also stated in the same lines of evidence of P.W.1 about the execution of Ex.P1 by the accused on receipt of consideration mentioned in it. In the cross examination of P.Ws.1 to 3 nothing worthwhile was elicited by the learned counsel for the accused to discredit their testimonies.

12.P.W.1 further deposed that on 10.02.2015, the accused issued Ex.P2-Cheque for due discharge of the amount due under

Ex.P1-Promissory note. P.W.1 presented Ex.P2-Cheque in his banker

Indian Bank and the said cheque was returned as “Account

Blocked”. In order to establish the said fact the complainant filed

Ex.P3 and Ex.P4. The accused took plea in the trial court also that the reason for return of the cheque as Account Blocked is not under the perview of dishonour of cheque. In case Urban

Cooperative Credit Society Vs. State of Gujarat and another

reported in AIR 1999 SC 1952 wherein his lordship held that the cheque was returned on the reason of ‘account blocked’ is also constitutes the offence punishable under Sec.138 of Negotiable

Instrument Act. Therefore, the plea taken by the accused is not correct.

13.P.W.1 further deposed that on receipt of Ex.P3 and Ex.P4 along with Ex.P2-Cheque, he got statutory legal notice under Ex.P5 on 25.02.2016. i.e., within one month from the date of return of the cheque. Ex.P5- Office copy of legal notice and Ex.P6-Postal receipts evidenced the said fact. Ex.P7 shows the original of Ex.P5 notice was received by the accused on 28.03.2016. On receipt of

Ex.P7- Postal acknowledgment, since the accused failed to pay the 7 amount covered by Ex.P2- Cheque within a grace period of 15 days, filed the complaint within one month. Though, the accused took plea that there was a delay of 35 days in receiving of the

Ex.P7- Postal Acknowledgment, but P.W.1 was not cross examined to that affect. Further, the accused also did not adduce evidence and also not chosen to examine the postal authorities that Ex.P5 notice was served on him much earlier than Ex.P7. Therefore, the plea taken by the accused is not correct.

14.The further contention of the learned counsel for the accused is that P.W.1 has no capacity to lend the amount. In order to substantiate the said contention filed Ex.D1 and Ex.D2 certified copies of exparte judgments in other two suits. On perusal of Ex.D1 and Ex.D2 coupled with evidence of D.W.1, two money suits were filed against the complainant by the 3rd parties were decreed exparte. P.W.1 also admitted in his cross examination that was booked under gaming Act. Merely, two suits were filed by the others, were decreed against the complainant, no adverse interference can be drawn. The fact remains is P.W.1 is working as constable and drawing salary, besides he gave evidence that he sold the property for Rs.25,00,000/- to one Sekhar and out of the said amount Rs.5,00,000/- was given to the accused. P.W.1 further stated that he is receiving Rs.50,000/- per month towards rents. In order to rebut the evidence of P.W.1 no evidence was adduced by the accused. Therefore it can be said that P.W.1 has got capacity to lend the amount to the accused.

15.In the cross examination of P.W.1, the learned counsel

for the accused put a suggestion that P.W.1 had taken two empty

8 signed cheques from the accused. It shows that the accused did not dispute his bank account and Ex.P2 is the one leaf in the cheque book issued by his banker and it contains his signature.

16.In case Ghanshyamdas Lalchand Chandak Vs.

Sheikh Hamid Sheikh Gulab and Another in Criminal Appeal

No.538 of 2006 before the Hon’ble High Court of Bombay

wherein it was held that if the signature on cheque is admitted, statutory presumption under Sec.139 of the Act stands activated and accused is obligated to rebut the presumption before burden of proving existence of debt or liability shifts to complainant. In this case, though the accused gave evidence as D.W.1 but he has not denied his signature in Ex.P1 and Ex.P2 and also he has not stated that Ex.P2-Cheque was not issued to P.W.1. Therefore, the presumption under Sec.138 of Negotiable Instrument Act is infavour of the complainant and the same was un-rebutted by the accused.

