Smt P.gayathri, Pjcj, Dmm

O.S.No.149 of 2012, dt.04.05.2020PJCJ, DMM

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: DHARMAVARAM

Present: Smt. P.Gayathri,

Prl. Junior Civil Judge, Dharmavaram.

Monday, this the 04th day of May, 2020.

Original Suit No.149 of 2012

Between :-

1. Pullampalli Pothanna (died) by Lrs 4 to 9.

2. Pullammalli Narayana Swamy,

3. Pullampalli Chinna Venkataramudu,

4. Pullampalli Venkataramudu,

5. Pullampalli Sreenivasulu,

6. Pullampalli Venkatesulu,

7. Pullampalli Alivelamma,

8. Pullampalli Kullayamma.

(Plaintiff No.4 to 8 are added as parties as per Orders dated 17.12.2019, passed in I.A.427/2019. …Plaintiffs

And

1. Yekila Lakshmamma,

2. Yekila Gangamma,

3. Pullampalli Nagamma,

4. Pullampalli Pedda Venkataramudu,

5. Pullampalli Gangamma,

6. Pullampalli Gangadri,

7. Pullampalli Kullayamma,

8. Nagalakshmamma,

9. Nara Venkata Lakshmamma (died) by Lrs 10 to 13

10. N.Chinna Chenna Reddy,

11. N.Thirumala Reddy,

12. N.Bhaskar Reddy,

13. N.Ramachandra Reddy, (No.10 to 13 are residing at Dharmavaram, (No.10 to 13 are added as parties as per

Orders dated 26.06.2015, passed in I.A.155/2015. …Defendants

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This suit came up for final hearing before me on 10.03.2020 in the presence of Sri G.Nagaraju, Learned Counsel for the plaintiffs and of Sri P.Rama Prasad and Sri P.Ranga Raja Bhattar, Learned counsels for the defendant No.9 to defendant No.13, Defendants 1 to 8 remained exparte and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The suit is filed by the plaintiffs' for preliminary decree for partition and separate possession of their 1/4 th joint share in the suit schedule property comprising of land situate in Pothulanagepalli village of Dharmavaram mandal in

Sy.No.102 in an extent of Ac.13.39 cents out of Ac 26.68 cents together with suit costs.

2.The averments of the plaint are that the plaint schedule property is the ancestral property of the plaintiffs' and the defendant No.1 to 8. The plaintiffs' further submitted that the plaint schedule property originally belonged to

Pullampalli Ramannagari Chinnappa and his brother namely Ramanna,

Venkatapathy, Pedda Venkateramudu and Chinna Venkataramudu who had 1/5th share each in the plaint schedule property. The plaintiff’s further submitted that one of the brother by name Chinna Venkataramudu died unmarried and his share devolved upon his remaining brothers.

3.The plaintiffs' further submitted that they along with defendant No.1 to 8 succeeded the shares of Pullampalli Ramanagari Chinnappa and his three brothers as their legal heirs. The plaintiffs' further submitted that the plaintiffs' got 1/24th share in plaint schedule property, defendant No.1 to 3 got 1/12th share each, the defendant No.4 got 1/8th share in the plaint schedule property, defendant No.5 and 6 got 1/8th share each and the defendant No.7 and 8 got 1/4th joint share in the plaint schedule property. The plaintiffs' further submitted that the plaintiffs' along with the defendant No.1 to 8 are in joint possession and enjoyment of plaint schedule property.

4.The plaintiffs' further submitted that the defendant nos: 5 and 6 jointly alienated the property more than the extent of their share to defendant No.9 and the defendant No.9 was never in possession and enjoyment of plaint schedule property at any point of time. The plaintiffs' further submitted that the defendant

No.9 instituted a suit in O.S.No.279/2007 against the plaintiffs' and defendant no.3 herein for permanent injunction basing upon created documents.

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5.The plaintiffs' further submitted that the plaintiffs' demanding the defendant

No.1 to 8 for partition and separate possession of their 1/8th share in the plaint schedule property but the defendants are postponing the same.

6.Despite of receiving the summons, the defendants 1 to 4, 7 and 8 failed to appear before the court. Hence they were set exparte by this Court on 07.09.2012

7.Pursuant to the receipt of the summons, the defendants 5 and 6 appeared

before Court through their counsel on 07.09.2012. The defendants 5 and 6 despite

of their appearance failed to file their written statement even though sufficient time was granted and were set exparte by this court on 21.2.2013.

8.Pursuant to the receipt of summons, defendant No.9 appeared before the court and filed her written statement. The defendant No.9 in her written statement denied all the material allegations made by the plaintiffs. The defendant No.9 further denied the Genealogy, the boundaries of the plaint schedule property and the quantum of shares of the plaintiffs' and defendants 1 to 8 in the plaint schedule property.

9.The defendant No.9 further submitted that the Pullampallli Ramannagari

Ramanna got Ac.7.42 cents out of Ac.13.39 cents in total extent of Ac.26.78 cents in

Sy.No.102 of Pothulanagepalli village and his name is entered in Resettlement

Registrar. The defendant No.9 further submitted that after the death of said

Ramanna his son Ejanna succeeded the property and after his death his only son

Venkataramudu succeeded the same. The defendant No.9 further submitted that after death of the said Venkataramudu his widow Gangamma i.e. Defendant No.5 and his son Gangadri defendant No.6 succeeded the property and continued the possession.

10.The defendant No.9 further submitted that defendant No.5 and 6 sold the said property to the defendant No.9 under registered sale deed dated 24.08.1994 and inducted her in possession and enjoyment of the same. The defendant No.9 further submitted that her name is mutated in concerned revenue records and she has been in possession and enjoyment of the same and the plaintiffs' and defendants 1 to 8 were never in joint possession and enjoyment of the plaint schedule property.

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11.The defendant No.9 further submitted that the plaintiffs' who are not in possession and enjoyment of the property tried to interfere with her possession and enjoyment for which she instituted a suit in O.S.No.259/2007 and obtained temporary injunction against the plaintiffs'. The defendant No.9 further submitted that the plaintiffs' are not in possession and enjoyment of the property more than statutory period and they are not entitled for any relief as she is in exclusive possession and enjoyment of the suit property and perfected her right by way of adverse possession to the knowledge of the plaintiffs. The defendant No.9 further submitted that the plaintiffs' and defendant No.1 to 8 colluded with each other and filed the present suit to harass her mentally and to cause monetory loss by taking the advantage of her innocence and illiteracy and prays to dismiss the suit.

12.During the pendency of the suit and after filing her written statement the defendant No.9 died and her legal heirs i.e. defendant No.10 to 13 are brought on record as per orders dated 26.06.2015, passed in I.A.No.155/2015.

13.The defendants 10 to 13 adopted the written statement of defendant No.9.

14.During the pendency of the suit, the plaintiffs' No.1 died and his legal heirs i.e. plaintiff No.4 to 8 brought on record as per orders dated 17.10.2019 passed in

I.A.No.427/2017.

15.Basing upon the rival pleadings, the following issues have been settled for trial:-

1. Whether the plaint schedule property is joint family property of the plaintiffs and the defendants No.1 to 8?

2. Whether the plaintiffs' and the defendants 1 to 8 are in joint possession of the plaint schedule property?

3. Whether the plaintiffs' are entitled to partition of the plaint schedule property as prayed for?

4. To what relief?

16.In order to prove their case, the plaintiffs got examined plaintiff No.2 as PW.1 and got marked Ex.A1 and Ex.A2 and Ex.B.1 on behalf of the defendants. The plaintiffs' also got examined the Tahasildar, Dharmavaram as Court witness i.e.

CW.1 and got marked Ex.X1 and X2.

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17.To rebut the evidence of plaintiffs' and in support of the case, defendants 9 to 13 got examined defendant No.13 as DW.1 and got marked Ex.B2 to Ex.B20. The defendants 9 to 13 also got examined independent witness by name Kondireddy

Venkatarami Reddy as DW.2.

18.In order to prove their case that they are having share in the plaint schedule and they are entitled for partition and separate possession the plaintiffs' got examined plaintiff No.2 as PW.1 by filing of his affidavit in lieu of chief examination which is nothing but replica of plaint and got marked Ex.A1 and Ex.A2.

19.PW.1 in his evidence stated that plaint schedule property is the joint family property of the plaintiffs' and defendant No.1 to 8 and they are in joint possession and enjoyment of the plaint schedule property and the defendant No.5 and 6 alienated the property more than the extent of their share to defendant No.9 and hence they filed the present suit for their share in the plaint schedule property.

20.During his cross examination, PW.1 admitted that they have not filed any revenue records to show that they are in joint possession of plaint schedule property. PW.1 denied that Pullampalli Ramannagari Chinnappa and his brothers partitioned the plaint schedule property and they are in possession and enjoyment of their respective shares. PW.1 admitted that defendant No.5 and 6 sold an extent of Ac.7.46 cents to defendant No.9 in the year 1994 under a registered sale deed.

PW.1 further stated that he does not know that in the revenue records with regard to the land in Sy.No.102-D in an extent of Ac.1.49 cents stands in his name, Ac.1.39 cents in Sy.No.102-C stands in the name of plaintiffs' No.1 and Ac.1.38 cents in

Sy.No.102-E stands in the name of plaintiffs' No.3. PW.1 admitted the signature in

Ex.B1 and further admitted that they have stated in Ex.B.1 that they have been already issued pattadar pass books and title deeds in their names respectively to the extents mentioned in the said pass books and further requested to include the extra extents recorded in the name of defendant No.9.

21.PW.1 admitted that the value of the suit schedule property is increased but denied he filed the present suit due to hike of prices in order to grab the property of the defendant No.9.

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22.To rebut the evidence of the plaintiffs', the defendants 10 to 13 got examined defendant No.13 as DW.1 and got marked Ex.B2 to Ex.B20. DW.1 in his affidavit in lieu of chief examination re-iterated the contents of written statement of defendant

No.9 and further submitted that the land in Sy.No.102 in an extent of Ac.26.78 cents originally belonged to Pullampalli Ramanngari Chinnappa and his brothers and they jointly executed registered gift deed in favour of Midde Narasimhappa, S/o Adeppa to an extent of Ac.13.39 cents on 09.06.1958 and in the said gift deed the northern boundary is shown as exclusive property of Yerranna who is non other then the grandfather of the vendor of the defendant no:9.

23.DW.1 further stated that the said Yerranna is the son of Pullampalli

Ramannagari Ramanna and defendant No.5 and 6 are his legal heirs. DW.1 further stated that defendant No.9 purchased an extent of Ac.7.46 cents from defendant

No.5 and 6 under registered sale deed and after her death they succeeded the same and have been in possession and enjoyment of the said extents. DW.1 further stated that the plaintiffs' and defendant No.1 to 8 were never in possession and enjoyment of said extents.

24.During his cross examination, DW.1 stated that he did not file revenue records to show that the defendant No.5 and 6 are having Ac.13.39 cents. DW.1 further submitted that the plaintiffs' are also cultivating lands in suit schedule property. DW.1 further stated that he did not raise any objections to the remarks submitted by the Tahasildar i.e. Ex.A2 before Revenue Divisional Officer,

Dharmavaram. DW.1 denied that the plaintiffs are having 1/8th share in the plaint schedule property and the defendants 5 and 6 sold more than the extent of their share.

