Smt. P. Neeraja

IN THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE :

RANGA REDDY DISTRICT : AT L B NAGAR

PRESENT: SMT. P. NEERAJA,

IX ADDITIONAL SENIOR CIVIL JUDGE

FAC I ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

SATURDAY, THIS THE 30 th DAY OF APRIL, 2016

O.S No. 2457/2007

BETWEEN:

K.Shiva Kumar, S/o K. Buchaiah,

Aged about 48 years, Occ: Service, r/o 2-2-185/24/B, Mallikarjuna Nagar,

Amberpet, Hyderabad-13 .. Plaintiff

AND

1. Maadaanu Joseph, (Died)

2. Maadaanu Sleevamma, S/o Maadaanu Joseph,

Aged about 55 years, Occ: House wife, r/o Plot No. 26, Bolliguda, Boduppal Gram Panchyat,

Ghatkesar Mandal, Ranga Reddy (Defendant No.2, L.R. of Defendant No.1) .. Defendants

This suit is coming up before me for final hearing in the presence of M/s P.Pavan Kumar, Advocates for Plaintiff and M/s M.Devender Reddy, Advocates for the Defendant and upon perusal of the material papers on record and the matter having been stood over for consideration till this day, this Court delivered the following :

JUDGMENT

1. This suit is filed by the plaintiff against defendant Nos. 1 and 2 for recovery of an amount of Rs. 6,23,220/- with future interest, on the foot of four promissory notes. The averments of the plaint in brief, are as follows:

2. The plaintiff is working as Production Manager in Sri Krishna

Pharmaceuticals, Uppal, Ranga Reddy District. The defendant No.1 IS engaged in the business of labour contracts and transportation with the employer of the plaintiff and the defendant No.2 is the wife of defendant

No.1. In view of the acquaintance between the plaintiff and defendant

No.1 since long time, on various occasions, the defendant No.1 approached the plaintiff, for loan for the purpose of development of the business and also for his treatment for paralysis and diabetis. The plaintiff pooled up money from many sources i.e., from his savings and borrowing from his friends and paid to the defendant No.1, an amount of Rs. 4 lacs, in the presence of witnesses, on different occasions.

3. On 19.02.2005, the plaintiff paid a sum of Rs. 1,30,000/- by way of cash to the defendant No.1, in the presence of witnesses, for the purpose of purchase of truck, for his transport business and on receipt of the same, the defendant no.1 executed demand promissory note, in his favour.

4. On 25.05.2005, the plaintiff paid a sum of Rs. 70,000/- by way of cash to defendant No.1 in the presence of witnesses, for the purpose of treatment of paralysis and diabetics. The defendant, on receipt of the same, executed a demand promissory note in favour of the plaintiff.

5. On 05.09.2005, the plaintiff paid a sum of Rs.1 lac, by way of cash to defendant No.1, in the presence of witnesses, for the purpose repairs to his truck. Defendant No.1 having received the same, executed a demand promissory note in his favour.

6. On 05.10.2005, the plaintiff paid a sum of Rs. 1 lac by way of cash to the defendant no.1, in the presence of witnesses, for the purpose of meeting his business exigencies. The defendant no.1, having received the same executed a demand promissory note, in favour of the plaintiff.

7. The defendant No.1, promised to repay the above amount with interest at the rate of 24% p.a. from the dates of receipt of the said loan amounts. Inspite of several requests and demands made by the plaintiff, in the first week of November 2006, the defendant No.1 failed to repay the said amount with interest. On 29.11.2006, when the plaintiff made his final demand, the defendant No.1, requested six months time to repay the said amount and also stated that he has constructed a house in plot no.

26 in sy. No. 68 part, situated at Boduppal Gram Panchayat, Ghatkesar

Mandal, Ranga Reddy District, with his own earnings, though the piece of land was purchased in the name of his wife i.e., defendant No.2. The defendant No.2 further stated that his wife was willing to stand as surety for the due repayment of the above amounts. Accordingly, both of them, offered the said house property, as security to the plaintiff, by jointly executing an agreement dated 29.11.2006, in the presence of witnesses, agreeing to repay the entire amount, with interest within six months.

Under the said agreement, both the defendants jointly offered the said house property and also furnished a true copy of sale deed dt 23.11.1999 bearing document no. 1928/1999. Both the defendants failed to keep up their promise, to repay the loan amount, within six months, as agreed, inspite of repeated requests and demands made by the plaintiff. The plaintiff got issued a legal notice dated 20.09.2007 to the defendants, through registered post with acknowledgment due, demanding the repayment of the loan amount, but the defendants managed to get the said notices, returned unserved.

8. The plaintiff is entitled to recover Rs. 6,23,220/- which includes

principal and interest at the rate of 24% p.a. from the date of promissory

note to till the date of suit and he is entitled for future interest at the rate of 24% p.a. from the defendants till the date of repayment jointly and severally.

9. The defendant No.2, filed her written statement, denying the averments of the plaint.

10. It is pleaded by the defendant No.2, that about three years ago, defendant no.1 deserted her and is living with his first wife and he is not in contact with her. The defendant no.1 is not even visiting her and looking after her requirements. The defendant no.1 and plaintiff, who are doing business jointly, in collusion with each other, planned to grab her house property and accordingly, filed the above suit. She never stood as surety for the due payment of Rs. 5,37,387/- as alleged by the plaintiff and never executed any undertaking/agreement on behalf of defendant no.1. The said undertaking/agreement, which contains her signature in Telugu and thumb impression of the defendant no.1, is a fabricated document as she being an illiterate does not sign and the defendant No.1 being a contractor and also an employee in a chemical company, knows writing and reading very well. Even the promissory notes, filed by the plaintiff are only with the thumb impressions of defendant no.1, instead of his signature.

11. It is further pleaded by defendant no.2 that defendant no.1 has spoiled her life, leaving her alone and at this juncture, she cannot even marry again. The house, which stands in her name was purchased with the help of her father and it was her father, who paid the entire sale consideration. The motive of the defendant no.1, is to grab her property, through one or the other way, which is the only source of her livelihood.

12. The defendant no.2, with the above contentions, prayed to dismiss the suit with exemplary costs.

13. Defendant no.1 remained exparte.

14. Basing on the above pleadings of both the parties, the following issues were framed:-

(i) Whether defendant no.2 is surety for loan obtained by defendant no.1?

(ii) Whether the defendant no.1 and plaintiff colluded together and got filed the suit?

(iii) Whether the plaintiff is entitled to recover the suit claim as prayed for?

(iv) To what relief?

15. As seen from the record, subsequent to filing of the suit, the defendant no.1 died and amendment of plaint is carried out, to the effect that the defendant no.2 is the only legal heir of the defendant no.1.

16. Having regard to the pleadings and evidence, adduced by both parties and demise of the defendant No.1 this Court found it necessary to recast the issues, and frame additional issue regarding necessary parties to the suit, while exercising its powers under Order 14 Rule 5 of CPC for effective adjudication of the case, as follows:

(i) Whether the suit promissory notes dated 19.02.2005; 25.05.2005; 15.09.2005 and 05.10.2005 are true valid and binding on the defendant

No.2?

(ii) Whether the defendant no.2 stood as surety to the loan amount, covered by promissory notes?

(iii) Whether the plaintiff is entitled for decree of recovery of the suit amount from defendant no.2 as prayed for ?

(iv) Whether there is collusion between the plaintiff and defendant no.1 in filing the present suit?

(v)

Additional Issue:

Whether the suit is bad for non-joinder of necessary parties, i.e., the legal heirs of defendant No.1? and

(v) To what relief?

Evidence on record is found sufficient to answer the additional issue.

17. The learned counsel for the plaintiff, filed his written arguments.

Heard arguments of the learned counsel for the defendant no.2.

18. The plaintiff, besides examining himself as PW1, relied on the testimony of PWs 2 to 4 and got marked Exs A1 to A8.

19. The defendant no.2 examined herself as DW1. No documents are marked on her behalf.

20. Issue No.1 to 3:- It is the case of plaintiff that himself and defendant no.1 are acquainted to each other since long time and due to the said acquaintance, when the defendant approached him for loan, to meet his business requirements and his treatment for paralysis and diabetics, he advanced Rs. 4 lacs to him on different occasions in the presence of witnesses, on his executing promissory notes and that inspite of several demands made by him, the defendant No.1 failed to repay the loan amount, but along with defendant no.2, who is his wife, executed an agreement, offering the immovable property standing in the name of defendant no.2, as security towards due repayment and agreeing to repay the loan amount within six months and that inspite of repeated demands, and legal notice got issued by him, the defendants, failed to repay the loan amount.

