Sri.P.Pavan Kumar

C.C.No.138 of 2018 Page No.1

IN THE COURT OF PRL. JUNIOR CIVIL JUDGE-CUM- VII ADDL.

METROPOLITAN MAGISTRATE: AT MEDCHAL: M.M.DISTRICT

PRESENT: SRI. P.PAVAN KUMAR

VII ADDL. METROPOLITAN

MAGISTRATE AT MEDCHAL

FRIDAY, DATED THIS THE 23rdDAY OF FEBRUARY, 2024

C.C . No. 138 of 2018

Between:-

Mr. Sai Siva Kanth Karra, S/o. Parasuramaiah Karra, aged about 32 years, Director of M/s. Anamayaya Fire Systems Pvt. Ltd, residing at Plot No.168, Lane No.7, Phase-1, Saket Residential Colony, Kapra, ECIL, Medchal- Malkajgiri District, Telangana State - 500 062. …Complainant A N D

Mr Ande Venkata Ramanaiah, S/o. Ande Lachaiah aged about 47 yrs, Managing Director M/s. Anamayaya Fire Systems Pvt. Ltd., Residing at # 4, 3 rd Cross, Jayashree Lay out, Varanasi Road, Ramamurthy Nagar, Bengaluru - 560 016. Karnataka. … Accused

This case is coming for final hearing before me in the presence of Sri. Goddindla Venu Gopal Reddy, Advocate for the complainant and Sri. Kiran Kumar Goud, Advocate for accused, upon perusing the material on record, upon hearing both sides and having stood over for consideration till this day, the Court delivered the following:-

:: J U D G M E N T ::

1.This is the complaint filed under section 200 Cr.P.C, for the offence under section 138 of Negotiable Instrument Act, 1881 (Hereinafter will be referred as

N.I Act).

2.Brief facts of the complaint is as follows:

The complainant and accused are acquainted with each other for 10 years.

Accused is the proprietor of Proprietorship Firm of M/s. Anamayaya Fire

Protection Company. As the accused was under financial crises in the year 2014, he approached the complainant to support him financially to complete his ongoing project as stated in Memorandum of Understanding which was executed

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C.C.No.138 of 2018 Page No.2 on 21.04.2015 between the accused and complainant, Mrs. Jyothi Aruna and

Mr. Ankulaiah Jyothi. Original copy of Memorandum of Understanding dated 21.04.2015 is with the possession of accused. On 15.06. 2016, an agreement cum understanding was executed by the accused in favour of complainant,

Wherein accused had undertaken to pay interest 2% per month for the borrowed amount of Rs. 25,00,000/- towards hand loan. The borrowed amount is as follows :

1. Cheque bearing No.532548, dtd. 08.11.2014 for an amount of Rs.5,00,000/- drawn on State Bank of India, Saket Road, Branch office, Kapra.

2. Cheque bearing No.532549, dtd. 11.11.2014 for an amount of Rs.5,00,000/- drawn on State Bank of India, Saket Road, Branch office, Kapra.

3. Cheque bearing No.532550, dtd. 11.11.2014 for an amount of Rs.5,00,000/- drawn on State Bank of India, Saket Road, Branch office, Kapra.

4. Cheque bearing No.532552, dtd. 26.11.2014 for an amount of Rs.5,00,000/- drawn on State Bank of India, Saket Road, Branch office, Kapra.

5. Cheque bearing No.532553, dtd. 11.12.2014 for an amount of Rs.5,00,000/- drawn on State Bank of India, Saket Road, Branch office, Kapra.

Total amount of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only)

However, when accused was not remitting the borrowed amount, complainant demanded accused for several times to repay the same with interest. However, accused had executed another Memorandum of

Understanding on 08.03.2017 in favour of complainant, wherein the accused have mentioned the particulars of borrowed amount and further he had undertaken that he would deposit agreed interest in bank account of complainant every month regularly till date of clearance of liability. However, accused neither deposited the interest nor had remitted the principle amount since January' 2015 . On several pursuance, accused had issued the cheque bearing No. 613454 for

Rs.25,00,000/- dated 04.12.2017, drawn on Punjab National Bank, Gandhi

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C.C.No.138 of 2018 Page No.3

Nagar, Nellore (A.P) cheque, which was dropped in drop box of the complainant

Bank on 08.12.2017 which was dishonored due to 'Insufficient Funds'. Cheque return memo was issued on 11.12.2017, the same was intimated to the accused by the complainant. On such intimation, accused had requested the complainant to represent the cheque again on 14.12.2017, as per his request, the complainant had dropped the cheque with his banker which however was also returned on 18.12.2017 due to insufficient funds. Thereafter, accused was not responding to the calls of the complainant. Thus, complainant got issued the statutory notice dated 07.01.2018 to accused through his counsel by way of e- mail and also by way of registered post with acknowledgment due. Despite the demand of the complainant, accused never came to pay money. However, had issued reply notice dated 01.01.2017 through his e-mail. In reply, complainant had issued rejoinder on 26.01.2018 by enclosing all the documents which was served upon the accused and acknowledgment was also received. Thus, after the accrual of cause of action, this complaint was filed to punish the accused for the offence under section 138 N.I Act.

3.On perusal of record, this court took cognizance for the offence U/sec.

138.N.I Act against the accused and on appearance, copies of documents were furnished to him.

4.Accused was examined U/Sec.251 Cr.P.C., for the offence U/s.138 of N.I

Act, for which he pleaded not guilty and claimed to be tried.