25.In support of their case, the defendants 10 to 14 got examined an independent witness, K.Venkaramireddy, as DW.2. DW.2 in his affidavit in lieu of chief examination stated on similar lines as DW.1. During his cross examination

DW.2 stated that he does not have knowledge about the extent of land on which the defendants 5 and 6 are having right in Sy.No.102 and whether the plaintiffs' has right in plaint schedule property or not.

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26. Issue No.1 and 2:

1. Whether the plaint schedule property is joint family property of the plaintiffs' and the defendant No.1 to 8?

2. Whether the plaintiffs' and the defendants 1 to 8 are in joint possession of the plaint schedule property?

As the both issues are inter-related and inter twined with each other, this

Court is of the view that the both issues have to be dealt together in order to avoid repetetion of the facts and re appreciation of the evidence.

27.The learned counsel for the plaintiffs' during his course of arguments submitted that the then Tahasildar, Dharmavaram after due enquiry sent his remarks i.e. Ex.A2 to the Revenue Divisional Officer, Dharmavaram i.e. Ex.A2 observing that the suit schedule property is joint family property of Pollampalli

Ramannagri Chinnappa and his brothers as per diglot and they constituted as joint family and transferred an extent of Ac.13.39 cents jointly in the year 1958. The learned counsel further submitted that as per the said observation and as per entries of diglot, it is clearly established that Pullampalli Ramannagari Chinnppa and his brothers constituted joint family and had been in joint possession and enjoyment of plaint schedule property.

28.The learned counsel further submitted that after their demise the plaintiffs' and defendants 1 to 8 constituted joint family, the plaint schedule property is joint family property and they are in joint possession of the same which is established through entries in the adangals for the fasli 1405 i.e. for the year 1995 which clearly shows that the plaint schedule property is the joint family property of the plaintiffs' and the defendants 1 to 8 and they are in joint possession of the same.

29.Per contra, the learned counsel for the defendant No.9 to 13 during his course of arguments submitted that the defendant No.9 to 13 are not disputing the plaint schedule property belonged to Pullampalli Ramannagari Chinnappa and his brothers and they jointly transferred Ac.13.39 cents. The learned counsel for the defendant further submitted that a careful perusal of entries in the fasli 1405 clearly shows that the defendant No.9 i.e. M.Venkatalakshmamma is also in possession and enjoyment of Ac.13.39 cents in Sy.No.102. The learned counsel for the defendant further submitted that the plaintiffs' preferred an appeal before Revenue Divisional

Officer, Dharmavaram to cancel the pattadar pass book issued in favour of

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defendant No.9 in an extent of Ac.7.46 cents in the suit schedule property. The learned counsel for the defendant further submitted that the than Tahasildar sent remarks to the Revenue Divisional Officer, Dharmavaram basing upon the statements given by the plaintiffs to the Mandal Revenue Inspector.

30.The learned counsel for the defendant further submitted that the plaintiffs'

No.2 admitted his signature in the said statements which is marked as Ex.B1 . The learned counsel for the defendants further submitted that the plaintiff No.1 to 3 admitted that they were issued pattadar pass books and title deeds with regard to lands in Sy.No.102, 102-C, 102-D to an extents Ac.1.83 cents, Ac.1.39 cents and

Ac.1.49 cents respectively which is admitted by the PW1 himself in his evidence.

The learned counsel for the defendant further submitted that the said admission clearly shows that the plaintiffs and the other defendants are not joint possession and enjoyment of the plaint schedule property and the same is established through

Ex.B11 to Ex.B19.

31.The learned counsel for the defendant further submitted that the entries in revenue records clearly shows that the plaintiffs' and the defendants 1 to 8 are not in joint possession and enjoyment of the plaint schedule property and they are in possession and enjoyment of the shares mentioned in Ex.B11 to Ex.B19 which are admitted by the plaintiffs' themselves. The learned counsel further submitted that the entries in revenue records are not rebutted by the plaintiffs and they not even deined about the said entries and thus the entries are correct and their authenticity cannot be doubted. The learned counsel relied upon the judgment of Hon’ble High

Court of Andhra Pradesh in Chanumolu Nirmala and others Vs. Chanumolu Indira

Devi , 1994(1) ALT 673 (D.B)

32. The learned counsel for the defendant further submitted that the plaintiffs' did not adduce any evidence to show that the plaintiffs' and the defendant No.1 to 8 constitute joint family and the plaint schedule property is joint family property. But as per the evidence on record clearly shows that the joint family is not in existence and the plaintiffs' and defendants 1 to 8 are living separately and they are not in joint possession of the property.

33.As per pleadings, evidence on record and as per submissions of learned counsels for the plaintiffs' and the defendants 9 to 13, it is an admitted fact that the

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property in Sy.No.102 in an extent of Ac.26.78 cents in Polampalli village belonged to Polampalli Ramannagari Chinnappa and his brothers. It is also an admitted fact that they gifted land in an extent of Ac.13.39 cents out of Ac.26.78 cents to Mitta

Narasimhappa under registered gift deed in the year 1958. The relationship between the plaintiffs, defendant No.1 to 8 is not in dispute and that they are legal heirs of Polampalli Ramannagari Chinnappa and his brothers is also not in dispute. It is also an admitted fact that the defendant No.9 purchased Ac.7.46 cents in suit schedule property from defendants 5 and 6 under registered sale deed.

34.A perusal of Ex.B8 clearly shows that for the Faslis 1405, 1407, 1409, 1411 and 1412 there are no entries with regard to the extents of lands are in possession and enjoyment of persons in possession and enjoyment with respect to the land in

Sy.No.102. But whereas with regard to the entries for the Faslies 1411 and 1412 clearly shows that the persons in possession and enjoyment were issued pattadar pass books and title deeds. As per the entries for the fasli 1413 the extents of enjoydars were entered. As per the said entries plaintiffs' No.3 is in possession of

Ac.1.38 cents plaintiffs' No.2 is in possession and enjoyment of Ac.1.39 cents.

Defendant No.4 is in possession of Ac.1.39 cents and defendant No.9 is in possession of Ac7.40 Cts..

35. Further the plaintiffs relied upon the Adagals for the Fasli 1405 which is part and parcel of Ex.X1 which is also Ex.B8 and acknowledged the said entires to prove that the plaint schedule propriety is in joint possession of the plaintiff’s and defendant No. 1 to 8, cannot fault the entries in very same document for the Fasili 1413.

36.At this juncture the learned counsel for the plaintiffs’ submitted that as per evidence of Tahsildhar, Dharmavaram as C.W.1, there is no record available to show that Sy.No.102 is sub divided and hence the entries from the faslies 1411 has no value and the plaintiffs and defendant No.1 to 8 are in joint possession of the plaint schedule property. The said submissions are not legally tenable because the plaintiff

No.2 admitted that he preferred appeal before Revenue Divisional officer,

Dharmavaram to cancel the entries in pattadar pass books for land in Sy.No 102 in an extent of Ac7.46 cents and to Ac 3.00 cts and to add remaining extent to their pass books. Thus the plaintiff admitted that they were issued pattadhar pass books

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and title deeds with regard to the land in Sy.no 102 to the extents mentioned in their pass books and the survey number is subdivided.

37.As per provisions of Andhra Pradesh Pattadar Pass book Act, 1971, the pattdharpass books and title deeds will be issued to the persons who are in possession and enjoyment of the respective lands and the names of the said persons will mutated in the concerned revenue records.

38.The plaintiffs did not file their pattadar pass books before this court, but the defendant No.10 to 13 filed the certified copies of the same and the plaintiffs not disputed the said copies and the 1-B Register and the Adaganls stand in the name of the plaintiffs.

39.As per the provisions of Andhra Pradesh Pattdhar Pass book Act,1971 and as per the law laid by the Hon’ble High Court of Andhra Pradesh in Chanumolu Nirmala and others Vs. Chanumolu Indira Devi, 1994(1) ALT 673 (D.B) relied by the defendant No.10 to 13 , the entries are genuine.

40.The plaintiffs' through P.W.1 admitted that they did not file any documents to prove that the plaintiffs and defendant No.1 to 8 constitute a joint family and the plaint schedule property is in joint possession and enjoyment. At this juncture it is pertinent to note the observations of Tahsildhar, Dharmavaram in Ex.A2 who held that the plaint schedule property is the joint family property of Pullampalli

Ramangari Chinappa and his brothers and they are in joint possession of the same, itself is not sufficient to prove that the plaint schedule property is the joint family property of the plaintiffs and defendant No.1 to 8 with out adducing any evidence, as it is settled principle of law that mere pleadings without evidence is of no value.

41.Further the entries in the Adangal clearly shows that the plaint schedule property was not in joint possession and enjoyment of plaintiffs' and defendant No.1 to 8.

42.In view of foregoing discussion, it is evident that the plaintiffs have failed to prove that they along with defendants 1 to 8 constitute joint family and they are in joint possession and enjoyment of plaint schedule property as it is a joint family property. This issue is answered against the plaintiffs and in favour of defendant

No.10 to 13.

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43.Issue No.3:-

3. Whether the plaintiffs' are entitled to partition of the plaint schedule property as prayed for?

As per plaint schedule the plaintiffs’ filed the present suit for partition of the property in an extent of 13.39 cents out of Ac.26.78 cents in Sy.No.102. The plaintiffs claims 1/4th share in plaint schedule property as the legal heirs Pullampalli

Ramannagari Venkathapathi, whose is the one of the owner of the plaint schedule property as per digclot.

44.The learned counsel for the plaintiffs’ during course of arguments submitted that the defendant No.5 and 6 also got 1/4th share in plaint schedule property i.e.,

Ac.3.34 cents, but they sold an extent of Ac07.42 cents to the defendant No.9. The learned counsel for the plaintiffs’ further submitted that the defendants 5 and 6 sold more extent of land than their share, which includes the share of the plaintiffs. The learned counsel further submitted that the defendants 9 to 13 relied upon the

Northern boundary in the gift deed dtd 09.06.1958, which is shown as half of the share of Era Chennappa. The learned counsel further submitted that if said boundary is taken into consideration, the said gift deed is executed for an extent of

Ac.13.39 cts out of Ac 27.68 Cts in Sy.No.102, which means half of the extent, then the none of the plaintiffs or defendant No.1 to 4, 7 and 8 will have any share in the property.

45. The learned counsel further submitted that in the sale deed i.e. Ex.B3 executed by the defendant No.5 and 6 in favour of defendant No.9, the northern boundary is shown as land of Pullampalli Pothanna i.e., plaintiff no:1, thus the plaintiffs and defendants 1 to 8 are having share in the property and they are in joint possession of the same. The learned counsel further submitted that the

Tahsildhar, Dharmavaram in Ex.A.2 observed that the defendants 5 and 6 sold more extent of land i.e., Ac7.42 cts to defendant no:9 instead of Ac. 3.42 Cts. The learned counsel further submitted that thus the plaintiffs amply proved that they are having share in plaint schedule property and prayed to decree the suit.