21. The Defendant no.2 contends that defendant no.1 by deserting her, long bank, living with his first wife, without looking after her necessities and without maintaining her and that the alleged undertaking/agreement, is a fabricated document, as she never stood as surety to the alleged loan amount, and that the plaintiff and defendant no.1, in collusion with each other, filed the present suit, only with an intention to grab her property, which was gifted by her father, and which is the only source of her livelihood.

22. The plaintiff, as PW1, having reiterated the contents of his plaint in his affidavit of examination in chief; got marked Exs A1 to A8, Ex A1 to A4 are the demand promissory notes dated 19.02.2005; 25.05.2005; 15.09.2005 and 05.10.2005, respectively, allegedly executed by defendant no.1 in his favour for Rs. 1,30,000/-; Rs. 70,000/-; Rs.

1,00,000/- and Rs.1,00,000/- respectively, totaling to Rs.4,00,000/-.

23. Ex A5 is the office copy of legal notice dt 20.09.2007, got issued by the plaintiff to the defendants. Ex A6 is the postal receipts and Exs A7 and A8 are returned postal envelopes. Even during the course of cross- examination of PW1, it is the plea of the defendant No.2, that the defendant no.1 was educated and he used to sign. It is the contention of the plaintiff, that the defendant no.1 was suffering from paralysis and the loan was obtained for his treatment also and as such, the promissory notes contain his thumb impressions. It is an undisputed fact that defendant no.1 was suffering from paralysis during his last days.

24. The plea introduced by the defendant no.2, for the first time during the cross-examination of plaintiff’s witnesses that about 15 to 20 persons were working under the defendant no.1 and defendant no.1 used to pay the salaries to the said persons is admitted by them. It is the contention of the defendant No.2 that there was no necessity for the defendant No.1 to obtain loan from the plaintiff. PWs 2 to 4 in their affidavits of examination in chief stated about the loan transactions, between the plaintiff and defendant no.1 for Rs. 4 lacs, under promissory notes. Though PWs 2 to 4 are not witnesses to all the promissory notes, they deposed that in their presence the said loan transactions took place. PW2 in his cross- examination, deposed that he was not present at the time of Ex A3 and A4 transactions. PW3 in his cross-examination, deposed that all the promissory notes, were scribed by him, and he was present at the time of said loan transactions. PW3 during the course of cross-examination, having admitted that defendant no.1 used to sign in his routine transactions, further stated that during his last days, he used to put his thumb impressions, in view of paralysis and he was attacked with paralysis in the year 2005 or 2006. PW4 having stated in his chief examination that the plaintiff advanced a sum of Rs. 4 lacs to defendant no.1 on execution of promissory notes by him, during the course of cross- examination deposed that he does not know about the plaintiff advancing the loan to the defendant no.1 and that he was not present at the time of four loan transactions between the plaintiff and defendant no.1, except one loan transaction for Rs. 1 lac. Though PWs 1 to 3 are cross-examined on behalf of defendant no.2, nothing contra could be elicited out regarding the loan transactions under Exs A1 to A4. The evidence of PWs 2 and 4, in their cross examination as discussed above does not touch the validity of Exs A1 to A4 as the defendant No.2 herself has not specifically denied the execution of promissory notes by the defendant No.1 in favour of the plaintiff. Even DW1 herself during the course of her cross-examination deposed that she does not know whether there was any loan transaction between the plaintiff and defendant No.1. There is no denial of Exs A1 to

A4 transactions, by the defendant No.2 in her affidavit, filed in lieu of examination in chief and her cross-examination. As seen from the record, the defendant No.1 remained ex parte and did not choose to contest the case, denying the case, set up by the plaintiff.

25. Though defendant no.2, pleaded in her written statement, and during the course of cross-examination of the plaintiff’s witnesses, that defendant No.1 was educated and he used to sign, in the absence of her adducing any evidence to that effect by producing any documents signed by him, more particularly in his last days, this Court has not seen any reason to disbelieve the version of plaintiff that defendant No.1 used to affix his thumb impression, in view of undisputed fact that he was suffering from paralysis.

26. The plaintiff by convincing oral and documentary evidence proved the execution of Exs A1 to A4 promissory notes, by defendant No.1 in favour of the plaintiff.

27. Now the point that arises for consideration is whether the plaintiff could establish that the defendant No.2 stood as surety to Exs.A1 to 4 loan transactions, by executing a document offering her property as security and whether Ex.A1 to A4 are binding on her.

28. The plaintiff, except pleading that the defendant no. 2 is guarantor and surety to the loan transactions, entered into by defendant no.1 with him for a sum of Rs. 4 lacs, by executing an undertaking/agreement in his favour, offering the immovable property standing in her name, did not choose to adduce any documentary evidence, to that effect. PW1 during the course of his cross-examination, admitted that Exs A1 to A4 do not contain the signatures or thumb impressions of defendant No.2.

Absolutely there is no suggestion given by the plaintiff to DW1, in her cross-examination about her execution of undertaking/agreement as alleged by him in the plaint, though she has categorically denied the same, in her affidavit of examination in chief. The plaintiff, during the course of cross-examination of DW1, for the first time, pleaded that a panchayat was held between the plaintiff and DW1 in the presence of elders, after death of defendant No.1, in which, she agreed to pay Rs. 3 lacs to the plaintiff. The plaintiff to substantiate the said plea of panchayat, has not adduced any oral or documentary evidence. In the absence of any evidence, to prove that the alleged property stands in the name of defendant No.2 and defendant No.2 executed document, offering her property as security towards loan under Ex.A1 to A4, the plaintiff miserably failed to prove that the defendant no.2, stood as surety to the loan amount of Rs. 4 lacs covered by Exs A1 to A4. Though the plaintiff by marking Exs.A1 to A4 and examining Pws 2 to 4 proved execution of

Exs.A1 to A4, failed to prove that they are binding on the defendant No.2, therefore he cannot be held to be entitled for recovery of suit amount from her. Accordingly these issues are answered.

29. Issue No.4 : The Defendant No.2, except pleading that the plaintiff and defendant No.1, in collusion with each other, to grab her property gifted by her father, filed the above suit, did not choose to adduce any evidence to that effect. Mere suggestion given to the witnesses of plaintiff, does not establish the plea of defendant no.2, in this regard. The defendant No.1 remaining exparte is not sufficient to prove the said plea.

As there is no evidence to prove the alleged collusion, it cannot be held that the plaintiff in collusion with defendant no.1 filed the present suit, to grab the alleged property of defendant no.2. Accordingly, this issued is answered.

30. Additional Issue:- It is an admitted fact that defendant no.1 got two wives and children through both the wives. The plaintiff, after demise of defendant no.1, for the reasons best known to him, amended the plaint, to the effect that defendant no.2 is the only legal heir of defendant no.1, who is already on record. PW1 in this regard, during the course of his cross- examination, has categorically admitted that defendant no.1 got two wives and Anthony Raju is the son of defendant no.2, and defendant no.1 got a son through his first wife and defendant no.1 was in contact with him till his death in the year 2009 and that he knows prior to 2007, that defendant no.1 got two wives. Above evidence of PW1, clinchingly establishes that having knowledge about the legal heirs of defendant no.1 i.e., his first wife and children though his first wife, he has failed to bring them on record as legal representatives of defendant no.1, for proper adjudication of the case. The defendant no.2, whom the plaintiff has shown as sole legal heir of the defendant no.1, cannot be said to be legal heir of defendant no.1, in view of admitted fact that during the subsistence of his first marriage, the defendant no.1 contracted second marriage with her. Absolutely there is no necessary party on record, for adjudication of the matter, in favour of the plaintiff, as he failed to prove that defendant no.2 is neither surety to the said loan transaction nor she is the legal heir of the defendant no.1.

Thus, the plaintiff is not entitled for any relief, in this case, even against the estate of defendant No.1 in the absence of bringing the legal heirs of defendant No.1 on record after his demise.

31. In view of the above, it has to be held that the suit is bad for non- joinder of necessary parties i.e., legal heirs of defendant no.1, to the suit.

Accordingly, this issue is answered.

32. Issue no.5 : In view of the discussion in Issue Nos. 1 to 4 and

additional issue, the suit of the plaintiff is liable to be dismissed.

33. In the result, the suit of the plaintiff is dismissed. No costs.

Dictated to Personal Assistant, transcribed by him, corrected and pronounced by me in

open Court, on this the 30th day of April, 2016.