5. Now the point that arise for determination is whether Accused is liable for the offence U/sec. 138 NI Act?

6.The complainant examined himself as PW-1 by filing affidavit in chief in lieu of chief examination in chief by reiterating the averments of the complaint further marked Ex.A1 to Ex.A30 on his behalf(Though in criminal cases, the

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C.C.No.138 of 2018 Page No.4 marking required to be given is “P” series however “A” series was given inadvertently. However in cross examination 'P 'series was referred which should be understood and read as 'A' series for all practical purposes) (complaint would be referred as Pw1 hereinafter) 6.1Certain portion of cross examination of PW-1 is relevant which is required to be extracted. PW-1 submits that he had presented Ex.P1 through his account.

He denied the suggestion that date and amount on the cheque are not filled by the accused. He denies the suggestion that date, amount and name was wrongly filled by him for wrongful gain. He admits that accused had given a reply notice.

He submits that, in reply notice, accused have averred that Pw-1 had taken the stamp papers illegally and further that due to difference in the company transactions PW1 had forcefully obtained the cheques. PW-1 submits that cheques are discharged from the accused personal account. However suggestions was given that it was discharged from the company account which was denied. He submits that the Memorandum of Understanding is with the possession of accused. however, denies the suggestions that the Memorandum of Understanding is with the PW-1 and as it is against his case, thus he did not present the same. A suggestion is given that Pw-1 had agreed for investment of

Rs.25,00,000/- in the Company which was denied. He admits that Ex.P11 was purchased by the accused and there is no signature of Pw-1 on Ex.P11 and was executed at saket colony. He denies the suggestion that accused had never executed Ex.P11 and he was forcefully made to execute at police station. He denies the suggestion of Ex.P3 is a created document. He asserts that he knows the contents of Ex.P13. However, he had not signed on it as he did not approve it. Ex.P14 and Ex.P15 are prepared as per PW-1 agreement. However, when some of the terms in it is not as per his terms, as such, he did not sign. That

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C.C.No.138 of 2018 Page No.5 signature on Ex.P24 belongs to him. He admits that accused was running proprietary Firm in the name of M/s. Anamayaya Fire Systems Private Limited.

That he is the founder of M/s. Anamayaya Fire Systems Private Limited. Accused is the Managing Director of the said company. PW-1 was the Director of the company until 2021 and thereafter voluntarily resigned. He agreed to invest an amount of Rs.75,00,000/- in O.D. Witness adds Company agreed to repay within two years which Company failed to, as such his house was auctioned. He denies the suggestion that he was supposed to invest Rs.1,00,00,000/- in the company and for his default in his investment company incurred losses and that with influence of his Father and police, he had obtained cheques, promissory notes, stamp papers forcefully from the accused.

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

U/Sec.313 Cr.P.C., by explaining the incriminating circumstances appeared against him in the evidence of prosecution witnesses, he denied the same.

Further had not adduced any oral evidence.

8.Written arguments filed by the complainant:

Written arguments filed by the complainant relying upon Ex.P1, which is the subject matter of case. Further had taken indulgence of this court to Ex.P11 where the accused admitted that he had taken an amount of Rs.25,00,000/- as hand loan. Further, that Ex.P1 was issued as per Ex.P15. In Ex.P15 admittedly

Ex.P1 was issued for security purpose. However, admission in Ex.P11 proves that Ex.P1 was issued with with debt behind it. Further relied by the decision of

Hon'ble Supreme Court in Dasharathbhai Trikambhai Patel Vs. Hitesh

Mahendrabhai Patel & Another = CDJ 2022 SC 1121 =2022 (3) ALT (Crl) 303.

wherein point No.30 is as follows

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30. In view of the discussion above, we summarise our findings below:

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the

Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the ‘legally enforceable debt’ on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonored for insufficient funds; and

(v) The notice demanding the payment of the ‘said amount of money’ has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under

Section 138, the validity of the form of the notice need not be decided.

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C.C.No.138 of 2018 Page No.7

Further, relied upon the decision of Hon'ble Supreme court between

Rangappa Vs. Sri Mohan, AIR 2010 SC 1898, wherein para No.14 & 15

observed as follows:

14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by

Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.

Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments.

While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an

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C.C.No.138 of 2018 Page No.8 evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'.

Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.

15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. Furthermore, the instructions to `stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the

Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the

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C.C.No.138 of 2018 Page No.9 complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.

9. Defence arguments: On the other hand, the learned defence counsel putforth his arguments on the point of rebuttal of presumptions as is available under section 118 NI Act and 114 of Indian Evidence Act. Further was relying on the point of limitation. In saying so, the learned defence counsel argued that, what is illegal as per Limitation Act, where the complaint is barred to take any action upon the alleged cheque which was issued after limitation of three years, the same cannot be made legal by filing complaint under section 138 N.I Act. The advance as was alleged made on 08.11.2014. In such case, when the cheque issued on 04.11.2017, which is three years after the initial debt as mentioned above, is primafacie out of limitation and is barred by limitation. Thus, there is no legally enforceable debt as can be presumed. Further, relied by the covenants of

Ex.P15, where it is admittedly mentioned that the cheque Ex.P1 was issued for security purpose. Under such circumstances, when the cheque which is issued for security purpose cannot be subject matter of this complaint as there is no accrual of cause of action at all. In making such submission, the learned defence counsel submits that, he had rebuttal the presumption as was available to Pw1 under section 118 and 139 of N.I Act by bringing probabilities in the form of limitation and in the form of security as is obvious from Ex.P15, thus the burden should shifts on Pw1 to prove the debt.

9.1.Further, argues that Ex.P1 is not a cross cheque. on the reverse side of cheque, there shall be signature of the drawer. Thus, the bankers had miserably

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C.C.No.138 of 2018 Page No.10 failed in their duty to notice the same which makes it not legally enforceable debt.