46.Per contra, the learned counsel for the defendant submitted that the plaintiffs and defendant No.4 admitted before the Mandal Revenue Inspector that they are in possession and enjoyment of property in Sy.No.102 to the extent of the properties

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mentioned in their pass books. The learned counsel further submitted that basing upon the enqiry and the statements recorded by the Mandal revenue Inspector the

Tahsildhar, Dharmavaram sent the remarks to Revenue Divisional Officer under

Ex.A.2 which is part and parcel of Ex.B1 and Ex.X.1.

47. The learned counsel further submitted that the Tahsildhar again sent remarks to Revenue Divisional Officer, Dharmavaram stating that the defendants 5 and 6 have right to sell the property covered under sale deed executed by them in favour of Defendant no:9.

48.The learned counsel further submitted that the plaintiffs are having knowledge about the execution of sale deed in favour of defendant no:9 from the year 1994 itself, they ought to have file the suit with in 12 years i.e., on or before the year 2006. The learned counsel further submitted that the defendant no:9 perfected her right by way of adverse possession also. The learned counsel further submitted that the defendant No.9 filed suit for permanent injunction against the plaintiffs in O.S.No.279/2007 before this Court and obtained decree of permanent injunction on merits. The learned counsel further submitted that the plaintiffs’ remained silent till 2012 and filed the present case beyond limitation to grab the property of defendant No.9 and prayed to dismiss the suit. The learned counsel relied upon the judgments of Hon’ble High Court of Andhra Pradesh in Yarlagadda

Venkakka Choudary(died) and another Vs Daggubati Lakshmi Narayana (died) and others 1996(1) ALT 877 and T.Bhopal Reddy and another Vs Smt. K.R.Lakshmi Bai (died) and others 2007 (3) ALT 760 in support of his contention.

49.As discussed earlier it is an admitted fact that the plaint schedule property is the property of Pullampalli Ramannagari Chinappa and his brothers and the plaintiffs and defendant No.1 to 8 are their legal heirs and succeeded the same. It is also an admitted fact that the plaintiffs were issued pattadhar pass books and title deeds and their names were mutated in concerned revenue records to extent mentioned in the name of the plaintiffs, i.e., Pothanna is in possession and enjoyment of land in an extent of Ac.1.39 Cts in Sy.No.102-C, Narayana Swamy is in possession and enjoyment of land in an extent of Ac.1.39 Cts in Sy.No.102-B,

Venkataramudu is in possession and enjoyment of land in an extent of Ac.1.38 Cts

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in Sy.No.102-E. Thus the plaintiffs are in possession and enjoyment of land in an extent of Ac.4.16 cts in Sy.No.102.

50.Further it is an admitted fact that the northern boundary shown in sale deed executed by the defendants 5 and 6 in favour of the defendant No.9 i.e. Ex.B3, is shown as land of Pullampalli Pothanna, which clearly shows that the plaintiffs and the others are in possession and enjoyment of property in specific extents and boundaries.

51.Further the plaintiffs relied upon the remarks, i.e., Ex.A.2., sent by the

Tahsildhar Dharmavaram to Revenue Divisional Officer, Dharmavaram pursuant to the appeal preferred by the plaintiffs which is part and parcel of the Ex.B.1 which is also Ex.X.1 cannot take precedence to the statements made by the plaintiffs which are admitted by the plaintiff No.2 as P.W.1 that they were issued pattadhar passbooks to the said extents. Thus the plaintiffs are already in possession and enjoyment of their of land .

52.The main contention of the plaintiffs is that the defendants 5 and 6 sold the extent more than their share i.e., Ac7.42 cts instead of Ac3.34 Cts which includes their share also. However, even as per the admission of PW.1, the plaintiffs are in possession and enjoyment of Ac.04.16 cents of the suit schedule property. It is relevant to note that the plaintiffs claimed in their pleadings that they are entitled for land in an extent of Ac.03.35 cents in plaint schedule property i.e. 1/4th share, while admittedly they are in possession and enjoyment of more extent of land.

53. The Judgments of Hon’ble High Court of Andhra Pradesh in Yarlagadda

Venkakka Choudary(died) and another Vs Daggubati Lakshmi Narayana (died) and others 1996(1) ALT 877 and T.Bhopal Reddy and another Vs Smt. K.R.Lakshmi Bai (died) and others 2007 (3) ALT 760 relied by learned counsel for the defendants are not applicable to the facts of present case and they cannot be made applicable to the present case in hand.

54.In view of above facts, it is evident that the plaintiffs are already in possession and enjoyment of plaint schedule property with specific extents and boundaries, as such they are not entitled to claim partition and separate possession

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in plaint schedule property. Accordingly, this issue is answered against the plaintiffs and in favour of the defendants.

55.Issue No.4:-

4. To what relief?

In view of foregoing discussion with regard to issue No.1 to 3 as the plaintiffs failed to prove that plaint schedule property is joint family property and they are in joint possession and enjoyment of the same along with defendant No.1 to 8 and they are entitled for partition and separate possession of plaint schedule property.

Thus the plaintiffs are not entitled for the relief sought for in the plaint.

56.In the result, the suit is dismissed with costs. The plaintiffs do bear their own costs.

Directly typed to my dictation by the Stenographer-III, corrected and

pronounced by me in open Court, on this the 4th day of May, 2020.

Sd/- Smt P.GAYATHRI,

Prl. Junior Civil Judge, Dharmavaram

Appendix of evidence

Witnesses examined for

Plaintiffs': Defendant:

PW.1:- P.NarayanaswamyDW.1:- Nara Ramachandra Reddy DW.2:- K.Venkatarami Reddy,

CW.1:- C.Hari Prasad/Tahsildar,DMM

Exhibits marked for plaintiffs

Ex.A1:- Genealogy.

Ex.A2:- Attested Copies of Parawise remarks in R.C (B).49/2017 submitted by the Tahsildar, Dharmavaram to the Revenue Divisional Officer, Dharmavaram.

Exhibits marked for Defendants

Ex.B1:- Certified copy of the entire report of the Tahsildar to Revenue Divisional Officer, Dharmavaram in RC.No.44/2017, dated 16.03.2017 (Marked through PW.1).

Ex.B2:- Certified copy of the gift deed, dated 09.06.1958.

Ex.B3:- Certified copy of the Register Sale Deed executed in favour of the defendant No.9, dated 24.08.1994.

Ex.B4:- Certified copy of the 1-B Register

Ex.B5:- Certified copy of the Pass Book issued in favour of the defendant No.9,

dated 20.03.1995.

Ex.B6:- Certified copy of the Bank Pass Book issued in favour of the defendant No.9,

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Ex.B7:- Certified copy of the Adangals.

Ex.B8:- Certified copy of the notice issued U/O 12 Rule 9 CPC,

Ex.B9:- Certified copy of the Orders passed in I.A.No.629/2007 in O.S.No.259/2017 on the file of the Hon’ble Junior Civil Judge, Dharmavaram, dated 25.07.2008.

Ex.B10:- Certified copy of the Orders passed in CMA.No.07/2009 on the file of

Hon’ble Senior Civil Judge at Penukonda, dated 08.06.2011.

Ex.B11:- Certified copy of the Pattadar Pass Book issued in favour of the 1st plaintiff,

Ex.B12:- Certified copy of the 1-B Register issued in favour of the 1st plaintiff,

Ex.B13:- Certified copy of theAdangals for the fasli 1426 issued in favour of the 1st plaintiff,

Ex.B14:- Certified copy of the pattadar pass book issued in favour of the 2nd plaintiff,

Ex.B15:- Certified copy of the 1-B Register issued in favour of the 2nd plaintiff,

Ex.B16:- Certified copy of the Adangals for the fasli 1426 issued in favour of the 2nd plaintiff,

Ex.B17:- Certified copy of the Pattadar Pass Book issued in favour of the 3rd plaintiff,

Ex.B18:- Certified copy of the 1-B Register issued in favour of the 3rd plaintiff,

Ex.B19:- Certified copy of the Adangals for the fasli 1426 issued in favour of the 3rd plaintiff,

Ex.B20:- Information issued by the RDO to the informa by name N.Bhaskar Reddy Vide L.Dis.No.2094/2017 in 66 pages, dated 08.11.2017.

Exhibits marked for Court Witness

Ex.X1:- Para-Vise Remarks of Tahasildar in R.C.No.44/2017 (B), dated 16.03.2017.

Ex.X2:- Report submitted to the Revenue Divisional Officer, Dharmavaram in

R.C.No.44/2017 (B) dated 21.10.2017.

Id/- P.G., P.J.C.J. DMM

1

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS:

DHARMAVARAM.

Present: Smt P.Gayathri, Judicial Magistrate of I Class, Dharmavaram FAC Additional Judicial Magistrate of I Class, Dharmavaram Monday, the 23rd day of April, 2018

C.C.494/2015

Between: Forest Range Officer, Ananthapuramu. … Complainant.

And

A.Sreenivasulu S/o A.Venkatesh, aged 42 years R/o Nandi village and mandal, Kadapa district. …Accused.

This case came up for final hearing before me on 20-04-2018 in the presence of Assistant Public Prosecutor for the State and of Sri D.Visweswara Rao, Sri D.Vijaya Raghavendra, Advocates for the accused and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

The Forest Range Officer, Ananthapuramu range filed charge sheet against the accused in O.R.No.52/2014-2015 of Ananthapuramu Range for the offence punishable U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red

Sandals and Sandal Wood Transit Rules 1969.

2.The case of the prosecution in brief is that the Red Sanders Mobile

Party while checking the vehicles near Toll Plaza, Maruru of Ananthapuramu district a vehicle TATA Pickup 207 bearing No.AP-03-X-2793 passed through Maruru Toll plaza towards Bangalore on 03-11-2014. At that time, the Mobile party tried to stop the said vehicle, but the said vehicle did not stop and the Red Sanders Mobile

Party chased the vehicle and stopped near Parvathadevarapalli village. The mobile party able to caught one accused and another accused ran away. The Red Sanders

Mobile Party found 11 numbers red sander logs which were hidden underneath the bricks, then the mobile party seized the 11 red sandal logs along with crime vehicle bearing No.AP-03-X-2793 and arrested the accused A.Sreenivasulu under cover of 2 mahazar. Basing on the seizure mahazar a case in O.R.No.52/2014-15 of

Ananthapuramu range was registered for the offences punishable U/sec.29(2)(b) of

AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal Wood Transit Rules 1969.

3. After investigation, Forest Range Officer filed charge sheet on11-8-2015 against the accused for offences punishable U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal Wood Transit Rules 1969.

4.This court took cognizance of the offences on 31-12-2015 for the offence U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and

Sandal Wood Transit Rules 1969 against accused and the case is numbered as

C.C.494/2015 under section 190(1)(b) Cr.P.C. Copies of documents were supplied to the accused as per provisions of section 207 Cr.P.C.

5.Accused examined under Section 251 Cr.P.C. Accusation made against the accused for the offence punishable U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal Wood Transit Rules 1969, read over and explained to him in Telugu. He pleaded not guilty and claimed to be tried.

6.After completion of the evidence for prosecution, the accused was examined U/Sec. 313 Cr.P.C. and all incriminating evidence available against him is read over and explained to them in Telugu for which he stood by the denial and refuted the correctness of incriminating circumstances with in which he was confuted. However, the accused did not let in any evidence, oral or documentary, in his defence.

7.During trial, on behalf of prosecution, PWs.1 to 9 were examined and

Exs.P1 to P10 were marked. However, the accused did not let in any evidence, oral or documentary, in his defence.