IXAddl.SeniorCivil

Judge,

FACIAddl.SeniorCivilJudge, Ranga Reddy District

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants

1. PW1: K.Shiva Kumar DW1 :M.Sleevamma

2. PW2 : P.Ravinder

3. PW3 : Ch.Krishna Reddy

4. PW4 : R.Narsi Reddy

EXHIBITS MARKED

For Plaintiff:

1Ex A 1:Demand promissory note and receipt dt 19.02.2005 2Ex A 2:Demand promissory note and receipt dt 25.05.2005 3Ex A 3: Demand promissory note and receipt dt 05.09.2005 4Ex A 4:Demand promissory note and receipt dt 05.10.2005 5Ex A 5:Office copy of legal notice dt 20.09.2007 6Ex A 6:Two postal receipts dt 21.09.2007 7Ex A 7:Unserved RPAD dt 21.09.2007 8Ex A 8:Unserved RPAd dt 21.09.2007

For Defendants

Nil

IXAddl. Senior Civil

Judge, FAC I

Addl. Senior Civil Judge, Ranga Reddy District

1 Of 11 OS 2309/2006

IX ASCJ RR DT.

IN THE COURT OF THE IX ADDL. SENIOR CIVIL JUDGE

AT L.B. NAGAR, R.R. DISTRICT.

Present: P. RAJU,

IX Addl. Senior Civil Judge, L.B. Nagar, R.R.District

Dated this the 31st day of January, 2019.

O.S NO. 2309/2006

BETWEEN:

Smt., Bussu Prasanna, wife of Anjan Reddy, Aged about 33 yrs, Occ: Agriculture, R/o. Imamguda Village, Maheshwaram Mandal,

Ranga Reddy District. ... Plaintiff.

AND

1. The Sarpanch Gram Panchayat Thukkuguda Village, Maheshwaram Mandal, R.R. District Rep. By Smt., Komireddy Subhadra, wife of Narsimha Reddy, Aged about 46 yrs, Occ: Surpanch, Thukkuguda Village, Maheshwaram Mandal, R.R. District.

2. K. Narsimha Reddy, so of late K. Yella Reddy, Aged about 47 yrs, Occ: Agriculture.

3. D. Pochi Reddy, son of Late Veera Reddy (died per Lrs).

4. Shri R. Mallesh, son of Chandraiah, Aged about 35 yrs, Occ: Agriculture, R/o. Sardarnagar Village, Maheshwaram Mandal, Ranga Reddy District.

5. P. Kubera, son of late P. Narayan, Aged about 48 yrs, Occ: Business, R/o. Thukkuguda Village, Maheshwaram Mandal, Ranga Reddy District.

6. D. Mangamma, wife of D. Pochi Reddy, Aged about 40 yrs, Occ: Housewife.

7. D. Sandeep, son of D. Pochi Reddy, Aged about 24 yrs, Occ: Student.

8. D. Satish Reddy, son of D. Pochi Reddy, Aged about 22 yrs, Occ: Student.

9. D. Sudheer Reddy, son of D. Pochi Reddy, Aged about 19 years, Occ: Student, Resp/Def. No. 6 to 9 are R/o. Thukkuguda Village, Maheshwaram Mandal, Ranga Reddy District. … Defendants 2 Of 11 OS 2309/2006

IX ASCJ RR DT.

(Defendants 6 to 9 are added as per orders passed in I.A. No. 259/2017 in O.S No. 2309/2006 dated 28-11-2018 as legal representatives of deceased defendant no.,3)

This suit is coming up for final hearing before the court on 31-01- 2019 in the presence of Sri. K. Janardhan Reddy, Advocate for the plaintiff and of Sri. Chandrashekar Reddy, Advocate for the defendants no., 2 to 5 and the defendant no., 1 was set exparte and upon perusing the material papers on record and upon hearing both counsel and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. This suit is filed by the plaintiff against the defendants for grant of a decree of perpetual injunction restraining the defendants, their sub- ordinates, agents and servants from causing any sort of interference in peaceful possession and construction of the plaintiff over the schedule property.

2.The suit schedule property is as follows:

SCHEDULE OF PROPERTY

All that piece and parcel of open plot bearing No. 63 part admeasuring 228.5 square yards in survey no., 322/2 situated at

Thukkuguda Village, Maheshwaram Mandal, Ranga Reddy District and bounded by:

North: 100’ wide Road (Srisailam to Hyd).

South: 33’ wide road.

East: Plot No. 63 part of Chandarakala.

West: Plot No. 63 part.

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3.(i) The brief averments of the plaint filed by the plaintiff , against the defendants, are that: The plaintiff is the absolute owner and possessor of the schedule property, having purchased the same from

Md., Mohisin and others under registered sale deed bearing document no., 6240/2005 dated 26-10-2005, by paying sale consideration amount, and obtained possession of it. From the date of purchase, the plaintiff has been enjoying the schedule property as absolute owner and without interference from anybody.

(ii) Originally Smt., Hussain Begum, Mohd., Mohsin and Md.,

Umar were the absolute owners of the land in Survey nos., 319/1, 320, 320/1, 321/2 and 322/2, totally admeasuring acres 4.33 guntas at

Tukkuguda Village, Maheshwaram Mandal, Ranga Reddy District and they executed registered sale deed in favour of K. Venkata Swamy

Goud and others.

(iii) After purchase, the plaintiff obtained permission from the gram panchayat for construction ,on 28-06-2006, along with sanction plan by producing the relevant documents before the gram panchayat.

Though, the defendants have no concern with the schedule property, they have interfered with the possession and enjoyment of the plaintiff over the schedule property ,on 10-10-2006. The plaintiff, when approached the police, Pahadishareef, did not take any action against the defendants stating that it is civil litigation. Therefore, it is prayed to grant of relief by the plaintiff.

4.(i) In view of death of defendant No. 3, defendant nos., 6 to 9 are brought on record as his legal representatives.

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(ii) (a) Though defendants nos., 6 to 9 are set exparte in the suit, defendant no., 3 filed his written statement, which was adopted by defendant nos., 2, 4 and 9, denying the averments of the plaint filed by plaintiff and alleging that the suit filed by the plaintiff is not maintainable either in law or on facts.

(b) It is further submitted in written statement by the defendants that the real owner of the land in survey nos., 314/2, 319/2/1, 322/1 and 322/2 of Mankhal village, Maheshwaram Mandal, Ranga Reddy

District are the family members of Iftikhar Mehdi Khan. Except the land in survey no., 322/2, the pattadars have gifted the said other property in favour of Nayar Fathima Khatoon ,under registered Gift

Deed bearing Document no., 2525/1987 dated 13-04-1987 to an extent of acres 6.01 guntas. But, the said Nayar Fathima Khatoon had alienated the said land to one one Thoufiq Mehdi Khan under registered sale deed bearing document no., 1181/1996 dated 28-02- 1996. In turn the Thoufiq Mehdi Khan alienated the said lands, including the land in survey no., 322/2 ,admeasuring acres 0.12 guntas to one V. Rama Krishna, M. Damohdar Reddy and M. Yadaiah through registered sale deed bearing document no., 2048/1997 dated 31-07-1997. But, the said Thoufiq Mehdi Khan had no right to execute the sale deed in respect of the land in survey no., 322/2 and, therefore, the said registered sale deed was brought to the existence with mala-fide intention. The said Rama Krishna and others also executed a registered sale deed in respect of the land in survey no., 322/1 in favour of Syed Fazil. The said document is void in the eye of law. The said Syed Fazil along with one Mohd., Mohsini executed the 5 Of 11 OS 2309/2006

IX ASCJ RR DT.

agreement of sale cum General Power of Attorney document bearing no., 3454/2005 dated 30-06-2005 in favour of K. Venkata Swamy Goud and others, in respect of 484 square yards, out of the land in survey no., 322/2, though they have nothing to do with the said land. Thus, the documents executed in favour of K. Venkata Swamy Goud and others are sham documents, in collusion with Sarpanch of Tukkuguda village, with an intention to grab the schedule property.

(c) The defendants nos., 2 to 5 purchased the land in survey no., 322/2 to an extent of 0.16 guntas from its original owners Iftikhar

Mehdi Khan for lawful and valid consideration and they are in possession and enjoyment of the said land as bona-fide purchasers.

The court fee paid by the plaintiff is not correct. Therefore, it is prayed for dismissal of the suit ,by awarding compensatory costs of Rs., 10,000/- to the defendants.

5.In view of the rival meeting of parties of the suit, the following issues are framed for trial:

I) Whether the plaintiff is in possession and enjoyment of the

plaint schedule property by the date of filing of suit?

II) Whether the plaintiff is entitled perpetual injunction as

prayed for?

III) Whether the suit is properly valued for the purpose of

court fee?