17.In caseKalamani Tex and Another Vs. P.

Balasubramanian reported in (2021) 5 Supreme Court

Cases 283 cited by the learned counsel for the complainant wherein his lordship held that the presumption as to the legally enforceable debt is available against the accused even in case when he voluntarily signed and handed over the blank cheque leaf towards part payment. In this case, in cross examination of P.W.1, the learned counsel for the accused put a suggestion about taking of two signed cheques from the accused by P.W.1. Therefore, the ratio given in the said case is squarely applicable to the facts of this case on hand.

9

18.In case John K. Abraham Vs. Simon C. Abraham &

Another before the Hon’ble Apex Court in Criminal Appeal

No.2043 of 2013 deposed on 05.12.2013 wherein the trial court acquitted the accused. When the matter was taken up to the

Hon’ble High court of Kerala at Ernakulam, the judgment was

reversed and the accused was convicted. As against the said conviction, the matter was taken up to the Hon’ble Apex Court. The

Hon’ble Apex Court set aside the judgment of the Hon’ble High

court and acquitted the accused by confirming the judgment of trial court. Wherein the reasons for acquittal are, P.W.1 who is the complainant failed to say when his house was sold and also he failed to say when he availed loan from the Co-operative society.

So also he stated that the accused himself written the cheque, to very next movement he gave contrary statement about the handwriting on the cheque. The said aspects were not put in the cross examination of P.W.1 by the learned counsel for the accused.

Therefore, the ratio given in the said case is not applicable to the facts of this case on hand.

In view of the above discussions, this point is answered against the complainant.

19.POINT NO.2:

In view of the aforementioned reasons in answering point no.1, the learned I Addl. Judicial Magistrate of First Class,

Narasaraopet, properly analyzed and weighted the evidence and gave finding that the complainant proved the guilt of the accused for the offence punishable under Sec.138 of Negotiable

Instruments Act and convicted the accused by imposing 10 appropriate sentence. There are no reasons warranting interfere with the finding given by the learned I Addl. Judicial Magistrate of

First Class, Narasaraopet and that the appeal is liable to be

dismissed. This point is answered against the appellant.

20.POINT NO.3:

In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed against appellant/accused in CC.No.489 of 2016 dt.23.1.2020 by the learned I Additional Judicial First Class Magistrate, Narasaraopet.

The trial court is directed to take steps for serving the sentence imposed on the accused by issuance of warrant.

Dictated to the Junior Assistant, transcribed by her,

corrected and pronounced by me in open Court, this the 23rd day of August, 2023.

Sd/- O. Venkata Nageswara Rao

XIII Addl. District & Sessions Judge, Narasaraopet.

Appendix of Evidence Witnesses Examined “No documentary evidence is adduced on either side.”

sd/- O.V.Nageswara Rao

XIII A D S J., NRT.,

Copy to:

The I Addl. Junior Civil Judge’s court, Narasaraopet.

// True copy //

1

In the Court of XIII Additional District Judge: Narasaraopet

Present: Sri O.Venkata Nageswara Rao XIII Additional District Judge, Narasaraopet,

Friday, this the 25th day of August, 2023,

Appeal Suit No.139 of 2016

(IP No.35/2015 on the file of A S C J, Narasaraopet) Between:

Muppavarapu Ramanjaneyulu, S/o Ananthaiah, aged about 57 years, Hindu, cultivtion, R/o Adivipalem (V), Vellalacheruvu Post, Santhamaguluru Mandal, Prakasam District.

...Appellant/Petitioner

AND

1. Sikhakolli Haranatha Babu, S/o China Venkateswarlu @ Venkateswarlu, Hindu, Business, aged bout 49 years, R/o Door No.8-11-31/A, Kothabavi Bazaar,Narasaraopet town, Guntur District.