8. Heard on both learned counsel.

9.Now the points for determination is:

1. Whether the accused contravented the provisions of Section 29(2)(b) of

AP Forest Act 1967 there by committed an offence ?

3

2. Whether the accused contravented the provisions of Rule 3 of A.P. Red

Sandals and Sandal Wood Transit Rules 1969 there by committed an

offence?

3. Whether prosecution has able to prove the guilt of the accused for the

offences punishable U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of

A.P. Red Sandals and Sandal Wood Transit rules 1969 beyond all

reasonable doubts?

10.The case of the prosecution in brief is that the Red Sanders Mobile Party while checking the vehicles near Toll Plaza, Maruru of Ananthapuramu district a vehicle TATA Pickup 207 bearing No.AP-03-X-2793 passed through Maruru Toll plaza towards Bangalore on 03-11-2014. At that time, the Mobile party tried to stop the said vehicle, but the said vehicle did not stop and the Red Sanders Mobile Party chased the vehicle and stopped near Parvathadevarapalli village. The mobile party able to caught one accused and another accused ran away. The Red Sanders

Mobile Party found 11 numbers red sander logs which were hidden underneath the bricks, then the mobile party seized the 11 red sandal logs along with crime vehicle bearing No.AP-03-X-2793 and arrested the accused A.Sreenivasulu under cover of mahazar.

11.To bring home the charges against the accused the prosecution examined PWs.1 to 9 and marked Exs.P1 to P10.

12.P.W.1 C.Pullaiah, Forest Range Officer who seized the red sandal logs along with crime vehicle and arrested the accused in his chief examination deposed that on 03-11-2014 he himself along with L.Ws.2 and 3 conducted vehicle check at

Maruru Toll plaza, at that time a TATA 207 vehicle bearing No.AP-03-X-2793 did not stop as per their instructions and moved away with high speed. P.W.1 further deposed that they chased the said vehicle and the said vehicle was stopped at

Parvatadevarapalli. P.W.1 further deposed that he caught the driver of the vehicle and found 11 red sandal logs in the crime vehicle and they seized the same under cover of mahazar in the presence of mediators and then he handed over crime vehicle, red sandals and the accused to L.W.5 i.e. P.W.2 under C-Form marked as 4

Ex.P1. In his cross examination P.W.1 deposed that the seizure was made by himself and P.W.3 and 4 only and he do not know the mediators in seizure panchanama and belongs to which village either Maruru or Parvathadevarapalli.

P.W.1 further deposed that his role is confined to seizing the red sandals, crime vehicle and arresting the accused.

13.PW-2 Shanawaz, Forest Beat Officer of Ramagiri beat deposed that on 03-11-2014 at 2.00 pm he along with P.W.1 went to the scene of offence as per the phone call from FRO, Ananthapuram and found the crime vehicle and 11 red sandales logs hidden under the bricks in the crime vehicle. The panchanama prepared by mobile party is marked as Ex.P2, Form A, Form-B marked as Ex.P3 and

P4 and he recorded the statement of accused marked as Ex.P5 and then he took custody of accused and seized sandle logs and crime vehicle. P.W.2 further deposed that he prepared list of seized red sandle blocks marked as Ex.P6 and then he produced the accused before the court for judicial remand. In his cross examination P.W.2 stated that prior to their arrival panchanama was recorded and he do not know whose presence panchanama was recorded. P.W.2 further deposed that under Ex.P1 the custody of accused along with seized sandals and crime vehicle handed over to him. In his cross examination P.W.2 further deposed that the owner of the crime vehicle was not arrested. P.W.2 further deposed that the mobile party seized red sandals and arrested the accused.

14. P.W.3 S.Chandra, Forest Beat Officer deposed that P.W.1, L.W.3, 4 and 6 are the mobile party and went for patrolling near Maruru toll plaza on 03.11.2014. P.W.3 further deposed that the mobile party arrested and seized red sandals along with crime vehicle and handed over to Ananthapuramu Forest Range

Officer in the presence of mediators. In his cross examination P.W.3 admitted that he did not enquire about the details of the owner of the seized vehicle about RC of the vehicle.

15.P.W.4 B.Bhaskar deposed that he assisted P.Ws.1 to 3, L.W.5 and

L.W.6 on 3-11-2014 at Maruru toll plaza, they found 11 red sandal blocks in the crime vehicle and nabbed the accused out of two persons who tried to ran away 5 and seized the crime vehicle. P.W.4 in his cross examination stated that he do not know the details of owner of crime vehicle and the residence as mentioned in panchanama and further the details of Ex.P2 i.e. panchanama. P.W.4 further deposed that the do not know the contents of statement of the accused.

16.P.W.5 K.Ramesh Babu deposed that he conducted mobile check at

Maruru toll plaza on 3-11-2014 and the crime vehicle did not stop but speed up by observing them. P.W.5 further deposed that on observing them the persons in the crime vehicle jumped from the running vehicle and ran away in two different directions and P.W.5 stopped the crime vehicle and the remaining mobile party chased the accused who ran away but able to apprehend the accused only. P.W.5 further deposed that he observed 11 red sandal covered with tarpaulin. In his cross examination P.W.5 deposed that P.W.1 taken the signatures of independent witnesses at Parvathadevarapalli village.

17.P.W.6 G.Lakshminarayana, P.W.7 P.Kesava Reddy, P.W.8 C.Ramudu,

P.W.9 M.Chenna Reddy who are mediators signed in the panchanama under which red sandals seized along with crime vehicle and arrest of accused was made did not support the case of prosecution and further deposed that no seizure and arrest was made in their presence and they signed on papers without knowing its contents.

The learned Assistant Public Prosecutor treated the P.Ws.6 to 9 as hostile as they did not support the case of prosecution and cross examined them with the permission of the court but did not able to elicit any evidence in support of prosecution except marking their signatures in the mahazar as Exs.P7 to 10.

Point No: 1 & 2:-

18.As both points relates to transport of rand sandalwood, both points are answered jointly to avoid re-appreciation of evidence.

The Accused was tried for the offence punishable underSection 29(2)

(b) of AP Forest Act 1967 which reads as under:

section 29: Power to make rules to regulate the transit possession of timber

and other forest produce:-The Government may make rules to regulate-

6

(2)(b) In particular and without prejudice to the generality of the

foregoing power, such rules may, prohibit the import or export or moving

of such timber or other forest produce without a permit from a forest

officer duly authorized to issue the same, or otherwise than in accordance

with the conditions of such permit, or in the case of timber,without a

transit-mark affixed by such officer;

19.Rule 3 of A.P. Red Sandals and Sandal Wood Transit rules 1969 reads as follows:- Conditions for Import, Export and Movement : – No person shall import sandalwood, sandalwood chips, sandalwood powder or red-sanders wood, red- sanders wood chips, red-sanders wood powder into, or export sandalwood chips, sandalwood powder or red-sanders wood, red-sander wood chips, red-sanders wood powder from, or move sandalwood or red-sanders wood within, any place in the whole of the State, unless such sandalwood or red-sanders wood is accompanied by a permit prescribed in Rule 4.

No piece of the wood and other materials specified in sub-rule (1) or bags containing saw dust or chips of such wood shall be transported unless they bear and authorized marking or seal of the Government as provided in Rule 7.

20.As per evidence of P.W.1, P.W.1 along with P.Ws.3 and 4 conducted patrolling duty on 03-11-2014 at Maruru toll plaza and further they handed over 11 red sandals along with crime vehicle and also the accused to L.W.5 i.e. P.W.2.

P.W.2 in his evidence categorically deposed that himself and P.W.1 went to the scene of offence as per the information received by them on 03-11-2014. P.W.1 further deposed that prior to their arrival panchanama i.e. P2 is already recorded.

21. P.W.3 in cross examination did not depose who prepared the panchanama but in his chief examination deposed that himself along with PW1, 4, 5 and L.W.6 conducted raids at Maruru Toll plaza on 03-11-2014. P.W.4 in his chief examination deposed that on 03-11-2014 he accompanied P.Ws.1 to 3 and 5 and

L.W.6 at Maruru toll plaza. P.W.4 deposed that he do not know the contents of

Ex.P2 but he signed on the same. P.W.5 deposed that on 03-11-2014 P.Ws.1 to 4 himself and L.W.6 conducted mobile check at Maruru Toll plaza. P.W.5 further 7 deposed that the, confession, arrest and seizure mahazar i.e. Ex.P2 was prepared by P.W.1 at the scene of offence.

22.As per the evidence of P.W.1, P.Ws.3 and 4 attended patrolling duty and chased crime vehicle. But as per evidence of P.W.2 he along with P.W.1 went to the scene of offence i.e. Parvathadevarapalli village after receiving information on the date of incident at 2 p.m. P.Ws.3 to 5 categorically deposed that P.W.2 also accompanied them at the time of vehicle check. The independent witnesses did not support the prosecution case about seizure and arrest of accused in their presence.

Even if the evidence of independent witnesses not taken into consideration, the evidence of P.W.1 to 5 did not corroborating with each other relating to vehicle check by the persons which casts a serious doubt against the case of the prosecution and relating to the arrest of the accused. Further the prosecution unable to investigate to whom the crime vehicle belongs to and also failed to arrest the other absconded person. Mere forwarding the accused to judicial custody cannot be basis to prove the guilt of the accused without any supporting, cogent and reliable evidence.

23.The alleged confession of accused which was alleged to be made in the front of mediators P.W’s. 6 to 9 on interrogation made by P.W.1, did not supported the case of prosecution but further deposed that they signed on the confessional mahazar at the request of the forest officials and no arrest, seizure were made in their presence. Further P.W.5 in his evidence categorically deposed that P.W.1 taken the signatures of P.Ws. 6 to 9 at Parvathadevarapalli village.

24.As per above discussion this Court holds that the prosecution is not able to prove that the accused was transporting the red sandal wood in the crime vehicle and as per the evidence of prosecution witnesses there arises serious doubt relating to drafting of mahazar under which seizure, arrest were made. Further the alleged confession, Seizure and arrest mahazar is not inspiring confidence to arrive that the accused committed offence ,as the Mediators did not supported the case of prosecution, the said confession is of no use, as entire case of prosecution rested upon the confessional seizure cum arrest Mahazar.

8

Point No.3:

25.Unlike the other criminal cases the presence of mediators or independent witness is not necessary at the time of arrest and seizure under the provisions of Forest Act 1967. It is the duty of the persons to prove and to explain how they are in possession of red sandal wood. It is also not the duty of prosecution to discharge its burden by producing proper evidence beyond reasonable doubts to prove the guilt of the accused under the provisions of Forest

Act but the prosecution has to inspire confidence that the accused involved in the offence under the purview of AP Forest Act and committed the offence punishable

U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal

Wood Transit rules 1969.

26.The division bench of the Hon’ble Supreme Court Of India in

Govindaraju @ Govinda vs State By Sriramapuram P.S. & Anr in CRIMINAL APPEAL

NO. 984 OF 2007on 15 March, 2012 pleased to observe that “ ” It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case.

It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.”

27.As per the observation of the Hon’ble Apex Court evidence of investigating officer is not supported by the independent witness is not fatal to prosecution case. However as the entire case of prosecution is rests on the alleged confessional statement of the Accused is of no valve because none of the mediators supported the case of prosecution which raises doubts about the possession of red sandals by the accused as alleged.