IV) To what relief?

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6.In support of the case of the plaintiff, the plaintiff examined herself as PW 1 and got marked Exs., A1 to A7 documentary evidence.

7.After closure of the evidence of the plaintiff, defendants nos., 2 , 4 and 5 other defendants did not adduce any evidence and ,therefore, the evidence of the defendants was treated as closed on 13-12-2018.

8.After hearing arguments for the learned counsel for the plaintiff, since there is no representation for defendants, the arguments on behalf of the defendants was treated as heard and suit is posted today for judgment.

9. The learned counsel for the plaintiff, in support of the case of the plaintiff for grant of the relief, submitting that in the absence of evidence by the defendants, the written statement filed by the defendants is of no helpful to the defendants, relied on the judgment in the case of Vidhyadhar Vs. Manikrao and Another (1)( 1999

(3) ALT (1) (SC) ) and S. Gangadhar Goud Vs. Chikkela Laxman

and Others (2) (2009 (3) ALT 498).

10. (a) ISSUE NO. III:

Whether the suit is properly valued for the purpose of

court fee?

(i) The relief claimed by the plaintiff PW 1 is for grant of perpetual injunction and ,therefore, she valued the suit schedule property, for the purpose of court fee and jurisdiction as Rs.1,50,000/- ,notionally, and paid Rs., 3,926/- as court fee under Section 26 of 7 Of 11 OS 2309/2006

IX ASCJ RR DT.

Andhra Pradesh Court Fees and Suits Valuation Act.

(ii) Though the defendants pleaded in their written statement that the court fee paid by the plaintiff/PW 1 is not proper, they did not adduce any evidence in that regard. Therefore, it cannot be said that the court fee paid by the plaintiff PW 1 is not proper. The issue is ,accordingly, answered against the defendants and in favour of the plaintiff.

(b) ISSUE NOS., (I) and (II):

I) Whether the plaintiff is in possession and enjoyment of

the plaint schedule property by the date of filing of suit?

II) Whether the plaintiff is entitled perpetual injunction as

prayed for?

(i) The pleading of the plaintiff and her version as PW 1 is that she is the absolute owner and possessor of the schedule property.

Originally the land in survey nos., 319/1, 320, 321/1. 321/2 and 322/2, total admeasuring acres 4.33 guntas, situated at Thukkuguda Village of

Maheshwaram Mandal, was owned and possessed by Smt., Hussain

Begum, Mohd., Mohsin and Md., Umar, along with their General Power of Attorney holders, under Ex., A2, have executed sale deed, under

Ex., A1 in her favour, over the schedule property. Initially the original owners have executed a registered sale deed in favour of the General

Power of Attorney holders of them, over total extent of acres 2.19 guntas in survey nos., 319/1 and 320. Ex., A3 is the certified copy of

General Power of Attorney executed by Md., Mohsin and Syed Fazil in 8 Of 11 OS 2309/2006

IX ASCJ RR DT.

favour of K. Venkat Swamy Goud and Others and the General power of

Attorney holders of them is in respect of an area of 484 square yards in survey no., 322/2. Ex., A4 is the certified copy of registered sale deed executed by the original owners, in favour of the General Power of Attorney holders, in respect of the land in an extent of acres 2.10 guntas, in survey nos., 319/1, 320, 320/1, 321/2 and 322/2. The extent ,under Ex., A4, so far as survey no., 322/2 is acres 0.02 guntas.

(ii) The plaintiff/PW 1 obtained permission, under Ex., A5, with sanctioned plan, from the concerned authority for construction over the schedule property by paying challan, under Ex. A6 and Ex. A7 is five photographs showing the schedule property.

(iii) Even according to the written statement of the defendants, there is no dispute with regard to possession of the property in survey no., 322/2 by the original owners. The defendants did not produce any document, in support of their pleading. Further at one time it is pleaded in the written statement by the defendants that the entire extent of land in survey no., 322/2 acres 0.12 guntas and at another time it is stated that it is acres 0.16 guntas. The schedule property, purchased under Ex, A-1, is only an extent of 228.5 square yards.

(iv) Though, the defendants filed their written statement that the schedule property, in survey no., 322/2 was also sold by Nayar Fathima

Khatoon, when she got gift deed in her favour only pertaining to survey nos., 314/2, 319/21 and 322/1, admeasuring acres 6.30 guntas of

Mankhal village. But, the defendants did not adduce any evidence in 9 Of 11 OS 2309/2006

IX ASCJ RR DT.

support of their pleadings. Mere filing of pleadings would not be sufficient in a case. The pleadings, at the most, would help the court to identify the area of controversy and to frame issues. Once issues are framed, the respective parties have to adduce evidence, in support of, or in opposition to the issues. Even where the defendant is confident of the weakness of the plaintiff’s case, he has to enter the witness box, at least, to speak to the contents of the written statement and failure, in this regard, is bound to entail in serious consequences. Thus, a presumption can be drawn against the defendants that what they pleaded, in their written statement, is not correct.

(v) Therefore in view of the version of PW 1, supported by Exs.,

A1 to A7, since the defendants did not adduce any evidence in support of their pleading, this court is of the opinion that the plaintiff/PW 1 is in possession and enjoyment of the plaint schedule property, as on the date of filing the suit and ,therefore, she is entitled for grant of the relief as prayed for. Issues nos., (I) and (II) are , accordingly, answered in favour of the plaintiff against the defendants.

(c) ISSUE NO. IV:

(IV) To what relief?

In view of the discussion of issues nos., 1 to 3, holding them against the defendants and in favour of the plaintiff/PW 1, this court is of the opinion that PW 1 is entitled for grant of the relief, as prayed for.

10 Of 11 OS 2309/2006

IX ASCJ RR DT.

11.In the result, the suit of the plaintiff/PW 1 is decreed with costs granting a decree of perpetual injunction, restraining the defendants, their sub-ordinates, agents, servants etcetera from causing any sort of interference in peaceful possession and construction of the plaintiff over the schedule property.

(Dictated to personal assistant, transcribed by her, corrected and

pronounced by me in the open Court on this 31st day of January, 2019).

IX Addl., Senior Civil Judge L.B. Nagar, R.R.District.

Appendix of Evidence

Witnesses Examined For

Plaintiff: Defendants:

PW 1 Smt., B. Prasanna. - Nil -

Exhibits Marked For

Plaintiff:-

Ex. A1: Original sale deed bearing Doc. No. 6204/2005,

dated 26-10-2005.

Ex. A2: Certified copy of sale deed bearing document No. 3444/2005

dated 30-06-2005.

Ex. A3: Certified copy of Agreement of Sale cum G.P.A bearing document No. 3454/2005 dated 30-06-2005.

Ex. A4: Certified copy of Agreement of Sale cum G.P.A, bearing document No. 3338/2004 dated 20-10-2004.

Ex.A5 : Original Sanction order along with plan dated 28-06-2010.

Ex. A6: Original challan dated 24-06-2006.

Ex. A7: Photographs (5 in Nos.) along with negatives.

11 Of 11 OS 2309/2006

IX ASCJ RR DT.

Exhibits Marked For

Defendants:

- Nil -

IX ADDl. Senior Civil Judge L.B. Nagar, R.R.District.

IN THE COURT OF THE IX ASSISTANT SESSIONS JUDGE

AT L.B. NAGAR, R.R. DISTRICT

PRESENT: P.RAJU,

IX ASSISTANT SESSIONS JUDGE, L.B. NAGAR, R.R.DIST.

Thursday, this the [17th] day of January, 2019

SESSIONS CASE No. 430 of 2017

(P.R.C.No.81/2016 on the file of the II Metropolitan Magistrate at L.B. Nagar, R.R.Dist. connected with Crime No. 1507/2013 of L.B., nagar Police Station)

BETWEEN:

The State: being represented by the

Sub-Inspector of Police,

L.B.nagar Police Station. ...COMPLAINANT

A N D

1. Gopal.

2. Fathima Begum W/o Md. Khurshid, Aged : 25 years, Occ : Catering Woman, Caste : Muslim, R/o Balapur Colony, Meerpet, Saroornagar, Ranga Reddy District.

3.Kethavath Shanthi W/o Late Shanker, Aged 45 years, Age 45 years, Caste ST, Occ : Labourer, R/o H. No. 3-6-32,

4.Md. Saleem, S/o Babu Khan, Aged : 25 years, Occ : car Driver, R/o Nallavally, Jinnaram Mandal, Medak District.

5.Manchukonda Naveen Kumar S/o Narsimha Rao, Age 32 years, Caste : Vysya, R/o H.No. 15-1-474, Begumbazar.