2. Muttipati Mastan, S/o Meera Shaheb, Muslim, auto driver, aged about 50 years,

3. Bachina Sambasiva Rao, S/o Venkateswarlu, Hindu, aged about 46 years, cultivation.

4. Bachina Narayana Rao, S/oVeera Raghavaiah, Hindu, aged bout 46 years, Cultivation.

5. Swarna Koteswara Rao, S/o Parasuramaiah, Hindu, aged about 45 years, transport business,

6. Pothuganti Kashim, S/o Pakiru Saheb, Muslim, aged about 50 years, cultivation,

7. Bchina hanumantha Rao, S/o Ramulu, Hindu, aged bout 65 years, cultivation,

8. Tirumalavarapu Srinivasa Rao, S/o Hanumantha Rao, Hindu, aged about 45 years, cultivation.

9. Kankanaala Nageswara Rao, S/o Puttaiah, Hindu, aged about 60 years, cultivation. All are the above, R/o J.Pangulur village and Mandal, Prakasam District.

10. Chappidi China Venkaiah, S/o Ramaiah, Hindu, aged about 70 years, cultivation.

11. Chappidi Peda Venkaiah, S/o Ramaiah, Hindu, aged about 75 years, cultivation.

12. Chappidi Venkateswarlu, S/o Ramaiah, Hindu, aged bout 60 years, cultivation. R10 to R12 are R/o Janagalapalle village, Nuzendla Mandal, Guntur District.

13. A.Sambasiva Rao, S/o Suryanarayan, Hindu, aged about 35 years, business.

14. Thota Vijaya Bhaskar, S/o Gangadhara Rao, Hindu, aged about 33 years, cultivation. R13 and R14 are residents of Khaja Village,

Mangalagiri Mandal, Guntur District. ...Respondents

2

On appeal filed against the decree and order passed in IP No.35/2015 on the file of Addl. Senior Civil Judge's Court, Narasaraopet dated 25.7.2016. Between:

Muppavarapu Ramanjaneyulu ...Petitioner.

AND

1. Sikhakolli Haranatha Babu

2. Muttipati Mastan

3. Bachina Sambasiva Rao

4. Bachina Narayana Rao

5. Swarna Koteswara Rao

6. Pothuganti Kashim

7. Bchina hanumantha Rao

8. Tirumalavarapu Srinivasa Rao

9. Kankanaala Nageswara Rao

10. Chappidi China Venkaiah

11. Chappidi Peda Venkaiah

12. Chappidi Venkateswarlu

13. A.Sambasiva Rao

14. Thota Vijaya Baskhar...Respondents

This appeal is coming on 21.08.2023 before me for arguments in the presence of Sri.K.V.Siva Prasada Rao, Advocate

for the Appellant/petitioner and of Sri K.V.Sivaprasada Rao,

Advocate for the 1st respondent and of respondents 2 to 6 and respondents 8 to 14 remained exparte and of 7th respondent died and upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This is an appeal directed against the decree and Order dt.25.7.2016 in IP No.35/2015 passed by the learned Additional

Senior Civil Judge, Narasaraopet, where under and whereby the

petition filed under Sec.10 of Provincial Insolvency Ac to adjudge the petitioner as an insolvent is dismissed with costs. The appellant/ petitioner feeling dissatisfied with the said impugned

Order, filed the present appeal.

02.For brevity, the parties in this appeal being referred in same capacity as in trial court.

3

03.The petition filed by the petitioner under Sec.10 of

Provincial Insolvency Act, 1920 to adjudge the petitioner as an insolvent.

04.The averments of the petition in brief are as follows:

a)The petitioner is an agriculturist and he has taken the landed property of others on lease and raised commercial crops at Muppalla village, Ipuru Mandal and sustained loss due to natural calamities and fluctuations of rates in the market. Lack of seasonal rains also one of the reason for not getting good yield and sustained loss. The petitioner borrowed amounts from the respondents 2 to 14 and he could not repay the amount.

b)The petitioner did not borrow amount from the 1st respondent. He borrowed amount from Arvapalli Srinivasa Rao and

Joseph Reddy. They have taken the signatures of the petitioner in empty promissory notes and they got filed O.S.324/2014 on the file of Additional Senior Civil Judge’s court, Narasaraopet in the name of 1st respondent. In fact the petitioner is not due any amount to the 1st respondent. The liabilities of the petitioner more than his assets and that the petitioner prays to adjudge him as an insolvent.