Further, submits that, as per Sec. 138 -b N .I Act, complainant shall demand the amount as mentioned in the cheuqe but had demanded an amount of Rs 5000/- in excess as legal charges. Further submits that in Ex.P12 there is no signature of accused for the first four pages and it is a created documents. Now when it is evident that the cheque as alleged is issued for security purpose, it shall not be presented unless there is auction of property of the complainant which was subject matter of the O.D(overdraft) filed by the accused. After O.D obtained by the company, complainant invested his property by mortgaging it for security purpose and thus obtained O.D. From the above submitted version, the learned defence counsel argued that, Pw1 failed to prove debt or any other liability as such accused to be acquitted.

10. Point: Having heard both sides versions, the point which is to be determined so to find whether accused is guilty of offence U/s 138 NI Act, it is required to be determined whether accused had issued Ex.P1 for discharge of legally enforceable debt or liability?

11. To prove, PW-1 after having adduced his chief examination, further marked several documents as mentioned (i.e) Ex.P1 to Ex.P30. Before going ahead, it is to be noted that, there is no dispute with regard to the statutory notice and limitation so far with regard to cause of action which arose for the reason Ex.P1 was returned unpaid as envisaged under S 138 NI Act. However, certain concern was raised by learned defence counsel with regard to the validity of Ex P1 submitting that the alleged debt is time barred as per Limitation act which although will be discussed in the later part of this judgement.

12.Now the document as we see upon which this complaint is filed is Ex.P1 which is original cheque for Rs. 25 lakhs dated 04.12.2017. As per the PW-1

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C.C.No.138 of 2018 Page No.11 cross examination, the defence as can be manifested is the cheque was given without writing name, date and amount. However was denied by Pw1, yet let assume that it was given without name date and amount, will that by itself is fatal?. To understand the same, I find it is relevant to extract Sec 20 of NI Act which is as follows:

20. Inchoate stamped instruments.—Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.

12.1 I would like to rely by the decision ofHon'ble Supreme court in

CRIMINAL APPEAL NOS.230-231 OF 2019 (@ SLP(CRL ) NOS. 9334-35 OF

2018) between Bir Singh vs Mukesh Kumar in para no 37 and 38 observed

as follows:

37. A meaningful reading of the provisions of the Negotiable

Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the

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C.C.No.138 of 2018 Page No.12 drawer. If the cheque is otherwise valid, the penal provisions of

Section 138 would be attracted.

38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque.

The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

12.2 Thus, from the above, what can be manifested is, if drawer gives an cheque duly signed, he is not just giving the cheque but also giving authority to fill the same, which in the given case, I believe that the accused has given authority to the Pw1 to fill the cheque as admittedly accused had given the cheque. Although it was not the version of Pw1. However, even by assuming that the blank cheque was given after having signed, there is every right to the Pw1 to fill the same. whatever amount which is shown in the cheque will be subject matter for determination although with initial presumption that payee if holder in due course is entitled to recover the same. In saying so, onus would still be on the accused to prove that the cheque was not for the amount claimed.

13. The paramount document which are required to be considered in this case are Ex.P11, Ex.P12, Ex.P14 and Ex.P15 respectively. In Ex.P11, accused had undertaken to pay Rs. 25 lakhs which was taken by him as hand loan by way of 5 cheques as mentioned above in pleadings of Pw1. There is no denial that the accused had not utilized those 5 cheque by not encashing it. Here denial is with regard to legally enforceable debt. in so saying, it is defence version, that, it was an amount which is invested by the Pw1 in the business of accused. Further from Ex.P11, it can be manifested that accused availed O.D loan facility of Rs. 75 lakhs for his business improvement against the house property of the Pw1.

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However, when the Pw1 desired to redeem the property, the accused discussed the same with all the directors and finally decided to release the property at the earliest by December 2016. Further had under taken to pay

Rs. 25 lakhs as mentioned above.

Ex.P12 is an agreement cum undertaking dated 08.03.2017, where there a recital that “in continuation of earlier of Memorandum of understanding dated 21.04.2015 and agreement cum under taking given by the accused dated 10.06.2016 which is Ex. P11” the present Memorandum of understanding is executed on 08.03.2017, further explaining that he is a managing director, had availed O.D facility of Rs.75 lakhs against the house property of the Pw1.

Further, admitting him to have taken Rs.25 lakhs as hand loan by way of cheques as already described above for his business purpose from the Pw1.

Further arrived upon that once OD is cleared from the Canara Bank and Rs.25 lakhs is paid to Pw1 along with interest, Pw1 shall resign from the position of director and shall have no share in the said company.

Further, a resolution of withdrawal of directorship of Pw1 and Jyothi

Ankulaiah vide Ex.A13. However, there is no signature of Pw1 in Ex.P13 though he was shown as one of the Director.

Ex.P14 and Ex.P15 are the Memorandum of Understanding on 26.05.2017 by accused himself undertaking that the loan against his property is in process.

That immediately thereafter, O.D of Canara Bank will be cleared and house property of Pw1 will be released. Further, Memorandum of understanding in

Ex.P15 which is in pursuance of Ex.P14, also manifest that, for the security purpose, Ex,P1 which is cheque No. 613454 was handed over to the Pw1.

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C.C.No.138 of 2018 Page No.14

Ex.P14 and Ex.P15 are executed between the Pw1 and accused however, Pw1 was not the signatory to the document.