...ACCUSED

( The case against accused nos., 1 and 3 is split up and numbered as CC no, 437/2015 on the file III Metropolitan Magisgrate, Cyberabad at L.B., nagar.) (The case against accused no.,4 is abated on 17-5-2017) ( The case against accused nos., 2 and 5 is only committed to the Court of

Sessions)

This Sessions case coming on 17 -01-2019 before me for final hearing in the presence of Sri Shiiva Kumar, Additional Public Prosecutor

for the Complainant and Sri Abdul Sami, Advocate for accused nos., 2 and

5 and, after hearing both sides, on perusing the material on record, the matter having stood over to this day for consideration, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, L.B., nagar police station laid charge- sheet against accused in Crime No.1507/2013 for the offence punishable under Sections 370 and 370 A (2) of the Indian Penal Code (for short ‘the

IPC’) and Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act 1956 (for short “the Act”) to punish the accused, according to law, alleging that:

On receiving credible information, on 29-12-2013 at 1410 hours, the

Sub Inspector of Police, L.B., nagar - B.Sai Prakash Goud, along with his staff, after obtaining permission from the Assistant Commissioner of Police,

L.B., nagar Division, along with two mediators, raided brothel house at

H.No., 3-6-362, Janapriya colony, L.B., nagar. Accused no.,1 was found sitting in front of the house. On knocking the door of the house, accused no.,4 opened the door of the house and stated that accused no.,1 and himself were indulging in prostitution by engaging the girls. Pursuant to the confession of accused nos., 1 and 4 ,before the mediators, that they brought K. Lalitha for doing prostitution by engaging customers, the Sub

Inspector of Police seized Rs., 2000/-, one Nokia cellphone and two deluxe condoms and Rs., 200/- from the possession of accused nos., 1 and 4 respectively , under cover of confessional and seizure panchanama and

Rs., 1,000/- from the victim girl, affixed panch chits to the said property. At another room, accused no.,5 opened the door and confessed that he was called by accused no.,2 for indulging prostitution and Rs.,1,300/- and one

Samsung cellphone were seized from him possession of accused no.,5 and

Rs., 300/- and one Nokia Cellphone from the possession of accused no.,2 in the presence of the same mediator and brought accused nos., 2 to 5 and the victim to the police station.

2.(a) Basing on the confessional panchanama conducted, the Sub

Inspector of police E. Srinivas Reddy registered a case in Crime no., 1507/2013 by issuing First Information Report. During the course of investigation, the Sub Inspector – M. Kashivishwanath examined the witnesses, affected the arrest of accused nos., 2 to 5 and sent them to the

Court for judicial remand. Subsequently, the Sub Inspector of Police laid charge sheet against the accused, showing accused no.,1 as absconding, after completion of the investigation, after depositing the case property in the case.

3.Taking cognizance and committal of the case: The learned II

Metropolitan Magistrate, Cyberabad at L.B., nagar, Ranga Reddy District initially took cognizance of the offence punishable under Sections 3, 4 and 5 of the Act. But, after allowing Crl. M.P. no., 1547/2016 on 22-9-2016, the offence under Section 370 of the IPC was taken congnizance against accused no.,2 along with Sections 2,4 and 5 of the Act and the offence under Section 370 A(2) of the IPC was taken on file against accused nos., 4 and 5. Since the offence punishable under Sections 370 and 370 A (2) of the IPC., are exclusively triable by Court of Sessions, Ranga Reddy District, the learned Magistrate registered the charge-sheet as PRC no., 81/2016 and copies of all documents were furnished to the accused, on their appearance, as required under Section 208 of the Criminal Procedure Code (for short ‘the Cr.P.C.,). The learned Magistrate committed the case ,under

Section 209 of the Cr.P.C., vide separate Order, dated 17-05-2017 and ,thereafter, the Hon'ble Metropolitan Sessions Judge, at Ranga Reddy

District, made over this case to this Court , being the Assistant Sessions

Court, for trial and disposal according to law, after registering it as SC No., 430/2017.

4.Appearance of accused and opening the case under Section 226 of the Cr.P.C. : After receipt of the Court summons, the accused appeared

before this Court and engaged Sri Abdul Saami , Advocate, to defend him.

Thereafter, the learned Additional Public Prosecutor opened the case by describing the charge brought against the accused and also about the evidence that is going to be let-in, to prove the guilt of the accused.

5.Framing of charge:- Upon hearing the learned Additional Public

Prosecutor as well as the learned defence counsel and considering the entire material available on record, this court prima-facie found that the accused had committed the offence punishable under Sections 370 and 370 A(2) of the I.P.C.,and Sections 3, 4 and 5 of the Act. Hence, the charge for the said offence was framed against the accused, under

Section 228 of the Cr.P.C., read over and explained to them in the Telugu language, for which they denied the same, pleaded not guilty and claimed to be tried. Hence, the case was stood posted for prosecution evidence, after fixing the schedule for trial under Section 230 of the Cr.P.C.

6.Prosecution Evidence ,under Section 231 of the Cr.P.C. : In support of its case, the prosecution examined PWs., 1 to 4 and got marked Exs., P-1 to P-4, apart from exhibiting MOs., 1 to 4. The witnesses shown in the list of witnesses, J. Narayana , Police Constable, V.Janardhan Rao, and E.

Srinivas Reddy, Inspector of Police (Lws., 2,6 and 8) are given up by the learned Additional Public Prosecutor and report is filed that the victim

K.Lalitha is reported to have died.

7.Examination of the accused under Section 313 of the Cr.P.C. : After closure of the prosecution evidence, the accused were examined under

Section 313 of the Cr.P.C., by putting the incriminating circumstances, appearing in the evidence of prosecution witnesses (PWs-1 to 4) against them, to which they denied and reported no defence evidence on their behalf.

8.Arguments:- After completion of the arguments of the learned

Additional Public Prosecutor and the learned Counsel for the accused, on

11–1-2019, the case is posted to today for judgment.

9.Points for determination are:

(i) Whether the prosecution did prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Sections 370 and 370 A(2) of the I.P.C.,and Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act 1956 (for short “the Act”).

(ii) To what finding?

10. (I) POINT No. (i): (a) (i) For proving the offence under

Sections 370, 370 A(2) of the I.P.C., and Sections 3, 4 and 5 of

the Act, the prosecution must prove the following ingredients:

1) Whether the accused engaged K.Lalitha for sexual exploitation and did trafficking ?

2) Whether the accused indulged in keeping or allowing premises as brothel house or habitually found in the company of sex workers or living on that earnings or detaining any person to carry prostitution or such premises within the notified and prohibited area ?

(ii) It is settled principle of law that Sections 3 and 4 of the Act no way applicable so far as the customers are concerned. If any of them indulge in sexual enjoyment with the sex worker ,respectively, and for any of them keeping or allowing premises as brothel house or habitually found in the company of sex workers or living on that earnings or detaining any person to carry prostitution or such premises within the notified and prohibited area, it attracts any of Sections 3 to 11 of the Act, besides

Sections 370 and 370-A of the I.P.C.

(b)(i) The version of PWS 1 and 2 is that they found that the accused were running brothel house at H.No., 3-6-362, Jana Priya Colony L.B., nagar , engaging ladies for sexual exploitation, and doing prostitution by procuring the victim girl K. Lalitha ,on 29-12-2013, at the premises.

(ii) But, the victim girl K. Lalitha is not examined by the prosecution as she is reported to have died. Except PW3, the other witnesses examined by the prosecution are officials witnesses. The version of PW-1 is that he prepared Ex., P-1 and brought the accused and the property Mos 1 to 4 to the police station and handed over to the Inspector of police. But, according to PW-4, after issuing Ex., P-3 by the Inspector of Police, after recording the statements of the witnesses, he effected arrest of the accused in the case, which clearly shows that though the accused were made available, at the time of Ex., P-1, their arrest is not made. Therefore, the possibility that since no offence is made by the accused their arrest is not made at the time of Ex., P-1. The owner of the premises is not examined by the prosecution.

(iii) Pws-1 testified that no document is filed to show that he was on duty on the date of raid and he did not examine the neighbors to the premises and did not collect any document ownership document of the premises or rental agreement. PW-1 also did not collect any document to show that

Nokia and Sam-sung cellphones are belonging to accused nos.,2 and 4 respectively. Ex., P1 is not containing the signatures of accused nos.,2 and 5 to show that the property under it is recovered from their possession.

There is no signature of Pws-2 on Ex., P-1. Thus, unless the victim in the case is examined by the prosecution, it cannot be said that prostitution was going on at the premises and it was conducted by accused no2., and accused no.,5 is customer for sexual exploitation with K.Lalitha.