05.The brief averments of the counter filed on behalf of the 1st respondent are as follows:

The averments in the petition are not correct and the same were invented for the purpose of filing this Insolvency

Petition. The petitioner borrowed the amount and executed the promissory note in favour of the 1st respondent and for non- discharge of the amount, he filed O.S.324/2014 and the said suit 4 was decreed on 24.4.2015. The petitioner is having agricultural lands and without showing the said land and that the 1st respondent may take steps to realize the decree amount by proceeding against the suit property and filed this petition by suppressing the real facts with fictitious facts as the 1st respondent may take steps to realize the decree amount by proceeding against his properties. The respondents 2 to 14 are not genuine creditors and they are collusive parties to the petition. The petitioner did not commit act of insolvency and that the respondent prays to dismiss the Insolvency Petition.

06.The respondents 2 to 14 remained exparte.

07.At the time of enquiry on behalf of the petitioner, he himself examined as PW1 and marked Ex.P1. On behalf of the 1st respondent, he himself examined as RW1 and marked Exs.R1 and

R2. Ex.P1 is the plaint. Exs.R1 and R2 are the judgment and decree in O.S.324/2014 on the file of Additional Senior Civil Judge’s court,

Narasaraopet.

08.The learned Additional Senior Civil Judge, Narasaraopet on consideration of the averments of the petition, counter, evidence both oral and documentary and on hearing both sides, passed the Order on 25.7.2016 and dismissed the petition. The appellant/petitioner feeling dissatisfied and aggrieved as against the said dismissal order, filed the present appeal.

09.Heard on both sides.

10.The points arose for consideration in this appeal are as follows:

1. Whether the impugned Order and decree dated 25.7.2016 in IP.No.35/2015 passed by the learned Addl.

5

Senior Civil Judge, Narasaraopetis sustainable in law

and on facts.? and

2. What is the result of the appeal?

11.POINT NO.1:

The learned counsel for the appellant argued that the trial court failed to consider the facts on right perspective and it leads to erroneous conclusion and that the appeal may be allowed and the order passed by the trial court may be set aside. On the other hand, the learned counsel for the 1st respondent argued that the trial court appreciated the facts and law on right perspective and gave finding and this appeal is filed without merits and it may be dismissed.

12.This appeal is filed against the dismissal order passed by the learned Additional Senior Civil Judge, Narasaraopet in

IP.No.35/2015 filed under Sec.10 of Provincial Insolvency Act, 1920 to adjudge the petitioner as an insolvent.

13.P.W.1 testified that he is an agriculturist and raised commercial crops by taking lease of the lands of the ryots of

Muppalla village and Ipuru Mandal. For raising commercial crops, he borrowed amounts from the respondents 2 to 14, but he sustained loss in view of natural calamities i.e., as there was no seasonal rains and market rate fluctuations and that he could not repay the amount borrowed from the respondents 2 to 14. Since he committed an act of insolvency, he filed this petition to adjudge him as an insolvent.

14.The respondents 2 to 14 remained exparte. The 1st respondent alone contested the matter. The plea taken by the 1st 6 respondent is that the petitioner borrowed the amount of Rs.6 lakhs from him on 1.6.2012 and executed a promissory note, but he failed to repay the amount. For that, he filed OS.No.324/2014 against the petitioner basing on the said promissory note and the said suit was decreed on 24.4.2015. Ex.P1 plaint and Exs.R1 and

R2 judgment and decree of OS.No.324/2014 established the fact that the suit filed by 1st respondent against the petitioner for recovery of amount basing on suit promissory note was decreed on merits.