28.As per the above discussion the prosecution is unable to inspire confidence that the accused involved in the alleged offence punishable under 9

Section 29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal

Wood Transit rules 1969 and at most arrest of accused and seizure of crime vehicle along with 11 red sandal logs raising doubts and also the presence of accused at the scene of offence on the day of incident is also not established by reliable evidence due to discrepancies in prosecution evidence. Therefore in view of the above discussion, this court hold that the prosecution has failed to prove the guilt of the accused for the offence punishable U/sec.29(2)(b) of AP Forest Act 1967 and

Rule 3 of A.P. Red Sandals and Sandal Wood Transit rules 1969. Hence the accused are entitled for benefit of doubt.

29.In the result, accused is found not guilty for the offences punishable

U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal

Wood Transit Rules 1969 and he is acquitted U/s 255(1) Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for his appearance before the Honourable appellate court as and when directed.

Dictated to the Stenographer transcribed by him, pronounced and

corrected by me in open Court, on this the 23rd day of April, 2018.

Judicial Magistrate of I Class,

Dharmavaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: P.W.1 : C.Pullaiah -None- P.W.2 : I.Z.Shanawaz P.W.3 : S.Chandra P.W.4 : B.Bhaskar P.W.5 : K.Ramesh Babu P.W.6 : G.Lakshminarayana P.W.7 : P.Kesava Reddy P.W.8 : C.Ramudu P.W.9 : M.Chenna Reddy.

10

EXHIBITS MARKED FOR PROSECUTION

Ex.P1 : Form-C Ex.P2 : Seizure and arrest mahazar Ex.P3 : Form-A Preliminary offence report Ex.P4 : Form-B Ex.P5 : Statement of accused Ex.P6 : List of seized red sandal blogs Ex.P7 : Signature of P.W.6 in seizure mahazar Ex.P2 Ex.P8 : Signature of P.W.7 in seizure mahazar Ex.P2 Ex.P9 : Signature of P.W.8 in seizure mahazar Ex.P2 Ex.P10: Signature of P.W.9 in seizure mahazar Ex.P2.

EXHIBITS MARKED FOR DEFENCE

Ex.D1 : Attested copy of invoice.

M.Os. MARKED

-NIL-

Ild/-P.G J.M.F.C.

// True copy //

Judicial Magistrate of I Class,

Dharmavaram.

11

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Calendar cases tried by the Judl. Magistrate of First Class, Dharmavaram.

Date of

OffenceReportApprehension Released on Commence-Close of Sentence of Accusedbailment of trialtrial 17.04.2018 23.04.2018 03/11/1403/11/1403/11/1413.11.201403/04/17

Judgment in C.C.No.494/2015 on the file of Judl. Magistrate of First Class, Dharmavaram.

Complainant :: Forest Range Officer, Ananthapuramu.

Cr.No:52/2014-2015

Sl. Name of the AgeFather’s NameCallingReligionResidenceMandal No.Accused 1A.Sreenivasulu42 A.VenkateshDriverHinduNandiNandi years Kadapa dist.

Offence :- U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal Wood Transit rules 1969

Finding :- Accused is found not guilty

Sentence :- In the result, accused is found not guilty for the offences punishable

U/sec.29(2)(b) of AP Forest Act 1967 and Rule 3 of A.P. Red Sandals and Sandal Wood Transit Rules 1969 and he is acquitted U/s 255(1) Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for his appearance before the Honourable Appellate Court as and when directed.

JUDL.MAGISTRATE OF FIRST CLASS,

DHARMAVARAM

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu

Dis No. Dt.

True copy // // True copy //

Judicial Magistrate of I Class,

12

Dharmavaram.

C.C.No.503 of 2019, dt.24.03.2020 JFCM, DMM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

DHARMAVARAM.

Present: Smt. P.Gayathri,

Judicial Magistrate of Ist Class, Dharmavaram.

Tuesday, this the 24th day of March, 2020

C.C.No.503/2019

Between:- State rep. by Sub-Inspector of Police, Dharmavaram Rural P.S.…Complainant

And

1. Kondareddi Peddi Reddy, age 40 years, S/o late K.Peddi Redy, Pothulanagepalli village, Dharmavaram Mandal, Driver cum owner of tractor bearing No.AP02.W.9721 and Trailer No. AP02.W.9722.

2. JIndalavari Peddi Reddy, age 40 years, S/o I.Narayana Reddy, Pothulanagepalli village, Dharmavaram Mandal, Driver cum owner of tractor bearing No.AP02.BR.5849 and Trailer No.AP02-TH-3707.

3. Kambam Narayana Reddy, age 38 years, S/o late Narasi Reddy, Pothulanagepalli village, Dharmavram mandal, driver cum owner of tractor bearing No.AP02.TC.3132 and trailer No.AP02.TC.2405.

4. Kambam Peddi Reddy, age 40 years, S/o late Narasi Reddy, Pothulanagepalli village, Dharmavaram Mandal, driver cum owner of tractor bearing No.AP02-TE-0479 and trailer No.AP02.TE.0497.

5. Nareddula Pothulaiah, age 42 years, S/o N.Pothulaiah, near Ravindra Barathi School, Keshava Nagar, Dharmavaram Town, Driver cum owner of tractor bearing No.AP02-P.6414 and Trailer No.AP02-X-5854. ….Accused

This case having been come on 17.03.2020 for final hearing before me in the presence of Senior Assistant Public Prosecutor for the State and of Sri M.Shankar Narayana Reddy, Counsel for accused No.1 to 5 and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Dharmavaram Rural Police Station filed charge sheet against the Accused No.1 to 5 in Cr.No.77/2019 for the offences punishable under sections 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w Rule

C.C.No.503 of 2019, dt.24.03.20202 JFCM, DMM 26 of A.P.Walta Rules and section 181 of M.V. Act against the Accused No.1 to 5.

The Accused No.1 and 5 charged and tried for the offences punishable under sections 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w Rule 26 of A.P.Walta

Rules and section 181 of M.V. Act.

2.The case of the prosecution in brief:-

On 17.07.2019 at about 1-30 PM at Chitravathi Vanka, near

Pothlanagepalli village, Dharmavaram Mandal, the accused No.1 to 5 being the drivers cum owners of Tractor and Trailer bearing Nos.AP02-W-9721/AP02-W-9722,

AP02-BR-5849/AP02-TH-3707, AP02-TC-3132/AP02-TC-2405, AP02-TE-0497 and

AP02-P-6414/AP04-X-5854 were found committed theft of sand from Chitravathi

River in their tractors and trailers and illegally transporting the same without any permission from the concerned authorities.

3.LW.4-U.Rama Chandra, Assistant Sub-Inspector of Police, Dharmavaram

Rural Police registered a case in Cr.No.77/2019 under section 379 I.P.C and Section 35 of A.P.Walta Act 2002 r/w Rule 26 of A.P.Walta Rules and served noticed U/s 41 (A) Cr.P.C to the accused. Further, as the Accused No.1 to 5 are not having license to drive tractors and also failed to produce records for their tractors and thus section 181 of A.P.M.V Act is added to this case. Hence the charge.

4.After completion of investigation, LW.5 filed charge sheet on under section 173 (2) of the Code of Criminal Procedure (in short Cr.P.C.) against the accused No.1 to 5 for the offences punishable under sections under sections 379 of

IPC and section 35 of A.P. Walta Act, 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act.

5.This court took cognizance of the offence for the offences punishable under sections under sections 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w

Rule 26 of A.P.Walta Rules and section 181 of M.V. Act against accused No.1 to 5 and the case is numbered as CC.503/2019 under section 190(1) (b) Cr.P.C.

6.On appearance of accused No.1 to 5, case copies were furnished to them as required under Section 207 Cr.P.C.

C.C.No.503 of 2019, dt.24.03.20203 JFCM, DMM

7.Accused No.1 to 5 were examined under Section 239 Cr.P.C. and the substance of the accusation against them for the offences punishable under sections under sections 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act read over and explained to them in

Telugu. The accused pleaded not guilty and claimed to be tried.

8.During trial, on behalf of prosecution, P.Ws.1 to 4 were examined and got marked Ex.P1 to Ex.P4. The Senior Assistant Public Prosecutor not choose to examine LW.5-B.V.Nagesh, SI of Police, Dharmavaram Rural Police Station.

Prosecution evidence is closed.

9.After completion of the evidence for prosecution, the accused No.1 to 5 were examined under section 313 Cr.P.C. and all incriminating evidence available against them is read over and explained to them in Telugu for which the stood by the denial and refuted the correctness of incriminating circumstances with in which they were confronted. However, the accused did not let in any evidence, oral or documentary, in their defence.

10. Heard the learned Senior Assistant Public Prosecutor and learned counsel

for the accused No.1 to 5.

11.Now the point for determination is:- Whether the prosecution is succeeded in bringing home the guilt of the accused No.1 to 5 for the offences punishable U/s under sections 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act, beyond all reasonable doubt?

12.The case of prosecution is that the accused No.1 to 5 being the drivers cum owners of Tractor and Trailer bearing Nos.AP02-W-9721/AP02-W-9722, AP02-BR- 5849/AP02-TH-3707, AP02-TC-3132/AP02-TC-2405, AP02-TE-0497 and AP02-P- 6414/AP04-X-5854 were found committed theft of sand from Chitravathi River in their tractors and trailers and illegally transporting the same without any permission from the concerned authorities. The accused No.1 to 5 charged for the said offences.

C.C.No.503 of 2019, dt.24.03.20204 JFCM, DMM

13.In order to bring home charges against the accused, the prosecution examined PW.1 to 4 and got marked Ex.P1 to Ex.P4.

14. Yanamala Chandra, one of the mediator in whose presence police arrested and seized tractors and sand basing upon confession of Accused No.1 to

Accused No.5 is examined as PW.1. PW.1 in his evidence deposed that he do not know anything about the present case. PW.1 further deposed that Police never arrested accused and never seized five tractors loaded with stand in his presence.

PW.1 further deposed that no mahazar was prepared in his presence.

15.The learned Assistant Public Prosecutor declared P.W.1 as hostile and cross examined P.W.1 as adverse party with the permission of the Court and in the cross examination PW.1 denied that mahazar is prepared and he signed on mahazar after knowing its contents. P.W.1 further denied the suggestion made by the prosecution that he is deposing false evidence as he colluded with the accused.

16. T.Chandrasekhar, one of the mediator in whose presence police arrested and seized tractors and sand basing upon confession of Accused No.1 to

Accused No.5 is examined as PW.2. PW.2 in his evidence deposed that he do not know anything about the present case. PW.2 further deposed that police never arrested accused and never seized five tractors loaded with stand in his presence.

PW.2 further deposed that no mahazar was prepared in his presence.

17.The learned Assistant Public Prosecutor declared P.W.2 as hostile and cross examined P.W.2 as adverse party with the permission of the Court and in the cross examination PW.2 denied that mahazar is prepared and he signed on mahazar after knowing its contents. P.W.2 denied the suggestion made by the prosecution that he is deposing false evidence as he colluded with the accused.