(iv)The version of PW-3 ,mediator to Ex., P-1, is that he was called to police station and his signature Ex., P-2 was obtained by the police.

Accused nos., 2 and 5 are not known to PW-3 , though his version is that two female and one male person were taken from the opposite house of

Jayendra. Therefore, it cannot be said that Mos-1 to 6 are the property recovered from the exclusive possession of the accused under Ex., P-1, in the presence of PW-3 and another mediator, pursuant to the confession of the accused.

(vi)For the foregoing discussion , this court is of the opinion that since the alleged victim K.Lalitha is reported to have died, Ex., P-1 did not contain the signature of PWs 2, PW-4 is not the eye witness in the case and that PW-3 did not support the prosecution case and the owner of the premises is not examined by the prosecution, it is highly unsafe to rely on the sole testimony of PW-1, to connect the accused with charges leveled against the accused , particularly, when the arrest of the accused is not made immediately after conducting Ex., P-1, giving doubt about the case of the prosecution. Therefore, it cannot be said that the accused engaged

K. Lalitha, organized brothel ,at the premises, and conducted prostitution and that Mos-1 to 4 were seized from the exclusive possession of the accused under Ex., P-1.

(vii) Hence, this court is opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and that ,therefore, the accused are entitled for acquittal on the ground of benefit of doubt.

(c)In the result, accused nos., 2 and 5 are found not guilty for the offence punishable under Sections 370 and 370A(2) of the I.P.C.,and

Sections 3, 4 and 5 of the Act and are ,accordingly, acquitted under

Section 235 (1) of the Code. The bail bonds of accused shall stand canceled, after appeal time is over. MO-3 cash property of Rs., 4,000/- deposited as FDR no., 657012 - and Mos 1 and 2 cellphones ,deposited through C.P. no., 13 of 2018, shall be confiscated to the state as they are not claimed by the accused and MO-4 and the simcards of Mos 1 and 2 shall be destroyed , after appeal time is over.

[ Prepared, corrected and pronounced by me in the open Court, on this the 17st day of January, 2019]

ASSISTANT SESSIONS JUDGE,

L.B. NAGAR, R.R. DIST.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW 1: B. Sai Prakash. -None-

PW 2 : R. Ashalatha.

PW 3 : G. Eshwar.

PW 4 : K. Kasi Vishwanath, Inspector of police.

DOCUMENTS MARKED FOR

PROSECUTION DEFENCE

Ex., P-1 : Panchanama. - Nil -

Ex., P-2 : Signature of PW-3 on Ex.P-1.

Ex., P-3 : First Information Report

Ex., P-4 : Permission proceedings from Assistant Commissioner of Police dated 29-12-2013.

Material Objects Marked

M.O. 1 : Nokia Phone

M.O.2 : Samsung Phone

M.O.3 : FDR No.657012 for Rs.4,000/-

M.O.4 : Three Condomes

ASSISTANT SESSIONS JUDGE,

L.B., NAGAR, R.R DISTRICT.

IN THE COURT OF THE IX ASSISTANT SESSIONS JUDGE

AT L.B. NAGAR, R.R. DISTRICT

PRESENT: P.RAJU,

IX ASSISTANT SESSIONS JUDGE, L.B. NAGAR, R.R.DIST.

Friday, this the [11th] day of January, 2019

SESSIONS CASE No. 1002 of 2018

(P.R.C.No.156/2018 on the file of the XI Metropolitan Magistrate at L.B. Nagar, R.R.Dist. connected with Crime No. 68/2018 of Chaitanyapuri Police Station)

BETWEEN:

The State: being represented by the

Sub-Inspector of Police,

Chaitanyapuri Police Station. ...COMPLAINANT

A N D

A1. Balagoni Srikanth, son of Raju,

Aged: 24 yrs, Occ: Auto driver,

R/o. H.No. 16-3-674, Kaladera, Chenchalguda,

Chadarghat, Hyderabad.

A2. Sukka Pruthvi Raju, son of Late Yadaiah,

Aged: 25 yrs, Occ: Catering work,

R/o. H.No. 16-8-120/B/1, Kaladera,

Chaderghat, Hyderabad.

A3. Gundepaka Raj Kumar, son of Kishan,

Aged: 26 yrs, Occ: Pvt. Work,

R/o. H.No. 16-8-96, Kaladera, Chenchalguda,

Chadarghat, Hyderabad.

A4. Kongara Ramu, son of Darshan,

Aged: 27 yrs, Occ: Salesman in Bharath Motors at Narayanaguda Traffic P.S, R/o. H.No. 16-8-277/2,

Kabuthar building, Kaladera, Chadarghat, Hyderabad.

A5. Munigala Sai Kumar, son of Siddulu,

Age: 25 yrs, Occ: Pvt. Job, R/o. H.No. 16-3-678,

Kaladera, Chenchalguda, Chadarghat, Hyderabad. ...ACCUSED No. 1 to 5.

This Sessions case coming on 11 -01-2019 before me for final hearing in the presence of Sri Shiiva Kumar, Additional Public Prosecutor

for the Complainant and Sri Venkateswarlu, Advocate for accused 1 to 5

and, after hearing both sides, on perusing the material on record, the matter having stood over to this day for consideration, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Chaitanyapuri police station laid charge- sheet against accused no., 1 to 5 in Crime No. 68/2018 for the offence punishable under Section 395 of the Indian Penal Code (for short ‘the IPC’) to punish the accused, according to law, alleging that:

The complainant dropped his friend Suman at Blue Dolphin

Swimming Pool, Saroornagar tank ,on his motorcycle bearing no., TS 11-EH 4397, on 11-02-2018 at about 01:50 hours, and while he was proceeding to his house, at Omni Hospital when he was consuming cigarette, in the mean time, unknown persons went to him. They took him near Saidabad road, beat him and robbed net cash of Rs.6,600/- from him ,at about 01:30 hours, and fled away from the place.

2.(a) Basing on the complaint lodged by Addakula Praveen, the

Inspecator of Police, Police Station, Chaitanyapuri has registered a case in

Crime no., 68/2018 by issuing First Information Report. During the course of investigation, he examined the witnesses, apprehended accused nos., 1 to 3, on 13-04-2018, and , pursuant their confession, seized cash of Rs.1,500/- from accused no.,1, Rs.1000/- from accused no., 2 and Rs.500/- from accused no., 3, all rupees 500 notes and Yamaha FZ bike from the possession of them. Thereafter, accused nos., 4 and A5 were also apprehended and, pursuant their confession, 15 sheep ,pertaining to Crime no., 278/2018 of Meerpet Police Station, were seized from their possession under the cover of confessional and seizure panchanama.

(b) Accused nos.,1 to A5 were arrested and they were sent to court for judicial remand. Case property pertaining to the case was deposited

before the court. After completion of investigation, the Inspector of Police,

Police Station Chaitanyapuri laid charge sheet against accused nos., 1 to

A5 .

3.Taking cognizance and committal of the case: The learned XI

Metropolitan Magistrate, Cyberabad at L.B., nagar, Ranga Reddy District took cognizance of the offence punishable under Section 395 of the IPC.

Since the offence punishable under Section 395 of the IPC., is exclusively triable by Court of Sessions, Ranga Reddy District, the learned Magistrate registered the charge-sheet as PRC no., 156/2018 and copies of all documents were furnished to the accused, on their appearance, as required under Section 208 of the Criminal Procedure Code (for short ‘the

Cr.P.C.,). The learned Magistrate committed the case ,under Section 209 of the Cr.P.C., vide separate Order, dated 26-10-2018 and ,thereafter, the

Hon'ble Metropolitan Sessions Judge, at Ranga Reddy District, made over

this case to this Court , being the Assistant Sessions Court, for trial and disposal according to law, after registering it as SC No., 1002/2018.

4.Appearance of accused and opening the case under section 226 of the Cr.P.C. : After receipt of the Court summons, accused nos., 1, 3 to 5 appeared before this Court and accused no.,2 produced before the Court from the Central Prison, Cherlapally and engaged Sri Venkateswarlu,

Advocate, to defend them. Thereafter, the learned Additional Public

Prosecutor opened the case by describing the charge brought against the accused and also about the evidence that is going to be let-in, to prove the guilt of the accused.

5.Framing of charge:- Upon hearing the learned Additional Public

Prosecutor as well as the learned defence counsel and considering the entire material available on record, this court prima-facie found that the accused had committed the offence punishable under Section 395 of the

IPC. Hence, the charge for the said offence was framed against the accused, under Section 228 of the Cr.P.C., read over and explained to them in the Telugu language, for which they denied the same, pleaded not guilty and claimed to be tried. Hence, the case was stood posted for prosecution evidence, after fixing the schedule for trial under Section 230 of the Cr.P.C.