15.The plea taken by the petitioner is that he did not borrow amount from the petitioner and his signatures were taken by Arvapalli Srinivasa Rao and Joseph Reddy and they got filed this suit through the plaintiff. Whereas on perusal of Ex.R1 judgment in the brief averments of the written statement mentioned that the defendant denied his signature in the said suit promissory note, which is contrary to the plea taken by him in the insolvency petition and also chief affidavit of P.W.1. Further, in the written statement averments filed in OS.No.324/2014 shows, the petitioner filed OS.No.16/2009 on the file of Prl. Junior Civil Judge’s court,

Addanki for permanent injunction. It is also mentioned that

Arvapalli Srinivasa Rao obtained registered mortgage deed dt.23.6.1981 by taking original pattadar passbook and title deed of the petitioner.

16.P.W.1 also in his cross examination admitted that he is residing in a house, which is his ancestral property. PW1 also admitted that he is cultivating Ac.2.65 cents of land situated at

Yelchuri village and another Ac.2.10 cents and Ac.0.75 cents 7 alleged to be given to his elder daughter as gift. In order to establish that he gifted the above said extents in favour of his two daughters, no document was filed. Therefore, it can be said that the petitioner suppressed the fact of immovable properties owned by him. Whereas in the petition shows that he has not possessed any either movable or immovable properties, except showing two pants, one steel plate, shirt and Dothi. Assuming for a moment, if the house in which the petitioner is residing is ancestral house, he got share along with his father, but he has not shown the same in this petition. It shows that the petitioner suppressed the material facts of his properties and filed this petition. The petitioner also did not choose to file the document obtained from the Revenue authorities that no property stands in his name. He also failed to file the documents about the gift of the properties and also the properties covered by the mortgage deed dt.5.7.2013 and the property covered by the OS.No.16/2009 on the file of Prl. Junior

Civil Judge’s court, Addanki are not that of him.

17.Though the petitioner filed the petition to adjudge him as an insolvent by showing the 1st respondent along with respondents 2 to 14 as his creditors, But the averments of the petition and the evidence of P.W.1 shows that he did not borrow amount from the 1st respondent. In the said circumstances, he is not supposed to array the 1st respondent in this petition. However, which is contrary to the Ex.P1, Exs.R1 and R2. The main plea of the 1st respondent is, in order to evade the payment of decree amount by suppressing the facts filed this petition by showing the respondents2 to 14 who are the fictitious persons. In such 8 circumstances, the burden heavily lies on the petitioner that the respondents 2 to 14 are the genuine creditors of him. P.W.1 failed to say when the amount was borrowed from them. As per his evidence more than three years back, he borrowed amounts from them, but no suit was filed by them. Therefore, the alleged debts might have time barred.

18.Even to establish, how much amount was borrowed from each of the respondent not adduced the evidence and also any notice caused by the respondents 2 to 14 not filed. If really, the respondents 2 to 14 are genuine creditors, they could have contested the matter. Further, the petitioner failed to file the document that he raised crops in any extent by borrowing amounts from the respondents 2 to 14.

19.The petitioner also failed to file the Weather report taken from the Revenue Department about the natural calamities and sustaining of crop loss by him. So also, the petitioner failed to file the rates of the commercial crops obtaining from the

Agricultural market committee to show the fluctuations as pleaded in the petition. All these facts clearly and clinchingly goes to show that the petitioner suppressed the material facts and filed this petition only to evade the payment of decree amount to the 1st respondent. Hence, this point is answered against the appellant.

20.POINT NO.2:

In view of aforementioned reasons in answering the point No.1, the learned Additional Senior Civil Judge, Narasaraopet rightly appreciate the facts and law on right perspective and gave finding with sound reasons, which does not warrants interference 9 of this appellate court and this appeal is to be dismissed with costs.