18.Ramdas, Head Constable, Dharmavaram Rural PS who assisted PW.4 is examined as PW.3. PW.3 in his evidence deposed that on 17.07.2019 at 1.30 PM while he along with his Sub-Inspector, mediators and other two constables were conducting vehicle check-up at Chitravathi Vanka near Pothulanagepalli village of

Dharmavaram and found five tractors with sand, then they stopped, enquired and as the Accused No.1 to A5 not produced any valid license for transporting the sand,

C.C.No.503 of 2019, dt.24.03.20205 JFCM, DMM

PW.4-U.Ramachandra, Assistant Sub-Inspector of Police issued notice U/s 41-A of

Cr.P.C to A1 to A5 of and seized a Tractors and Trailer Bearing Nos.AP02-W- 9721/9722, AP02-BR-5849/3707, AP02-TC-3132/2405, AP02-TE-0479/0497 and AP02-

P-6414/5854 under cover of Mahazaranama.

19.PW.3 in his cross examination deposed that PW.4 did not try to secure the presence of mediators at the scene of arrest. PW.3 denied that they never went to scene of arrest and never seized any tractors and never arrested the accused.

PW.3 denied that he is deposing false.

20.U.Ramachandra, ASI of Police, Dharmavaram Rural PS is examined as

PW.4. PW.4 in his evidence deposed that on 17.07.2019 at about 4 PM while he along with PW.3 and his staff conducting vehicle checkup at at Chitravathi Vanka near Pothulanagepalli village of Dharmavaram, he found five sand tractors, then they stopped, enquired and as Accused No.1 to 5 not produced any valid license for transporting the sand and on their confession that they committed theft of sand from Chitravathi river for the purpose of selling the same at Dharmavaram, he arrested Accused No.1 to 5 and seized Tractors and Trailer Bearing Nos.AP02-W- 9721/9722, AP02-BR-5849/3707, AP02-TC-3132/2405, AP02-TE-0479/0497 and AP02-

P-6414/5854 under cover of Mahazar. Ex.P3 is the Mahazar. Then based on the

Mahazar, he registered a case in Cr.No.7/2019 U/s 379 IPC and Section 35 of AP

Walta Act, 2002 r/w 26 of AP Walta Rules and issued FIR. Ex.P4 is the FIR. He further stated that he served notice to Accused No.1 to 5. Later he forwarded CD to the SI of Police further investigation i.e. LW.5-B.V.Nagesh Babu and after completion of investigation LW.5 laid a Charge Sheet against Accused No.1 to 5.

21.PW.4 In his cross examination deposed that the scene of arrest is main road and it is busy road surrounded by residential houses and shops. PW.4 in his cross examination deposed that he did not try to secure the presence of mediators at the scene of arrest. PW.4 denied that they never went to scene of arrest and never seized any tractors and never arrested the accused. PW.4 denied that he is deposing false.

C.C.No.503 of 2019, dt.24.03.20206 JFCM, DMM

22. The learned Senior Assistant Public Prosecutor during the course of arguments submitted that as per evidence of PW.1 to PW.4, the prosecution is able to establish that the accused No.1 to 5 transporting sand illegally without permit and license and thus they committed theft of the sand. The learned Senior Assistant

Public Prosecutor further submitted that even though the mediators in whose presence PW.4 arrested accused No.1 to 5 and seized tractors have not supported the case of prosecution, it is not fatal to the prosecution case as evidence of PW.3 and PW.4 is inspiring confidence and trustworthy and prays to convict the accused.

23.The learned counsel for the accused No.1 to 5 submitted that except the evidence of Investigating Officer and Police Constable who assisted, there is no other evidence as the mediators in whose presence the police arrested the accused

No.1 to 5 and seized tractors have not supported the case of prosecution. Further there is no evidence to show that the accused No.1 to 5 loaded sand in their tractor and the prosecution is silent about the deposit of sand to concern authorities as per law.

24.As observed from the prosecution evidence, PW.1 and PW.2 are the mediators in whose presence accused are confessed, seized the tractors and trailers and arrested have not supported the prosecution case and declared hostile. The witnesses further stated that they never witnessed the police seized the tractors and arrested the accused.

25.Thus, except the evidence of Investigating Officers there is no other independent evidence available against the accused. The entire case of prosecution rests upon the confession, arrest and seizure mahazar, but the said Mahazar witnesses turned hostile which create doubt about the prosecution case and does not inspire confidence relating to the confession by the accused and seizure of material objects from the possession of the accused.

26.The alleged seizure of tractors and trailers from the possession of the accused and their statement is hit by the sections 25 and 27 of Indian Evidence Act.

27.Further, the prosecution did not adduce any evidence to show that the sand seized in connection with the offence was produced or dealt with in

C.C.No.503 of 2019, dt.24.03.20207 JFCM, DMM accordance with the law. This creates doubt about the very case of the prosecution that the accused committed any offence in respect of sand and also that sand was ever seized from the accused.

28.Thus the prosecution is unsuccessful in bringing home the guilt of the accused that he was committing theft of sand and transporting the same to sell at

Dharmavaram as such they are punishable under sections 379 I.P.C and Section 35 of A.P. Walta Act 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act beyond reasonable doubts.

29.In the result, Accused No.1 to 5 are not found guilty for the offences punishable under sections 379 I.P.C and Section 35 of A.P.Walta Act 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act and they are acquitted U/Sec.248 (1) Criminal Procedure Code. The interim custody of property i.e. Tractor and Trailer

Bearing Nos.AP02-W-9721/9722 which was already given to K.Peddi Reddy, Vide

Orders in Crl.M.P.No.332/2019, another Tractor and Trailer bearing No.AP02-BR- 5849/3707 which was already given to E.Peddi Reddy @ Indalavari Peddi Reddy Vide

Orders in Crl.M.P.No.330/2019, another Tractor and Trailer bearing No.AP02-TC- 3132/2405 which was already given to Kambam Kristamma Vide Orders in

Crl.M.P.No.331/2019, another Tractor and Trailer bearing No.AP02-TE-0479/0497

which was already given to K.Peddi Reddy Vide Orders in Crl.M.P.No.333/2019 and another Tractor and Trailer bearing No.AP02-P-6414/5854 which was already given to N.Pothulaiah as per orders of Honourable Court, Vide orders in

Crl.M.P.No.329/2019, dated 23.07.2019 are made absolute after expiry of appeal

time.

Typed to my dictation by the Stenographer-III, corrected and pronounced by me in open court, this the 24th day of March, 2020.

Sd/- Smt P.GAYATHRI,

Judicial Magistrate of I Class,

Dharmavaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW.1 : Y.Chandra -None- PW.2 : D.Chandra Sekhar PW.3 : M.Ramadas PW.4 : U.Ramachandra

C.C.No.503 of 2019, dt.24.03.20208 JFCM, DMM

EXHIBITS MARKED FOR PROSECUTION

Ex.P1: Signature of PW.1 in Mahazar, dated 17.07.2019 Ex.P2: Signature of PW.1 in Mahazar, dated 17.07.2019 Ex.P3: Arrest-cum-seizure Mahazar, dated 17.07.2019 Ex.P4: First Information Report.

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

Id/- P.G., J.F.C.M. DMM

C.C.No.503 of 2019, dt.24.03.20209 JFCM, DMM

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Date of

OffenceReportApprehensionReleasedCommence-Close of trialSentence of Accusedon bailment of trial 17.07.1917.07.19------24.02.202017.03.2020 24.03.2020

Judgment in C.C.No.503/2019 on the file of Judl. Magistrate of First Class, Dharmavaram

Complainant :: Sub-Inspector of Police, Dharmavaram Rural PS

Crime No.77/2019

Sl. Name of the AgeFather’s Name CallingReligionResidenceMandal Accused No 1K.Peddi Reddy40 K.Peddi Reddy--HinduPothulanagepalliDharmavaram yrs 2I.Peddi Reddy40 I.Narayana --HinduPothulanagepalliDharmavaram yrsReddy

3.K.Narayana 38 Narasi Reddy--HinduPothulanagepalliDharmavaram Reddyyrs

4.K.Peddi Reddy40 Narasi Reddy-–HinduPothulanagepalliDharmavaram yrs

5.N.Pothulaiah42 N.Pothulaiah--HinduDharmavaramDharmavaram yrs

Offence :- U/s 379 of IPC and section 35 of A.P. Walta Act, 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act

Finding :- Accused No.1 to 5 are found not guilty.

Sentence :-In the result, Accused No.1 to 5 are not found guilty for the offences punishable under sections 379 I.P.C and Section 35 of A.P.Walta Act 2002 r/w Rule 26 of A.P.Walta Rules and section 181 of M.V. Act and they are acquitted U/Sec.248 (1) Criminal Procedure Code. The interim custody of property i.e. Tractor and Trailer Bearing Nos.AP02-W-9721/9722 which was already given to K.Peddi Reddy, Vide Orders in Crl.M.P.No.332/2019, another Tractor and Trailer bearing No.AP02-BR- 5849/3707 which was already given to E.Peddi Reddy @ Indalavari Peddi Reddy Vide Orders in Crl.M.P.No.330/2019, another Tractor and Trailer bearing No.AP02- TC-3132/2405 which was already given to Kambam Kristamma Vide Orders in

Crl.M.P.No.331/2019, another Tractor and Trailer bearing No.AP02-TE-0479/0497

which was already given to K.Peddi Reddy Vide Orders in Crl.M.P.No.333/2019 and another Tractor and Trailer bearing No.AP02-P-6414/5854 which was already given to N.Pothulaiah as per orders of Honourable Court, Vide orders in

Crl.M.P.No.329/2019, dated 23.07.2019 are made absolute after expiry of appeal

time.

Sd/- Smt P.GAYATHRI,

Judicial Magistrate of I Class,

Dharmavaram

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu

C.C.No.685 of 2019, dt.23.06.2020 JFCM, DMM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

DHARMAVARAM.

Present: Smt. P.Gayathri,

Judicial Magistrate of Ist Class, Dharmavaram.

Tuesday, this the 23rd day of June, 2020

C.C.No.685/2019

Between:- State rep. by Sub-Inspector of Police, Dharmavaram Town P.S.…Complainant

And

Malagundla Mallanna, aged 52 years, S/o late M.Ganganna, R/o D.No.25-472, near Andhra Bank, Parthasarathi Nagar, Dharmavaram Town, (Caste: Kuruba, Profession: Business), Cell No.8019988606, Aadhaar No.450317164819. ….Accused

This case having been come on 26.03.2020 for final hearing before me in the presence of Senior Assistant Public Prosecutor for the State and of Sri D.L.N.Murthy, Counsel for accused and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Dharmavaram Town Police Station filed charge sheet against the Accused in Cr.No.314/2019 of Dharmavaram Town Police for the offences punishable U/sec.270, 273 and 328 of Indian Penal Code (in brevity

I.P.C) and section 7 and 22 of Cigarettes and other Tobacco Products Act (in brevity

COTPA) against the Accused. The Accused charged and tried for the offences punishable U/s 270 and 273 IPC and Section 7 and 22 of COTP Act.