6.Prosecution Evidence ,under Section 231 of the Cr.P.C. : In support of its case, the prosecution examined PWs., 1 to 5 and got marked Exs., P-1 to P-20, apart from exhibiting MOs., 1 and 2. The witnesses shown in the list of witnesses, Junis Ram Sing, Kotta Das, T. Suhasini, XIII Metropolitan

Magistrate and S.Saidaiah (Lws., 3,4 ,7 and 8) are given up by the learned

Additional Public Prosecutor.

7.Examination of the accused under Section 313 of the Cr.P.C. : After closure of the prosecution evidence, the accused were examined under

Section 313 of the Cr.P.C., by putting the incriminating circumstances, appearing in the evidence of prosecution witnesses (PWs-1 to 5) against them, to which they denied and reported no defence evidence on their behalf.

8.Arguments:- After completion of the arguments of the learned

Additional Public Prosecutor and the learned Counsel for the accused,

today, the judgment in the case is pronounced.

9.Points for determination are:

(i) Whether the prosecution did prove the guilt of accused 1 to 5 beyond all reasonable doubt for the offence punishable under Section 395 of the I.P.C?

(ii) To what finding?

10. (I) POINT No. (i):

(a) (i) For proving the offence Section 395 of the I.P.C., the prosecution must prove the following ingredients; “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more every person so committing, attempting or aiding, is said to commit “dacoity”.”

Essential ingredients of Section 391 of the IPC., are:

1. Five or more persons must act in association,

2. Such act must be robbery or attempt to commit robbery,

(b)So far as commission of offence of accused nos., 4 and 5 are concerned it is pertaining to Crime no., 278/2018 of Meerpet Police

Station and the confessional and recovery panchanama ,pertaining to the said case, is not filed before the court. Thus, the present case is against accused nos., 1 to 3 .

(c)There is no identification of accused nos., 1 to 3 in the version of the defacto complainant/PW 1( A.Praveen ). PW 1 denied about the identification of culprits ,in the case, in the Test Identification parade. PW 2 (D. Suman) is not an eye witness in the case. The version of PW-2 is that

PW 1 informed him that some unknown persons robbed cash of Rs.6,600/- from him.

(d)Excepting admitting signatures under Ex., P2 to P15, there is nothing in the version of Pws., 3 and 4 for connecting the accused with Ex., P19 relevant portion of confession and seizure panchanama of M.Os 1 and 2.

The is also nothing in the version of Pws., 3 and 4 about the identification of the culprits in the case. Thus, the only evidence left over is that of PW 5.

(e)(i) The incident in the case took place on 10-02-2018, as stated under Ex., P1, by PW 1. But the recovery by PW 5 of M.Os 1 and 2 is on 13-04-2018.

(ii) Section 114(a) of the Indian Evidence Act provides that a man who is in possession of stolen goods, soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for possession.

(iii) Since, in the present case, the alleged theft took place on 10- 02-2018 and recovery ,under Ex., P19, is 13-04-2018, it cannot be said that the recovery of M.Os., 1 and 2 is soon after the theft for raising the presumption under Section 114(a) of the Indian Evidence Act. Thus, in the absence of corroboration to the version of PW 5 by Pws., 3 and 4 ,with regard to his conducting Ex., P19 for recovery of M.Os., 1 and 2, it is highly unsafe to rely on the testimony of PW-5 to connect accused nos., 1 to 3 with the guilt, particularly, when Ex., P-19 is conducted at the Police

Station.

(iii) Hence, this court is opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and ,therefore, the accused are entitled for acquittal.

(f)In the result, accused nos., 1 to 5 are found not guilty for the offence punishable under Section 395 of the Indian Penal Code and they are ,accordingly, acquitted under Section 235 (1) of the Code. The bail bonds of accused shall stand canceled, after appeal time is over. MO-1 cash property of Rs., 3,000/- ,deposited through C.P. no., 2 of 2019, shall be returned to PW-1 (A. Praveen), after appeal time is over. MO-2 ,unnumbered Yamaha “FZ” bike , engine number G3J3EO21-9845 and chasis number MEIRG 4412J0053764, deposited through C.P. no., 2/2019, which is not claimed by the accused, shall be confiscated to the State, after appeal time is over. Accused no.,2 shall be set at liberty, if he is not required in any other case.

[ Partly prepared and partly dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the open Court, on this the 11st day of January, 2019]

ASSISTANT SESSIONS JUDGE,

L.B. NAGAR, R.R. DIST.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW 1: A. Praveen. -None-

PW 2 : D.Suman.

PW 3 : E.Rakesh.

PW 4 : Ch. Abinay Reddy.

PW 5 : M. Mahesh, Inspector of police.

DOCUMENTS MARKED FOR

PROSECUTION DEFENCE

Ex., P-1 : Complaint of PW-1. - Nil -

Ex., P-2 to P-8 : Signatures of PW-3 on Ex., P-19.

Ex., P-9 to P-15 : Signatures of PW-4 on Ex., P-19.

Ex., P-16 : Endorsement on Ex., P-1 by Circle Inspector S. Saidaiah.

Ex., P-17 : Signature of Circle Inspector S.Saidaiah on F.I.R.

Ex., P-18 : Signature of Circle Inspector S.Saidaiah on Crime Detail Form.

Ex., P-19 : Relevant portion of confession and seizure panchanama.

Ex., P-20 : Section alteration memorandum.

Material Objects Marked

M.O. 1 : Cash of Rs., 3,000/-.

M.O.2 : Yamaha FZ bike bearing chasis number MVIRG4412J0053764.

ASSISTANT SESSIONS JUDGE,

L.B., NAGAR, R.R DISTRICT.

IN THE COURT OF THE IX ASSISTANT SESSIONS JUDGE

AT L.B. NAGAR, R.R. DISTRICT

PRESENT: P.RAJU,

IX ASSISTANT SESSIONS JUDGE, L.B. NAGAR, R.R.DIST.

Friday, this the [11th] day of January, 2019

SESSIONS CASE No. 1002 of 2018

(P.R.C.No.156/2018 on the file of the XI Metropolitan Magistrate at L.B. Nagar, R.R.Dist. connected with Crime No. 68/2018 of Chaitanyapuri Police Station)

BETWEEN:

The State: being represented by the

Sub-Inspector of Police,

Chaitanyapuri Police Station. ...COMPLAINANT

A N D

A1. Balagoni Srikanth, son of Raju,

Aged: 24 yrs, Occ: Auto driver,

R/o. H.No. 16-3-674, Kaladera, Chenchalguda,

Chadarghat, Hyderabad.

A2. Sukka Pruthvi Raju, son of Late Yadaiah,

Aged: 25 yrs, Occ: Catering work,

R/o. H.No. 16-8-120/B/1, Kaladera,

Chaderghat, Hyderabad.

A3. Gundepaka Raj Kumar, son of Kishan,

Aged: 26 yrs, Occ: Pvt. Work,

R/o. H.No. 16-8-96, Kaladera, Chenchalguda,

Chadarghat, Hyderabad.

A4. Kongara Ramu, son of Darshan,

Aged: 27 yrs, Occ: Salesman in Bharath Motors at Narayanaguda Traffic P.S, R/o. H.No. 16-8-277/2,

Kabuthar building, Kaladera, Chadarghat, Hyderabad.

A5. Munigala Sai Kumar, son of Siddulu,

Age: 25 yrs, Occ: Pvt. Job, R/o. H.No. 16-3-678,

Kaladera, Chenchalguda, Chadarghat, Hyderabad. ...ACCUSED No. 1 to 5.

This Sessions case coming on 11 -01-2019 before me for final hearing in the presence of Sri Shiiva Kumar, Additional Public Prosecutor

for the Complainant and Sri Venkateswarlu, Advocate for accused 1 to 5

and, after hearing both sides, on perusing the material on record, the matter having stood over to this day for consideration, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Chaitanyapuri police station laid charge- sheet against accused no., 1 to 5 in Crime No. 68/2018 for the offence punishable under Section 395 of the Indian Penal Code (for short ‘the IPC’) to punish the accused, according to law, alleging that:

The complainant dropped his friend Suman at Blue Dolphin

Swimming Pool, Saroornagar tank ,on his motorcycle bearing no., TS 11-EH 4397, on 11-02-2018 at about 01:50 hours, and while he was proceeding to his house, at Omni Hospital when he was consuming cigarette, in the mean time, unknown persons went to him. They took him near Saidabad road, beat him and robbed net cash of Rs.6,600/- from him ,at about 01:30 hours, and fled away from the place.