14.The crux of the case with regard to the existence of debt or liability can be comprehended from Ex.P11, Ex.P12, Ex.P14 and Ex.P15. It is the defence version that these documents were obtained forcefully by putting accused in pressure at the police station at the influence of Pw1’s father who is an retired

IAS officer. As can be perused from the averment, admittedly Ex P11 , 12, 14 and 15 were executed in between 2016 and 2017. There is quite considerable time since then until filing of this compliant which happened somewhere in the year 2018. Had the said documents was obtained forcibly, accused should have taken steps during said time. He was not powerless to approach police if not the court alleging if there was any extortion played upon him. Without doing so, taking such defence at an advanced stage of this case i.e during the cross examination, which perhaps is a thought which I believe scripted to evade the wrath of liability provided in law. There is no conduct which would be obvious from accused for this court to believe that the said documents are forcefully executed.

15.Further, It is not the case of the accused that he had not taken any amount of Rs.25 lakhs, but is only that said Rs.25 lakhs was an investment. Had it was true, there would not be any admission of accused in Ex.P11. Ex.P12, Ex.P14 and Ex.P15, admitting his liability toward the Pw1. There is no Iota of the document or oral evidence of accused which is impressive enough for this court to believe that said amount covered under Ex.P1 was part of Pw1’s investment.

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16.Besides the above, there is one interest defence which is taken by accused where he submits that this cheque i.e Ex.P1 was issued for security purpose and it should not have brought under the ambit of section 138 N.I Act.

That, any cheque which is issued for security purpose should not be used by the payee, and if he does so, no liability can be gained under section 138 N.I Act.

This court does not subscribe such interpretation. Certainly that as per Ex.P15 which is an evident, that, Ex.P1 issued for security purpose, but, we should not forget the fact, that, by virtue of Ex.P11, accused admitted his liability for Rs.25 lakhs, further admitted in Ex.P12 also. Through Ex.P15 as stated above that

Ex.P1 was issued for the purpose of security. However, Ex.P1 will mature the moment when Pw1 perceived the fact that accused is not standing upon his promise to repay his money which gives him a legal right to present the cheque for encashment.

17.The words “security purpose” cannot be interpreted under all circumstances as presupposed not with any debt or liability. From the circumstances in the given case where there is debt in the beginning and a cheque is given later though for security purpose, which however will mature opening right to the payee to present the cheque for encashment the moment drawer fails to stand by his promise of repayment. There would also be circumstances where a cheque would be issued merely for the purpose of security without having any debt or liability preceding it. Only under those circumstances, when cheque issued for security purpose will not attract the wrath of Sec 138 of NI Act.

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C.C.No.138 of 2018 Page No.16 17.1 I would like to rely by the decision of Honble Supreme court in

CRIMINAL APPEAL NOS. 12691270 OF 2021 (Arising out of SLP(Criminal)

No.252253/2020) Sripati Singh (since deceased) Through His Son Gaurav

Singh vs The State of Jharkhand & Anr., where the case facts are almost akin to the facts in the given case. I would like to extract certain paras from the said precedent which would be a beacon for us to determine the issue at hand.

8. Mr. Keshav Murthy, learned counsel for respondent No.2 would contend that the learned Judicial Magistrate without application of mind to the fact situation had taken cognizance and issued summons and had not appropriately considered the case put forth by the respondent No.2 seeking discharge. He would contend that the High Court on the other hand, has taken note of the entire gamut of the case and has arrived at the conclusion that the offence alleged both under Section 420

IPC and Section 138 of the N.I. Act has not been made out. It is contended that the claim for the sum of Rs. 2 crores as made in the complaint is without basis. It is his case that the respondent No.2 has issued a comprehensive reply disputing the claim put forth by the appellant. It is contended that from the very complaint and the statement of witnesses recorded by the learned Judicial Magistrate it is evident that no criminal offence is made out in the instant case. Even if the case as put forth in the complaint is taken note, at best the transaction can be considered as an advancement of loan for business purpose and even if it is assumed that the said amount was not repaid it would only give rise to civil liability and the appellants could have only filed a civil suit for recovery of the loan. The statement of the witnesses, more particularly the daughter of the complainant would indicate the longstanding relationship between the parties and also the monetary transaction which in any event does not constitute a criminal offence. It is contended that under any circumstance, the offence as alleged under Section 420 of IPC cannot be sustained. In sofar as the offence alleged against the

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respondent No.2 under section 138 of N.I. Act, the same

would also not be sustainable when the complainant

himself has relied on the loan agreement wherein

reference is made to the cheque being issued as security

for the loan. The learned counsel contends that the High

Court in fact has taken note of these aspects, proceeded in its correct perspective and has arrived at a just conclusion, which does not call for interference. He therefore, contends that the above appeals be dismissed.

9. In the light of the rival contentions, a perusal of the appeal papers would disclose that it is the very case of the appellant that he has advanced substantial amount of Rs. 2 crores to the respondent No.2 by way of financial assistance for business purpose. While taking note of the nature of the transaction and also the proceedings initiated, it is necessary for us to remain conscious of the fact that the proceedings between the parties is at the preliminary stage and any conclusive findings rendered in relation to the dispute between the parties would affect their case if ultimately the appellants were to succeed herein and the criminal proceedings are to be restored for further progress. Therefore, what is necessary to be examined herein is, as to whether the appellant has prima facie established a transaction under which there is a legally recoverable debt payable to the appellant by the respondent

No.2 and as to whether the cheques in question relating to which the complaint has been filed by the appellant is issued towards discharge of such legally recoverable debt. In that regard, what is necessary to be considered is also as to whether the cheques in question are still to be considered only as ‘security’ for the said amount and whether it was not liable to be presented for recovery of the legally recoverable debt.The question which would also arise for consideration is as to whether the complaint filed by the appellant should be limited to a proceeding under Section 138 of N.I. Act or on the facts involved, whether the invoking of Section 420 IPC was

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C.C.No.138 of 2018 Page No.18 also justified.