21.In the result, Appeal is dismissed with costs by confirming the Order and decree dated 25.7.2016 in IP.No.35/2015 passed by the learned Additional Senior Civil Judge, Narasaraopet.

Dictated to the Stenographer Grade-I, transcribed by

her, corrected and pronounced by me in open Court, this the 25th day of August, 2023.

sd/- O.V.Nageswara Rao

XIII Addl. District Judge, Narasaraopet.

Appendix of Evidence Witnesses Examined “No documentary evidence is adduced on either side.”

sd/- O.V.Nageswara Rao

XIII A D J., NRT.,

Copy to:

The Addl. Senior Civil Judge's Court, Narasaraopet // True copy //

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, GUNTUR.

Present:- Sri O.Venkata Nageswara Rao, Prl. Senior Civil Judge, Guntur.

Friday, this the 22nd day of September, 2017.

O.S.No.459 of 2016

Between:-

Mogili Satish Kumar, s/o. Prakasa Rao, Hindu, 36 years, Business, r/o. Door No.12-25-175, Opposite to Sivalayam Temple,

Kothapet, Guntur, Guntur JCJC.... Plaintiff.

And

Thanneeru Venkateswarlu, s/o. Veeraiah, Hindu, 57 years, Business, r/o. 25-10-34, Vaddegudem, 1st Lane, Srinivasarao Thota, Guntur, Guntur JCJC. … Defendant.

This suit is coming on 21.9.2017 for final hearing before me in the presence of Sri A.R. Srinivasa Murthy, Advocate for the Plaintiff and of Sri

A. Govinda Rao, Advocate for the Defendant 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 filed for recovery of a sum of Rs.4,29,688/- basing on registered Mortgage Deed dated 29.7.2013 with interest and for costs.

2.The brief averments of the plaint are as follows:-

The defendant borrowed a sum of Rs.2,50,000/- from the plaintiff on 29.7.2013 for his family expenses and agreed to repay the same with interest at 24% per annum. Towards security of the said amount, the defendant executed registered mortgage deed on 29.7.2013 in respect of the plaint schedule property. Subsequently, inspite of repeated demands made by the plaintiff, the defendant failed to repay the amount. Therefore, the plaintiff filed the suit and prays to decree the suit.

3.The brief averments in the Written Statement filed on behalf of the defendant are as follows:-

The averments made in the plaint that the defendant borrowed

Rs.2,50,000/- from the plaintiff and executed mortgage deed are not correct. The plaintiff has to prove the alleged demands. The defendant has no necessity to borrow such huge amount for his family expenses as alleged in the plaint. The defendant is working as cooli and he is an illiterate person and impressionist. He doesn’t know about the 2 transaction mentioned in the plaint and that he never executed any deed much less mortgage deed in favour of the plaintiff in the presence of alleged attestors. The plaint schedule property is B-Form land and one cannot transfer or mortgage the said property to anybody. The boundaries mentioned in the schedule is also not correct. The alleged consideration mentioned in the mortgage deed was not passed. No notice was issued prior to filing of suit. If really it is a genuine transaction, the plaintiff could have issued notice. Therefore, the defendant prays to dismiss the suit.

4.Consideration of pleadings and on hearing both sides, the following issues are framed for trial:-

1.Whether the defendant borrowed Rs.2,50,000/- on 29.7.2013 and executed Mortgage Deed?

2.Whether the plaintiff is entitled for suit amount?

3.To what relief?

5.At the time of trial, on behalf of the plaintiff, the plaintiff himself examined as P.W.1, besides examined A. V. Srikanth and T. Siva

Kumar as P.Ws.2 and 3 and marked Exs.A1 to A3. On behalf of the defendant, the defendant himself examined as D.W.1 and marked no documents.

ISSUE Nos.1 & 2:- (Takenup jointly)

6.The learned counsel for Plaintiff and Defendant reiterated their contentions mentioned in the pleadings during the course of arguments.