2.The case of the prosecution in brief:-

On 21.09.2019 at 10-00 A.M. on credible information about illegal transportation and possession of adulterated tobacco products for sale in

Dharmavaram Town, LW.3-N.K.Mune Naik, Head Constable, Dharmavaram Town

Police Station along with staff and mediators i.e. LW.1-Pathakamuri Naresh Babu and

LW.2-Gopuram Dilip Kumar rushed near Shiridi Sai Baba Temple Circle, at Andhra

Bank, Parthasarathi Nagar, Dharmavaram Town and found Accused in suspicious

C.C.No.685 of 2019, dt.23.06.2020 2 JFCM, DMM circumstances, caught hold of him, searched him and found 1) Madhu Tobacco 16 pockets each worth of Rs.64/- and Badsha Tobacco 20 pockets each pocket worth of

Rs.8/- worth of Rs.160/- all worth of Rs.224/- from the possession of Accused and on the confession of accused, he seized the said Tobacco products in the presence of mediators i.e. LW.1-Pathakamuri Naresh Babu and LW.2-Gopuram Dilip Kumar under cover of mahazar.

3.Basing on the said Mahazarnama, LW.3 Head Constable, Dharmavaram

Town PS, registered a case in Cr.No.314/2019 for the offences punishable under sections 270, 273 and 328 r/w 34 of IPC and section 7 and 22 of Cigarettes and other Tobacco Products Act (In short COTPA) of Dharmavaram Town police station investigated into. During the course of investigation, on 21.09.2019 LW.3-N.K.Mune

Naik, HC, Dharmavaram Town Police Station arrested the accused and seized the property and and sent for judicial remand.

4.After completion of investigation, LW.4-T.V.Sriharsha filed charge sheet after verifying the investigation done by LW.3 under section 173 (2) of the Code of

Criminal Procedure (in short Cr.P.C.) against the accused for the offences punishable under sections 270, 273 and 328 r/w 34 of IPC and section 7 and 22 of COTPA.

5.This court took cognizance of the offences for the offences punishable under sections 270 and 273 r/w 34 of IPC and section 7 and 22 of COTPA against accused and the case is numbered as CC.685/2019 under section 190(1) (b) Cr.P.C.

6.On appearance of accused before Judicial First Class Magistrate Court,

Dharmavaram case copies were furnished to them as required under Section 207

Cr.P.C.

7.Accused was examined under Section 239 Cr.P.C. and the substance of the accusation against him for the offences punishable under sections 270 and 273 of IPC and section 7 and 22 of COTPA read over and explained to him in Telugu. The accused pleaded not guilty and claimed to be tried.

8.During trial, on behalf of prosecution, P.Ws.1 to 3 were examined and got marked Ex.P1 to Ex.P4 and also got marked Mo.1-Seized Gutka Pockets. The learned

C.C.No.685 of 2019, dt.23.06.2020 3 JFCM, DMM

Senior Assistant Public Prosecutor choose not to examine LW.4-T.V.Sriharsha, the

Sub-Inspector of Police, Dharmavaram. Prosecution evidence is closed.

9.After completion of the evidence for prosecution, the accused was examined under section 313 Cr.P.C. and all incriminating evidence available against him is read over and explained to him in Telugu for which the stood by the denial and refuted the correctness of incriminating circumstances with in which he was confronted. However, the accused did not let in any evidence, oral or documentary, in his defence.

10. Heard the learned Senior Assistant Public Prosecutor and learned counsel

for the accused.

11.Now the point for determination is:- Whether the prosecution is succeeded in bringing home the guilt of the accused for the offences punishable U/s 270 and 273 of IPC and section 7 and 22 of COTP Act beyond all reasonable doubt?

12.In order to prove the guilt of the accused the prosecution has to prove that the accused is in possession of gutka packets for sale of gutka which causes noxious diseases and endanger to life.

13.In order to bring home charges against the accused, the prosecution examined PW.1 to 3 and got marked Ex.P1 to Ex.P4 and also Mo.1.

14.The case of prosecution is that accused is in possession of Gutka products for the purpose of sale as such he committed the offences punishable U/s 270, 273 r/w 34 of IPC and Section 7 and 22 of Cigarettes and other Tobacco

Products Act. The accused charged for the said offences.

15.Pathakamuri Naresh Babu, one of the mediator in whose presence the police found the accused in possession of Gutka packets and seized same under cover of mahazar was examined as PW.1. PW.1 in his evidence deposed that he do not know the accused and do not know anything about the present case. PW.1 further deposed that Police never seized any gutka packets from the possession of accused in his presence. PW.1 further stated that he signed on some written papers without knowing its contents.

C.C.No.685 of 2019, dt.23.06.2020 4 JFCM, DMM

16.The learned Assistant Public Prosecutor declared P.W.1 as hostile and cross examined P.W.1 as adverse party with the permission of the Court and in the cross examination P.W.1 denied the suggestion made by the prosecution that he is deposing false evidence as he colluded with the accused. Even though he signed on mahazar after knowing the contents which was prepared in his presence.

17. Gopuram Dilip Kumar, another mediator in whose presence the police found the accused in possession of Gutka packets and seized the same under cover of mahazar was examined as PW.2. PW.2 in his evidence deposed that he do not know the accused and do not know anything about the present case. PW.2 further deposed that Police never seized any gutka packets from the possession of accused in his presence. PW.2 further stated that he signed on some written papers without knowing its contents. Even though he signed on mahazar after knowing the contents which was prepared in his presence

18.The learned Assistant Public Prosecutor declared P.W.2 as hostile and cross examined P.W.2 as adverse party with the permission of the Court. In the cross examination P.W.2 denied the suggestion made by the prosecution that he is deposing false evidence as he colluded with the accused.

19.PW.3, N.K.Mune Naik, Investigation Officer deposed that on 21.09.2019 he received credible information about illegal possession and transport of adulterated tobacco products for the sale, then he secured his staff and mediators and rushed to the scene of offence and there he found one person who was in possession of carry bags, enquired, checked him and found the said Tobacco products and seized the same in the presence of mediators under cover of mahazar i.e. Ex.P3. PW.3 further deposed that basing on the Mahazar, he registered a case in

Cr.No.314/2019 U/s 270, 273, 328 r/w 34 of IPC and section 7 and 22 of COTP Act and then issued FIR i.e. Ex.P4 later forwarded to all concerned authorities and sent the Accused to judicial remand and on completion of investigation LW.4-SI of Police laid a charge sheet against Accused.

20.PW.3 In his cross examination deposed that he did not issue any written summons to PW.1 and PW.2. PW.3 further deposed that the scene of offence

C.C.No.685 of 2019, dt.23.06.2020 5 JFCM, DMM is a busy locality. PW.3 further deposed that he did not try to secure the presence of mediators at the scene of arrest. PW.3 denied that the accused was falsely implicated in the present case.

21.The case of the prosecution is that the accused illegally and unlawfully possessed gutka packets and transporting and selling the same for his monitory benefits and on information PW.3 Head Constable rushed to scene of offence and seized the gutka pockets from the accused in the presence of PW.1 and PW.2.

22.PW.3, the investigating officer deposed that he seized M.O.1 from the possession of the accused in the presence of mediators i.e., PW.1 and PW.2.

23.As observed from the prosecution evidence, PW.1 and PW.2 stated that they do not know anything about the present case. PW.1 and PW.2 are the mediators in whose presence accused is confessed, the police seized the Mo.1 and arrested the accused did not support the prosecution case. The witnesses further stated that they never witnessed the police seized gutka packets from the possession of the accused never arrested him. PW.1 and PW.2 declared hostile by the prosecution.

24.Thus, except the evidence of Investigating Officer there is no other independent evidence available against the accused. The entire case of prosecution rests upon the confession, arrest and seizure mahazar, but the said Mahazar witnesses turned hostile which create doubt about the prosecution case and does not inspire confidence relating to the confession by the accused and seizure of material objects from the possession of the accused.

25.Thus there is no evidence of independent witnesses to prove that the accused is in possession of large quantity of gutka packets except the evidence of police officials.

26.The Hon’ble High Court of Andhra Pradesh in S.Babu Saheb @ Babu Vs

State of Andhra Pradesh, 2010 (1) ALT (Crl) 32 (AP) in Paragraph No.27 was pleased to hold that:-

C.C.No.685 of 2019, dt.23.06.2020 6 JFCM, DMM

“The evidence let in by the prosecution must create confidence and

must be reliable. Since no efforts were made to take independent

mediators into case, it appears that it is not desirable to convict the

accused on evidence of PW.1 and 2.”

27.The alleged recovery of gutka packets from the possession of the accused and his statement is hit by the sections 25 and 27 of Indian Evidence Act.

Further Mahazar which is marked as Ex.P3 is inadmissible in evidence as it is hit by section 162 Cr.P.C.

28.Thus the prosecution is unsuccessful in bringing home the guilt of the accused that the accused possessed the gutka packets for sale which is a noxious substances which spreads disease endanger to human life for his monetary benefits as such he is punishable under sections 270 and 273 Indian Penal Code and section 7 and 22 of Cigarettes and other Tobacco Products Act beyond reasonable doubts.

29.With the above observations, it is manifest that the prosecution did not prove the guilt of the accused beyond all reasonable doubt. The accused is entitled for acquittal on benefit of doubt.

30.In the result, Accused is not found guilty for the offences punishable

U/sec.270 and 273 of Indian Penal Code and section 7 and 22 of Cigarettes and other Tobacco Products Act and he is acquitted U/Sec.248 (1) Criminal Procedure

Code. Mo.1-Gutka packets shall be destroyed after appeal time. The bail bonds of the Accused shall remain in force for a period of six months from today under section 437 (A) Cr.P.C. for his appearance before the Hon’ble Appellate Court as and when directed.

Typed to my dictation by the Stenographer-III, corrected and pronounced by me in open court, this the 23rd day of June, 2020.

Sd/- Smt P.GAYATHRI,

Judicial Magistrate of I Class,

Dharmavaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW.1 : P.Naresh Babu -None- PW.2 : G.Dilip Kumar PW.3 : N.K.Mune Naik

C.C.No.685 of 2019, dt.23.06.2020 7 JFCM, DMM

EXHIBITS MARKED FOR PROSECUTION

Ex.P1: Signature of PW.1 in Mahazar, dated 21.09.2019 Ex.P2: Signature of PW.1 in Mahazar, dated 21.09.2019 Ex.P3: Mahazarnama, dated 21.09.2019. Ex.P.4: First Information Report

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

Mo.1:- Gutka Pockets.

Id/- P.G., J.F.C.M. DMM

C.C.No.685 of 2019, dt.23.06.2020 8 JFCM, DMM

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Date of

OffenceReportApprehensionReleased onCommence-Close ofSentence of Accusedbailment of trialtrial 21.09.1921.09.1921.09.201928.09.201920.01.202019.03.2020 23.06 .2020

Judgment in C.C.No.685/2019 on the file of Judl. Magistrate of First Class, Dharmavaram

Complainant :: Sub-Inspector of Police, Dharmavaram Town PS

Crime No.314/2019

Sl. Name of the AgeFather’s NameCallingReligionResidenceMandal Accused No 1M.Mallanna52 M.Ganganna--HinduDharmavaramDharmavaram yrs

Offence :- 270 and 273 IPC U/sec 7 and 22 of COTP Act

Finding :- Accused is found not guilty.