12. Having arrived at the above conclusion and also having taken note of the conclusion reached by the High Court as extracted above, it is noted that the High Court has itself arrived at the conclusion that the instant case becomes a simpliciter case of non refunding of loan which cannot be a basis for initiating criminal proceedings. The conclusion to the extent of holding that it would not constitute an offence of cheating, as already indicated above would be justified.

However, when the High Court itself has accepted the fact that it is a case of non refunding of the loan amount, the first aspect that there is a legally recoverable debt from the respondent

No.2 to the appellant is primafacie established. The only

question that therefore needs consideration at our hands

is as to whether the contention put-forth on behalf of

respondent No.2 that an offence under Section 138 of the

N.I. Act is not made out as the dishonourment alleged is of

the cheques which were issued by way of ‘security’ and

not towards discharge of any debt

13.In order to consider this aspect of the matter we

have at the outset taken note of the four loan agreements

dated 13.08.2014 which is the subject matter herein. Under

each of the agreements, the promise made by respondent

No.2 is to pay the appellant a sum of Rs.50 lakhs. Thus,

the total of which would amount to Rs.2 crores as

contended by the appellant. Towards the promise to pay,

the repayment agreed by the respondent No.2 is to clear

the total amount within June/July 2015. Para 5 of the loan

agreement indicates that six cheques have been issued as

security. The claim of the appellant has been negated by the

HighCourt only due to the fact that the agreement indicates that the cheques have been given by way of security and the complainant has also stated this fact in the complaint. Though the High Court has taken note of the decision in the case of

Sudhir Kumar Bhalla (supra) to hold that the cheque issued as

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C.C.No.138 of 2018 Page No.19 security cannot constitute an offence, the same in our opinion does not come to the aid of the respondent No.2. There is no

categorical declaration by this Court in the said case that

the cheque issued as security cannot be presented for

realisation under all circumstances. The facts in the said case relate to the cheques being issued and there being alterations made in the cheques towards which there was also a counter complaint filed by the drawer of the cheque. Hence, the said decision cannot be a precedent to answer the position in this case and the High Court was not justified in placing reliance on the same.

14. In fact, it would be apposite to take note of the decision of this Court in the case of Sampelly Satyanarayana Rao (supra) wherein this Court while answering the issue as to what constitutes a legally enforceable debt or other liability as contained in the Explanation 2 to Section 138 of N.I. Act has held as hereunder:

“10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that

the question whether a postdated cheque is for

"discharge of debt or liability" depends on the nature of

the transaction. If on the date of the cheque liability or

debt exists or the amount has become legally recoverable,

the Section is attracted and not otherwise.

11. Reference to the facts of the present case clearly shows that though the word "security" is used in

Clause 3.l (iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is

undisputed that the loan was duly disbursed on 28th

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C.C.No.138 of 2018 Page No.20

February, 2002 which was prior to the date of the cheques.

Once the loan was disbursed and installments have fallen

due on the date of the cheque as per the agreement,

dishonour of such cheques would fall under Section 138

of the Act. The cheques undoubtedly represent the

outstanding liability.

12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction.

Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in present in terms of the loan agreement, as against the case of Indus Airways

(supra), where the purchase order had been cancelled and

cheque issued towards advance payment for the purchase

order was dishonoured. In that case, it was found that the

cheque had not been issued for discharge of liability but

as advance for the purchase order which was cancelled.

Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment' of instalments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra),one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque.

13. Crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents

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C.C.No.138 of 2018 Page No.21 advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court.”

16. A cheque issued as security pursuant to a financial

transaction cannot be considered as a worthless piece of

paper under every circumstance. ‘Security’ in its true

sense is the state of being safe and the security given for

a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfillment of an obligation to which the parties to the transaction are bound.

If in a transaction, a loan is advanced and the borrower

agrees to repay the amount in a specified time-frame and

issues a cheque as security to secure such repayment; if

the loan amount is not repaid in any other form before the

due date or if there is no other understanding or

agreement between the parties to defer the payment of

amount, the cheque which is issued as security would

mature for presentation and the drawee of the cheque

would be entitled to present the same. On such

presentation, if the same contemplated is dishonoured,

under Section the 138 consequences and the other

provisions of N.I. Act would flow.

17. When a cheque is issued and is treated as ‘security’ towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as ‘security’ cannot be presented prior to the loan or the installment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there

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C.C.No.138 of 2018 Page No.22 being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I.

Act. Therefore, there cannot be a hard and fast rule that a

cheque which is issued as security can never be

presented by the drawee of the cheque. If such is the

understanding a cheque would also be reduced to an ‘on

demand promissory note’ and in all circumstances, it

would only be a civil litigation to recover the amount,

which is not the intention of the statute. When a cheque is

issued even though as ‘security’ the consequence flowing

therefrom is also known to the drawer of the cheque and

in the circumstance stated above if the cheque is

presented and dishonoured, the holder of the

cheque/drawee would have the option of initiating the civil

proceedings for recovery or the criminal proceedings for

punishment in the fact situation, but in any event, it is not

for the drawer of the cheque to dictate terms with regard

to the nature of litigation.

19. In the background of the factual and legal position taken note supra, in the instant facts, the appellant cannot be non suited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques presented and dishonoured are shown to have been issued as security, as indicated in the loan agreement. In our opinion, such contention would arise only in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount, if the due date agreed for payment of debt has not arrived. In the instant facts, as noted, the repayment as agreed by the respondent No.2 is during June/July 2015. The cheque has been presented by the appellant for realisation on 20.10.2015. As on the date of presentation of the cheque for

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C.C.No.138 of 2018 Page No.23 realisation the repayment of the amount as agreed under the loan agreement had matured and the amount had become due and payable. Therefore, to contend that the cheque should be held as security even after the amount had become due and payable is not sustainable.