7.The suit filed by the plaintiff for recovery of amount basing on

Ex.A1 registered mortgage deed. As per the evidence of P.W.1, the defendant borrowed a sum of Rs.2,50,000/- on 29.7.2013 for his family expenses agreed to repay the said amount with interest at 24% per annum. For the said amount, towards security, the defendant executed registered mortgage deed Ex.A1 on the same day i.e., on 29.7.2013 in favour of plaintiff by depositing the original gift deed stands in the name of defendant under Ex.A2. The plaintiff aslo filed Ex.A3 Encumbrance certificate evidencing that the defendant is the absolute owner of the plaint schedule property. P.Ws.2 and 3 being the attestors of Ex.A1 mortgage deed have also stated about the execution of Ex.A1 by the defendant on receiving of consideration before the Sub Registrar.

8.The contention of the defendant is, he did not borrow amount and that as he has no necessity to borrow such huge amount of 3

Rs.2,50,000/- for his family expenses as he is working as cooli. The other contention of the defendant is that the suit schedule property is B-Form patta land and that it cannot be either mortgaged or alienated by the defendant. Whereas, coming to the evidence, D.W.1 in his cross examination admitted that the photo affixed to Ex.A1 at page No.6 is that of him and also admitted the execution of Ex.A1 by stating that he received Rs.1,30,000/- from the plaintiff but not Rs.2,50,000/- as mentioned in Ex.A1. It shows that the evidence of D.W.1 is contrary to the averments of written statement filed by him. Though the defendant denied hand over of Ex.A2, but coming to cross examination, he has admitted about hand over of original title deed Ex.A2 on the date of execution of Ex.A1. The plea taken by the defendant in the written statement is contrary to his evidence.

8.As per the evidence of D.W.1, Ex.A1 is devoid of consideration to an extent of Rs.1.2 lakhs. Once the defendant admitted execution of

Ex.A1 registered mortgage deed, the burden lies on him to prove his contention that it is devoid of consideration to an extent of Rs.1.2 lakhs.

In order to substantiate his contention, he has not chosen to adduce evidence and also not filed any document. Therefore, the plea taken by the defendant that Ex.A1 is devoid of consideration to an extent of Rs.1.2 lakhs is not established.

9.The other contention of the defendant is that the mortgaged property is B-Form patta land and that he cannot mortgage or alienate the same. Assuming for a moment if the contention of the defendant is true, there is no possibility for registration of Ex.A1 by the Sub Registrar. Even if the plaint schedule property is assigned land, it can be mortgaged for availment of loan either from the bank or from third parties for agricultural purpose. In every B Form patta, time limit will be prescribed to reclaim the land to cultivate the same. If the assignee reclaimed the land and fit for cultivation and raising crops, after considering the possession and enjoyment of the said land, Pattadar Pass Book and Title Deed Books will be issued and that the said person became the absolute owner of the said property.

10.In order to substantiate the contention of the defendant, when

B Form patta was issued in favour of the defendant and further the mortgage deed is within stipulated time, no document was filed. In Ex.A3, 4 it is clearly mentioned that the defendant is the absolute owner of the plaint schedule property. Therefore, the 2nd plea taken by the defendant is also not established and proved.

11.The learned counsel for the defendant argued that the plaintiff failed to issue notice prior to filing of the suit and that Ex.A1 can be doubted. On the other hand, the learned counsel for the plaintiff argued that issuance of notice is not a condition precedent to file the suit. Once the defendant borrowed the amount, it is for him to repay the amount.

Therefore, the contention of the defendant counsel cannot be considered.