2.(a) Basing on the complaint lodged by Addakula Praveen, the

Inspecator of Police, Police Station, Chaitanyapuri has registered a case in

Crime no., 68/2018 by issuing First Information Report. During the course of investigation, he examined the witnesses, apprehended accused nos., 1 to 3, on 13-04-2018, and , pursuant their confession, seized cash of Rs.1,500/- from accused no.,1, Rs.1000/- from accused no., 2 and Rs.500/- from accused no., 3, all rupees 500 notes and Yamaha FZ bike from the possession of them. Thereafter, accused nos., 4 and A5 were also apprehended and, pursuant their confession, 15 sheep ,pertaining to Crime no., 278/2018 of Meerpet Police Station, were seized from their possession under the cover of confessional and seizure panchanama.

(b) Accused nos.,1 to A5 were arrested and they were sent to court for judicial remand. Case property pertaining to the case was deposited

before the court. After completion of investigation, the Inspector of Police,

Police Station Chaitanyapuri laid charge sheet against accused nos., 1 to

A5 .

3.Taking cognizance and committal of the case: The learned XI

Metropolitan Magistrate, Cyberabad at L.B., nagar, Ranga Reddy District took cognizance of the offence punishable under Section 395 of the IPC.

Since the offence punishable under Section 395 of the IPC., is exclusively triable by Court of Sessions, Ranga Reddy District, the learned Magistrate registered the charge-sheet as PRC no., 156/2018 and copies of all documents were furnished to the accused, on their appearance, as required under Section 208 of the Criminal Procedure Code (for short ‘the

Cr.P.C.,). The learned Magistrate committed the case ,under Section 209 of the Cr.P.C., vide separate Order, dated 26-10-2018 and ,thereafter, the

Hon'ble Metropolitan Sessions Judge, at Ranga Reddy District, made over

this case to this Court , being the Assistant Sessions Court, for trial and disposal according to law, after registering it as SC No., 1002/2018.

4.Appearance of accused and opening the case under section 226 of the Cr.P.C. : After receipt of the Court summons, accused nos., 1, 3 to 5 appeared before this Court and accused no.,2 produced before the Court from the Central Prison, Cherlapally and engaged Sri Venkateswarlu,

Advocate, to defend them. Thereafter, the learned Additional Public

Prosecutor opened the case by describing the charge brought against the accused and also about the evidence that is going to be let-in, to prove the guilt of the accused.

5.Framing of charge:- Upon hearing the learned Additional Public

Prosecutor as well as the learned defence counsel and considering the entire material available on record, this court prima-facie found that the accused had committed the offence punishable under Section 395 of the

IPC. Hence, the charge for the said offence was framed against the accused, under Section 228 of the Cr.P.C., read over and explained to them in the Telugu language, for which they denied the same, pleaded not guilty and claimed to be tried. Hence, the case was stood posted for prosecution evidence, after fixing the schedule for trial under Section 230 of the Cr.P.C.

6.Prosecution Evidence ,under Section 231 of the Cr.P.C. : In support of its case, the prosecution examined PWs., 1 to 5 and got marked Exs., P-1 to P-20, apart from exhibiting MOs., 1 and 2. The witnesses shown in the list of witnesses, Junis Ram Sing, Kotta Das, T. Suhasini, XIII Metropolitan

Magistrate and S.Saidaiah (Lws., 3,4 ,7 and 8) are given up by the learned

Additional Public Prosecutor.

7.Examination of the accused under Section 313 of the Cr.P.C. : After closure of the prosecution evidence, the accused were examined under

Section 313 of the Cr.P.C., by putting the incriminating circumstances, appearing in the evidence of prosecution witnesses (PWs-1 to 5) against them, to which they denied and reported no defence evidence on their behalf.

8.Arguments:- After completion of the arguments of the learned

Additional Public Prosecutor and the learned Counsel for the accused,

today, the judgment in the case is pronounced.

9.Points for determination are:

(i) Whether the prosecution did prove the guilt of accused 1 to 5 beyond all reasonable doubt for the offence punishable under Section 395 of the I.P.C?

(ii) To what finding?

10. (I) POINT No. (i):

(a) (i) For proving the offence Section 395 of the I.P.C., the prosecution must prove the following ingredients; “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more every person so committing, attempting or aiding, is said to commit “dacoity”.”

Essential ingredients of Section 391 of the IPC., are:

1. Five or more persons must act in association,

2. Such act must be robbery or attempt to commit robbery,

(b)So far as commission of offence of accused nos., 4 and 5 are concerned it is pertaining to Crime no., 278/2018 of Meerpet Police

Station and the confessional and recovery panchanama ,pertaining to the said case, is not filed before the court. Thus, the present case is against accused nos., 1 to 3 .

(c)There is no identification of accused nos., 1 to 3 in the version of the defacto complainant/PW 1( A.Praveen ). PW 1 denied about the identification of culprits ,in the case, in the Test Identification parade. PW 2 (D. Suman) is not an eye witness in the case. The version of PW-2 is that

PW 1 informed him that some unknown persons robbed cash of Rs.6,600/- from him.

(d)Excepting admitting signatures under Ex., P2 to P15, there is nothing in the version of Pws., 3 and 4 for connecting the accused with Ex., P19 relevant portion of confession and seizure panchanama of M.Os 1 and 2.

The is also nothing in the version of Pws., 3 and 4 about the identification of the culprits in the case. Thus, the only evidence left over is that of PW 5.

(e)(i) The incident in the case took place on 10-02-2018, as stated under Ex., P1, by PW 1. But the recovery by PW 5 of M.Os 1 and 2 is on 13-04-2018.

(ii) Section 114(a) of the Indian Evidence Act provides that a man who is in possession of stolen goods, soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for possession.

(iii) Since, in the present case, the alleged theft took place on 10- 02-2018 and recovery ,under Ex., P19, is 13-04-2018, it cannot be said that the recovery of M.Os., 1 and 2 is soon after the theft for raising the presumption under Section 114(a) of the Indian Evidence Act. Thus, in the absence of corroboration to the version of PW 5 by Pws., 3 and 4 ,with regard to his conducting Ex., P19 for recovery of M.Os., 1 and 2, it is highly unsafe to rely on the testimony of PW-5 to connect accused nos., 1 to 3 with the guilt, particularly, when Ex., P-19 is conducted at the Police

Station.

(iii) Hence, this court is opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and ,therefore, the accused are entitled for acquittal.

(f)In the result, accused nos., 1 to 5 are found not guilty for the offence punishable under Section 395 of the Indian Penal Code and they are ,accordingly, acquitted under Section 235 (1) of the Code. The bail bonds of accused shall stand canceled, after appeal time is over. MO-1 cash property of Rs., 3,000/- ,deposited through C.P. no., 2 of 2019, shall be returned to PW-1 (A. Praveen), after appeal time is over. MO-2 ,unnumbered Yamaha “FZ” bike , engine number G3J3EO21-9845 and chasis number MEIRG 4412J0053764, deposited through C.P. no., 2/2019, which is not claimed by the accused, shall be confiscated to the State, after appeal time is over. Accused no.,2 shall be set at liberty, if he is not required in any other case.

[ Partly prepared and partly dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the open Court, on this the 11st day of January, 2019]

ASSISTANT SESSIONS JUDGE,

L.B. NAGAR, R.R. DIST.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW 1: A. Praveen. -None-

PW 2 : D.Suman.

PW 3 : E.Rakesh.

PW 4 : Ch. Abinay Reddy.

PW 5 : M. Mahesh, Inspector of police.

DOCUMENTS MARKED FOR

PROSECUTION DEFENCE

Ex., P-1 : Complaint of PW-1. - Nil -

Ex., P-2 to P-8 : Signatures of PW-3 on Ex., P-19.

Ex., P-9 to P-15 : Signatures of PW-4 on Ex., P-19.

Ex., P-16 : Endorsement on Ex., P-1 by Circle Inspector S. Saidaiah.

Ex., P-17 : Signature of Circle Inspector S.Saidaiah on F.I.R.

Ex., P-18 : Signature of Circle Inspector S.Saidaiah on Crime Detail Form.

Ex., P-19 : Relevant portion of confession and seizure panchanama.

Ex., P-20 : Section alteration memorandum.

Material Objects Marked

M.O. 1 : Cash of Rs., 3,000/-.

M.O.2 : Yamaha FZ bike bearing chasis number MVIRG4412J0053764.

ASSISTANT SESSIONS JUDGE,

L.B., NAGAR, R.R DISTRICT.