17.2 Thus from the given case, the defence that Ex P1 was issue for security purpose when was preceded by a debt as can be garnered from Ex P11, 12 14 and 15, the contention that cheques issued for security purpose would not fall under the gamut of Sec 138 NI act is bereft of merits.

18.One contention of learned defence counsel was that the alleged debt was way back on 08-11-2014 and the cheque Ex P1 was dated 04-12-2017. it is the defence that by the the alleged debt is time barred. I find no merits in such contention as the documents Ex P11 executed in 2016 by itself is sufficient, where there was acknowledgment of debt by accused which revives the limitation.

19.Another contention was the cheque Ex P1 was no crossed. In the event when the cheques is not crossed, it is defence of accused that, the banker ought to have returned the same for the reason that drawer signature is not available in the reverse side of Ex P1.I believe such arguments is to circumvent the very crux of issue at hand. Even otherwise, on perusal of cheque, it is palpable that there is no signature of drawer on the reverse side of it. However the said fact by itself will not make this document a useless paper. The very aspect which is required to be considered is the cheque Ex P1 which admittedly was not presented for encashment with the drawer bank across the counter but was dropped in the drop box of payee bank for clearance which can be also indicated by the very cheque where we find the stamp of State bank of india Saketh road branch. The said stamp indicates that it was presented to be encashed into the

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C.C.No.138 of 2018 Page No.24 account of payee which by itself is sufficient to discard the defence taken by learned defence counsil. When the cheque is presented to be encashed through an account, such a necessity of signature of drawer on the reverse side of cheque does not arise.

20.Further the contention that legal charges was also shown in legal notice which is not in compliance with the statutory notice as required to be given under

Sec 138 NI Act. I have perused the statutory notice which is Ex P4 which shows

RS 5000/- as legal notice charges which perhaps is what cost incurred by Pw1 in engaging counsil to send such notice. However the fact that the cheque amount of Rs 25,00,000/- was not exaggerated so to call this document not in accordance with law. Thus such contention is not acceptable

21.Further that in Ex P12, accused had not signed on all the parers except the last paper. Thus contended that it is false document. Be that as it may, if it is the contention of accused that he had not signed on all the papers enclosed with

Ex P12, onus would be upon him to also mention the fact that what are the papers precedes the paper in which he signed. Even if this court goes to believe the version of accused, nevertheless, Ex P11 by itself would be suffice to believe there was debt existing.

22. Lastly learned defence counsel contend that Ex P1 was not issued from the personal account of accused. In saying so, it is the defence that Ex P1 should be issued from company account. However, no proof was put-forth to describe that

Ex P1 was not from the personal account neither is it obvious from the very cheque. Thus cannot be swayed by Learned defence arguments.

23.Thus from the circumstances above, never was that accused rebutted the presumption of law available in favor of Pw1 U/sec 118 and 139 NI act.

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C.C.No.138 of 2018 Page No.25

Furthermore the documents especially Ex P11, 12, 14 and 15 are substantiating enough to believe that Ex P1 was issued for discharge of legally enforceable debt. Further the decision relied by Pw1 also comes to his support.

24.IN the result, Accused is found guilty for the offence u/sec. 138 N.I Act and he is accordingly convicted under sexton 255 (2) of Cr.P.C.

Prl. Junior Civil Judge-Cum-

VII Addl. Metropolitan Magistrate

at Medchal

25. Hearing on sentence.

Heard complainant counsel and defence counsel. Complainant submit that maximum punishment be imposed on accused. However accused maintained that he is not liable to pay any money. Nothing was forthcoming from accused.

26. Sentence :

Having heard both sides, I find no circumstance to be lenient. Thus,

this court holds, Accused to undergo Simple imprisonment of 1 year(.one

year) and pay fine of Rs 35,00,000/-(Thirty Five lakhs only). The fine shall be

adjusted towards compensation to complainant. In default of payment of

compensation, accused shall undergo simple imprisonment for 1 year (one

year). Default sentence shall run consecutively.

27. The office is directed to furnish the free copy of judgment to the accused forthwith. Accused is apprised of his right to prefer appeal before the Hon’ble

District and session court, Medchal - Malkajgiri District at Kushaiguda. Further apprised of his right to free legal services provided by District Legal Service

Authorities. Accused is also informed about the forum of appeal and the limitation.

Prepared by myself, corrected and pronounced by me in the open Court on

this the 23 th day of February, 2024.

SD/-

Prl. Junior Civil Judge-Cum-

VII Addl. Metropolitan Magistrate

at Medchal

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C.C.No.138 of 2018 Page No.26

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW-1: Sri. K.Sai Shivakanth - Nil -

EXHIBITS MARKED.