Sentence :-In the result, Accused is not found guilty for the offences punishable U/sec.270 and 273 of Indian Penal Code and section 7 and 22 of Cigarettes and other Tobacco Products Act and he is acquitted U/Sec.248 (1) Criminal Procedure Code. Mo.1-Gutka packets shall be destroyed after appeal time. The bail bonds of the Accused shall remain in force for a period of six months from today under section 437 (A) Cr.P.C. for his appearance before the Hon’ble Appellate Court as and when directed.

Sd/- Smt P.GAYATHRI,

Judicial Magistrate of I Class,

Dharmavaram

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu.

O.S.No.261/2017, dt.18.05.2020 PJCJ, DMM

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

Present : Smt. P.Gayathri,

Principal Junior Civil Judge, Dharmavaram.

Monday, the 18th day of May, 2020.

O.S.No.261/2017

Between:

T.Venkatanarayana Reddy, S/o T.Yarra Venkata Reddy, aged about 46 years, Hindu, Agriculture, residing at Thathi Reddy Palli village, Lingala Mandal, Kadapa District. Cell No.9573525409.

... Plaintiff

And

V.Kullay Reddy, S/o Hanumantha Reddy, aged about 44 years, Hindu, Business, residing at D.No.1-85, Gummallakuntavillage,BathalapalliMandal, Anantapuramu District.

... Defendant

This suit came up for final hearing before me on 26.03.2019 in the presence Sri P.Lakshminarayana, Learned Counsel for the plaintiff and Sri A.Venugopal and Sri K.L.Nagarjuna Gupta, Learned Counsels for the defendant and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1.This suit is filed by the plaintiff for recovery of a sum of Rs.2,17,400/- (Rupees

Two lakh seventeen thousand four hundred Only) (Rs.1,08,750/- + Rs.1,08,650/-) being the principal and interest due under suit promissory notes dt.18.03.2017 and 20.03.2017 for Rs.1,00,000/- (Rupees One lakh only) each respectively repayable along with interest at 18% p.a., together with accrued interest and costs from the defendant.

2.The averments of the plaint are that the defendant borrowed a sum of

Rs.2,00,000/- (Rupees Two lakh Only) (Rs.1,00,000/- + Rs.1,00,000/-) from the plaintiff on 18.03.2017 and on 20.03.2017 and executed ‘A’ and ‘B’ marked promissory notes on the even date agreeing to repay the same together with interest at the rate of 18% per annum either to the plaintiff or his order on demand. The plaintiff further submitted that the defendant did not repay the debt despite of repeated demands made by the plaintiff. Therefore, the plaintiff demanded the

O.S.No.261/2017, dt.18.05.2020 2 PJCJ, DMM

defendant to repay the said debt and the same was deliberately refused by the defendant. The plaintiff further submitted that the defendant is not an agriculturist and he is not entitled for any relief under the A.P Debt Relief Act. Hence, the plaintiff filed the suit for the reliefs stated above.

3.The defendant filed his written statement denying all the material allegations made by the plaintiff in his plaint. The defendant further submitted that he never borrowed any amounts from the plaintiff nor executed any promissory notes in favour of the plaintiff. The defendant further submitted that the plaintiff created and forged the suit promissory note with mala fide intention for wrongful gain and even the attestors and scribe also the native of Kadapa District and the defendant have not at all seen them. The defendant further submitted that the plaintiff filed the unjust suit for wrongful gain and prayed to dismiss the suit.

4.Basing on the rival contentions of both the Parties, the following issues are settled for trial:-

1. Whether the suit promissory notes are true, valid, genuine and binding on the defendant?

2. Whether the plaintiff is entitled for suit claim?

3. To what relief?

Issue No.1:

5. During the course of trial, the plaintiff got examined himself as P.W.1. P.W.1 got marked Ex.A.1 and Ex.A2 i.e., suit promissory note dated 18.03.2017 and Suit promissory note, dated 20.03.2017. The plaintiff also got examined P.Gopal Reddy, one of the attestor of Ex.A1 and Ex.A2, as P.W.2.

6.In order to rebut the evidence of the plaintiff the defendant got examined himself as D.W.1 and no documents marked on his behalf.

7.P.W.1 in his evidence reiterated the contents of the plaint and further submitted that the defendant executed Ex.A.1 and Ex.A2 promissory notes after receiving the consideration of Rs.2,00,000/- (Rs.1,00,000/- + Rs.1,00,000/-) agreeing to repay with 18% per annum. P.W.1 further deposed that despite his repeated demands the defendant did not choose to repay the debt.

O.S.No.261/2017, dt.18.05.2020 3 PJCJ, DMM

8.During the course of his cross-examination, P.W.1 deposed that the defendant is his relative. PW.1 deposed that the defendant borrowed the amounts prior to one month of execution of Ex.A1 and Ex.A2 promissory notes. PW.1 further deposed that the defendant himself brought the attestors to his village. PW1 denied that he requested the defendant to sold his land in his village.

9.In support of his case, the plaintiff got examined P.Gopal Reddy, the third party, as P.W.2. P.W.2 in his affidavit in lieu of examination-in-chief and deposed that the defendant borrowed of Rs.2,00,000/- (Rs.1,00,000/- + Rs.1,00,000/-) on 18.03.2017 and 20.03.2017 agreeing to repay the same together with interest at 18% p.a., and executed Ex.A.1 and Ex.A2. P.W.2 further deposed that at the time of execution of

Ex.A.1, the defendant, he himself and one T.Nageswara Reddy who is the attestor of

Ex.A1 were present and at the time of execution of Ex.A2, the defendant, he himself and one M.Ramakrishna who is the attestor were present.

10.During the course of his cross-examination, P.W.2 deposed that he is having acquaintance with the plaintiff as well as with the defendant. PW.2 denied that the plaintiff filed the present suit against the defendant as he refused to sell his property.

PW.2 denied that he is deposing false.

11.In order to rebut the evidence of the plaintiff the defendant got examined himself as D.W.1 by filing his affidavit in lieu of examination-in-chief which is nothing but a replica of his written statement. D.W.1 deposed that he never borrowed the suit amount from the plaintiff and never executed Ex.A.1 and Ex.A2 suit promissory notes.

D.W.1 further deposed that Ex.A.1 and Ex.A2 are forged and fabricated documents which are created with malafide intention to get wrongful gain from him by filing the present suit.

12.During the course of his cross-examination, D.W.1 deposed that he is having acquaintance with the plaintiff prior to filing of the suit and he is having landed properties at Gummalakunta village. D.W.1 further deposed that he has acquaintance with the PW.2. DW.1 denied that in order to evade the suit amount he is deposing false and he never executed Ex.A1 and Ex.A2 and he is not having acquaintance with the plaintiff, attestors and the scribe. DW.1 denied taht he is deposing false.

O.S.No.261/2017, dt.18.05.2020 4 PJCJ, DMM

13.The learned Counsel for the plaintiff submitted that the plaintiff by adducing cogent and reliable evidence in the form of P.W.1 and P.W.2 and Ex.A.1 and Ex.A2 has established his case that the defendant borrowed an amount of Rs.2,00,000/- (Rs.1,00,000/- + Rs.1,00,000/- and executed Ex.A.1 suit promissory noted dt.18.03.2017 and Ex.A2 Suit promissory note dt.20.03.2017 in favour of the plaintiff after passing of consideration and prayed to decree the suit.

14.Per contra, the learned Counsel for the defendant submitted that Ex.A.1 and

Ex.A2 suit promissory notes were not executed by the defendant and that they were also not executed on the day mentioned on it, as can be seen from the evidence of

D.W.1 and prays to dismiss the suit.

15.A conjoint reading of the entire evidence on record would show that the plaintiff had discharged the initial burden that lies on him about the execution of

Ex.A.1 and Ex.A2 suit promissory notes by the defendant by examining P.W.2. Both of them have stated that Ex.A.1 and Ex.A2 were executed by the defendant after passing of consideration on 18.03.2017 and 20.03.2017. The defendant except alleging that the suit promissory note is a forged and fabricated one did not take any steps to prove the same and did not discharge the burden that lies on him in this regard.

16.Moreover, P.W.2 stated about the passing of consideration under Ex.A.1 and

Ex.A2 suit promissory notes. P.W.1 and P.W.2 have stated that the defendant, attestor and the scribe of Ex.A.1 were present on 18.03.2017 and on 20.03.2017 i.e., the day on which they were executed. A perusal of the evidence would reveal that not even a suggestion was put to P.W.1 and P.W.2 that the he has no acquaintance with the scribe and attestor at the time of execution of the suit promissory notes, which is the defence of the defendant. It is a well established principle of law that what is not suggested is admitted. It is evident that the transaction of the suit promissory notes were took place on the dates of their execution.

17.PW.1 and PW.2 have deposed about the passing of consideration and execution of the suit promissory notes by the defendant. Acquaintance of scribe and attestor is no way helpful to the defendant’s defence.

O.S.No.261/2017, dt.18.05.2020 5 PJCJ, DMM

18.In view of the above facts, it is evident that Ex.A.1 and Ex.A2 suit promissorys note are true, valid and binding on the defendant. The issue is answered accordingly.

Issue No.2:

19.The passing of consideration under Ex.A.1 and Ex.A2 suit promissory notes and their execution by the defendant is proved by the plaintiff as can be seen from the findings in respect of Issue No.1. The plaintiff demanded repayment of loan and the defendant did not repay the same. The plaintiff is entitled to recover the suit claim as the defendant did not repay the same.

20.The law governing award of interest is contained in section 34 of C.P.C. It permits grant of interest at three stages of the suit viz., prior to the institution of the suit, during the pendency of the suit – from the date of institution of the suit till the date of decree and post-decretal stage – from the date of decree till the date of realisation. Interest is a measure of compensation for the creditor for lending money to the debtor, which he would have otherwise utilised in a beneficial manner had it not been for such lending. The defendant did not adduce any evidence as to his entitlement for paying lesser interest than claimed by the plaintiff. The plaintiff is entitled to the suit claim amount. The issue is answered accordingly in favour of the plaintiff and against the defendant.

Issue No.3:

21.In the result, the suit is decreed with costs for a sum of Rs.2,17,400/- (Rupees

Two lakh seventeen thousand four hundred Only) (Rs.1,08,750/- + Rs.1,08,650/-) together with subsequent interest @ 12% per annum from the date of institution of the suit till the date of decree and thereafter @ 6 till the date of realisation on the

principal sum of Rs.2,00,000/- (Rupees Two lakh only) (Rs.1,00,000/- +

Rs.1,00,000/-) .

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

by me in open court, on this the 18th day of May, 2020.

Sd/- Smt P.GAYATHRI,

Principal Junior Civil Judge,

Dharmavaram.

O.S.No.261/2017, dt.18.05.2020 6 PJCJ, DMM

Appendix of Evidence

List of Witnesses Examined

For Plaintiff: For Defendant: P.W.1: T.Venkatanarayana ReddyD.W.1: V.Kullay Reddy P.W.2: P.Gopal Reddy

Exhibits marked for the Plaintiff:

Ex.A.1: Original promissory note under ‘A’ marked executed by the defendant in favour of the plaintiff dt.18.03.2017

Ex.A.2: Original promissory note under ‘A’ marked executed by the defendant in favour of the plaintiff dt.20.03.2017.

Exhibits marked for the Defendant:

-NIL-

Id/- P.G., PJCJ, DMM.