12.The suit is filed basing on Ex.A1 registered mortgage deed for recovery of amount. It is an admitted fact that no notice was issued prior to filing of the suit by the plaintiff. The plea taken by the defendant is that once the defendant borrowed amount and executed Ex.A1, it is for him to repay the loan amount and to redeem the mortgage. If the defendant failed to repay the amount, it is for the plaintiff to file a suit within stipulated time of 12 years from the date of mortgage to recover mortgage amount. It is not the case of the defendant that the suit is filed after limitation. When the suit is filed within limitation, it cannot be said that the plaintiff is not entitled to file the suit. Even assuming that if the plea of defendant is true and correct that he received Rs.1,30,000/- out of

Rs.2,50,000/- mentioned in Ex.A1, the defendant has to repay the said amount. But, he failed to pay the same. Since the defendant failed to pay the amount borrowed from the plaintiff by execution of Ex.A1 registered mortgage deed, the plaintiff is entitled to file suit for recovery of amount covered by Ex.A1. Therefore, this issue is answered in favour of the plaintiff.

ISSUE Nos.2 & 3:-

13.In view of the aforementioned reasons in answering issue No.1, the plaintiff filed the suit basing on Ex.A1 registered mortgage deed for recovery of the amount. The defendant took plea in the written statement that he did not borrow amount and not executed any document, much less the suit mortgage deed. Whereas, coming to the evidence part, he has admitted execution of Ex.A1 mortgage deed and hand over of original title deed Ex.A2. But, he took plea that Ex.A1 is devoid of consideration to an extent of Rs.1.2 lakhs out of Rs.2,50,000/-. But the defendant failed to prove the same. The other plea taken by the defendant is that the suit 5 schedule property cannot be mortgaged and also the plaintiff failed to issue notice prior to filing of suit are not tenable. The plaintiff proved his claim and that the suit has to be decreed.

14.In the result, the suit is decreed preliminarily with costs for a sum of Rs.4,29,668/- with interest at 6% per annum from the date of suit till date of realization on principal sum of Rs.2,50,000/-. Time for redemption is six months.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, this the 22nd day of September, 2017.

Sd./- O.Venkata Nageswara Rao,

Principal Senior Civil Judge,

Guntur.

Appendix of Evidence

Witnesses Examined For Plaintiff:-

P.W.1: M. Satish Kumar P.W.2: A.V. Sreekanth P.W.3: T. Siva Kumar

For Defendant:-

D.W.1: T. Venkateswarlu

Documents Marked For Plaintiff:-

Ex.A1/29.7.2013 : Extract of Mortgage Deed executed by defendant. Ex.A2/8.2.2001: Gift Deed bearing No..4960/2001. Ex.A3/22.7.2016 : Encumbrance Certificate.

For Defendant:- Nil.

Ild./- O.V.N.R.,

PSCJ, GNT.

IN THE COURT OF THE XIII ADDL. DISTRICT JUDGE : NARASARAOPET

PRESENT: Sri O.V. Nageswara Rao XIII Addl. District Judge, Narasaraopet.

Monday, this the 14th day of August, 2023.

A.S.No.8/2018

Between:- 1.Putchakayala Venkateswarlu (Died) 2.Putchakayala Leelavathi 3.Putchakayala Bala Sundara Rao 4.Putchakayala Ramadevi 5.Kanaparthi Anitha Kumari 6.Putchakayala Igenetious. .… Appellants

And

1.Yeddanapalli Hrudaya Mary 2.Yeddanapalli Ambrose Raju …. Respondents

This case is coming on this day for arguments in the presence of Sri P.Anjanayeulu Chowdary, Advocate for the Appellants no.2 to 6 and Appellant no.1 died; and of Sri Bolla Suresh, Advocate for R1 and R2; and upon perusing the material available on record, this Court made the following:

J U D G M E N T

This Appeal suit is filed U/Sec.96 of C.P.C., to set aside the decree and

Judgment passed in O.S.No.109/2012, dated 03-11-2007 on the file of Principal

Junior Civil Judge, Narasaraopet by dismissing the suit by granting costs throughout.

2)Memo filed not pressing the appeal. Memo recorded. Appeal is dismissed as not pressed, without costs.

Typed by the Typist on my dictation, corrected and pronounced by me in the open Court, this the 14st day of August, 2023.

XIII Addl. District Judge, Narasaraopet.