For Prosecution:

Ex.P1 is the Original Cheque bearing No.613454 dt. 04.12.2019 for Rs.25,00,000/- Ex.P2 is the Original Cheque Return Memo dt. 11.12.2017 Ex.P3 is the Original Cheque Return Memo dt. 18.12.2017 Ex.P4 is the Office copy of Mandatory Notice got issued to accused on 07.01.2018 Ex.P5 is the Original Postal Receipt dt. 08.01.2018 Ex.P6 is the Original Acknowledgment signed by the accused on 13.01.2018 Ex.P7 is the Office copy of Rejoinder got issued to accused on 26.01.2018 Ex.P8 is the Original two Postal Receipts in proof of RPAD dt. 29.01.2018 Ex.P9 is the Original Postal Acknowledgment signed by the accused dt.31.01.2018 Ex.P10 is the Original Postal acknowledgment signed by the accused dt.02.02.2018 Ex.P11 is the Original Agreement cum undertaking dt. 15.06.2016 Ex.P12 is the Original Agreement cum undertaking dt. 08.03.2017 Ex.P13 is the Original Resolution handed over by the accused on 12.04.2017 Ex.P14 is the Original Memorandum, dt. 26.05.2017 Ex.P15 is the Original Memorandum dt. 26.05.2017 Ex.P16 is the Original Cheque bearing No.613465 dt. 21.10.2017 for Rs.15,00,000/- Ex.P17 is the Original Cheque bearing No.613456 dt. 10.11.2017 for Rs.20,00,000/- Ex.P18 is the Original Cheque bearing No.613467 dt. 25.11.2017 for Rs.20,00,000/- Ex.P19 is the Original Cheque bearing No.613468 dt. 25.11.2017 for Rs.20,00,000/- Ex.P20 is the Original Cheque bearing No.569586 dt. 29.12.2016 for Rs.20,00,000/- Ex.P21 is the Original Cheque bearing No.569590 dt. 29.12.2016 for Rs.20,00,000/- Ex.P22 is the Original Cheque bearing No.569591 dt. 31.12.2016 for Rs.20,00,000/- Ex.P23 is the Original Cheque bearing No.569592 dt. 31.12.2016 for Rs.15,00,000/- Ex.P24 is the Original appointment order dt. 08.11.2014 Ex.P25 is the Original Cheque bearing No.0000281 dt. Nil drawn on ICICI Bank

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C.C.No.138 of 2018 Page No.27

Ex.P26 is the Original Cheque bearing No.000706 dt. Nil for Rs.25,00,000/- Ex.P27 is the Original Cheque bearing No.000707 dt. Nil for Rs.25,00,000/-

Ex.P28 is the Original Cheque bearing No.000708 dt. Nil for Rs.15,00,000/- Ex.P29 is the Original Cheque bearing No.000710 dt. Nil for Rs.10,00,000/- Ex.P30 is the Original Cheque bearing No.038301 dt. Nil. drawn on Syndicate Bank, Nellore.

FOR Defence:

- Nil -

Prepared by myself, corrected and pronounced by me in the open Court on this

the 23 th day of February, 2024.

SD/-

Prl. Junior Civil Judge-Cum-

VII Addl. Metropolitan Magistrate

at Medchal //Corrections are carried out by steno//

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C.C.No.138 of 2018 Page No.28 // Correction are carried out by steno //

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CC No.801 / 2017 1

IN THE COURT OF THE IX ADDL. METROPOLITAN MAGISTRATE,

AT MEDCHAL

PRESENT: SRI. P.PAVAN KUMAR

IX METROPOLITAN MAGISTRATE

AT MEDCHAL

Wednesday, dated the 08th day of February, 2023

CC.801 OF 2017

Between:-

State represented by Sub Inspector of Police, P.S. Pet Basheerabad

...Complainant.

A N D

A1Raj Narain Singh S/o. Uma Shankar Singh, Age: 39 years, Occ: Driver, R/o. H.No.7-896/3/1/A, `Subhash Nagar, Quthbullapur mandal, Medchal district; N/o. Kakarakohar Post, PS Balibar, Gorakhpur District, Uttar Pradesh State

A2Munavath Ravinder S/o. Ramulu, Age: 35 years, Occ: Agriculture, R/o. H.No.6-189, Shitya Thanda, Shivampet mandal, Medak District

….. Accused.

This case is coming for final hearing before me in the presence of Learned Assistant Public Prosecutor for the prosecution and of Sri D.Raghuramulu, counsel, upon perusing the material on record, upon hearing both sides and having stood over for consideration till this day, the Court delivered the following:-

::J U D G M E N T::

1.Accused A1 is indicted for the offence U/s.304-A IPC, Secs.181, 185, 196 of Motor Vehicles Act and Accused A2 is indicted for the offence U/s.180 of MV Act on police filing the charge sheet with the following accusations.

2.That, Smt Nagula Sangeetha and her son were proceeding towards

Dewan dhaba by walk from satellite township. On the way, in between satellite township and Deewan dhaba, accused who is the rider of motorcycle bearing no.AP-23/AJ-6165(hereinafter crime vehicle) who was proceeding towards Deewan dhaba from Chintal, had driven crime motorcycle in rash and negligent manner and dashed deceased from behind. Deceased received bleeding injuries on back of her head. While undergoing treatment, she succumbed to injuries. Accused A1 was in drunken condition. A1 had no driving license or insurance to drive motorcycle. Accused A2 had allowed

CC No.801 / 2017 2

accused A1 to drive the motorcycle without A1 possessing license, thus he was indicted for Sec.180 of Motor Vehicles Act and Accused A1 for the offence U/s.304-A IPC and Secs.181, 185 and 196 of Motor vehicles Act.

3.This court has taken cognizance against A1 and A2. On appearance of the accused, they were furnished with copies of the documents U/s.207

Cr.P.C and A1 was examined U/s.251 Cr.P.C for the offence U/s.304-A IPC,

Secs.181, 185, 196 of MV Act and against A2 for the offence U/s.180 of MV

Act. Having understood the allegations leveled against them, they pleaded not guilty and claimed to be tried.

4.After closer of the prosecution evidence, Accused were examined

U/s.313 Cr.P.C., with incriminating evidence brought against them, for which they denied the truthfulness of it, yet submitted no defence evidence on their behalf.

5.Heard, learned APPO and Heard learned counsel for the accused at length.

6.1Arguments of APPO: It is the argument of the learned prosecutor, that, admittedly, there is failure on the part of police to hold Test identification parade, but the said fact by itself will not cause case of the prosecution to be watered down when the circumstances are existing otherwise which points the guilt of the accused A1. It is submitted that Pw1,

Pw3 and Pw4 are the eye witnesses who had consistently testified that they had seen the accused, and further had identified the accused in the court. It is also testified by Pw4 that one passers-by had caught accused A1 while he was trying to run away. Accused A1 did not pull over his vehicle, after the accident, which suggest his conduct. Nevertheless, he was found to have administered himself with alcohol beyond the permissible limits as was proved through Ex.P7 which is breath analysis report, which is sufficient to prove rash and negligent act incumbent for the accident caused. As was rightly testified by the police, that, the eye witnesses during the oral examination mentioned, that, they can identified the culprit. However, he did not mention the same due to rush of work. Further circumstances like accused was subjected to breath analysis test, and accused was served with

Sec.41-A Cr.P.C. notice, throws onus on accused to suggest his part of story

CC No.801 / 2017 3

why he happened to be at the scene, what traversed for him to be subjected to breath analysis test and what caused him to take notice U/s 41 A crpc. All this circumstances has to be comprehended while coming to conclusion of whether non conducting of TI parade would be fatal to the prosecution or not. Thus, it is prayed that the accused A1 be punished for his overt act of causing accident in inebriated condition, possessing no license, possessing no insurance, and A2 for his contravention of the provisions of MV Act for allowing accused A1 to drive crime vehicle without the rider having driving license.

6.2Arguments of Defence:On the other hand, the learned defence counsel through written arguments submits that, the burden of proving the case with regard all the ingredients of the offense lies with the prosecution.

Prosecution has examined Pw1, Pw3 and Pw4 who were cited as eye witnesses. There is no allegation as per the evidence of said eye witnesses which could show the alleged rash and negligent driving. As can be understood from the prosecution witnesses, that, scene of offense is a busy road with heavy flow of traffic and there are speed breakers, as such it is impossible for any driver to drive the vehicle at high speed. There are no tire marks at the scene of offense. Investigation Officer – Pw9 had testified that he had conducted scene of offense panchanama on 10-10-2017.

However the incident alleged traversed on 11-10-2017. To cover the lacunas, Investigating Officer had testified that it was clerical mistake.

Identification of accused is paramount consideration for the court to decide upon his involvement in the case. As the time of offense suggests that it was dark and there is no probability of witnesses identifying the alleged accused A1. Witnesses has not described about the descriptive particulars of the accused in their statements. Accused is totally stranger to eye witnesses. Police failed to conduct TI parade for the identification of accused which by itself is fatal to the case of the prosecution. There is 13 days delay in examining the crime vehicle by the MVI Inspector. The Breath Analyzer

Test report was taken prior to FIR. Investigation Officer should have taken steps to produce the accused before the Government Medical Officer for examination. However he did not, thus the Breath Analyzer Test should not be considered.

CC No.801 / 2017 4

6.2.1 The learned defence counsel further relied upon the judgment of

Hon’ble High Court of Telangana in K. Rajaiah Vs. State of AP, 2010 (2)

ALD Crl. 376 AP, wherein the Hon’ble High Court in Para no.19 had discusses as follows:- “Each case has to be decided on its own facts and circumstances. For example, in case where the accused has committed rape on a victim and where the victim had ample opportunity to observe the accused closely, there are circumstances that even without holding Test Identification

Parade, the evidence of such witness, if inspiring confidence, can be relied upon. For example, in a case of dacoity, robbery or in case of a murder, where the witnesses had ample opportunity to observe the physical features of the accused and where there was sufficient light, the evidence of such witnesses can be relied upon. What is to be seen is whether the

witnesses had an ample opportunity to get the

impressions of the accused imprinted in their mind.

Wherein a case there was no opportunity for the witnesses to see the accused and he had only the opportunity of getting a fleeting glimpse of the accused from a distance and that too when the accused was running away, then it may be difficult to accept the evidence of such a witness. What is to be seen is whether the witnesses had given descriptive particulars of the accused in their earlier statements before the police. Whether they had stated in their earlier statements under all the circumstances they were able to identify the accused and from the record if it appears that the witnesses had categorically stated on the earlier occasion before the police that they can identify the accused and as a mark of guarantee if they had narrated the physical features of accused to the police in their statements, then if the witness identify the accused, may be for the first time in Court, the Court may be justified in accepting the evidence of such witness. Therefore, what is required is

that the Court has to consider the facts and

circumstances of each case separately and should come

to definite conclusion whether the witness had an ample

CC No.801 / 2017 5

opportunity to see the physical features of the accused or

not.

6.2.2 Further relied upon the judgment of Hon’ble High Court of AP between

Jarapala Deepla Vs State of AP, 2005(2) ALD Crl.818 and the judgment of Hon’ble Apex Court between Dana Yadav @ Dahu & Othrs Vs State of

Bihar, 2002 AIR, Supreme Court, 3725.

6.2.3 All the three judgments cited is with regard to conducting of TI parade and how fatal is for the prosecution if it is not conducted. In the case

Jarapala Deepala, conducting any Test identification parade, consequently identifying the accused for the first time in the Court after 2 1/2 years was found to be fatal. In the case of Dahu Yadav, where the prosecution witnesses did not mention the name of accused before police, and no TI parade was held and the prosecution witnesses consequently identifying accused after 2 1/2 years held to be fatal for the case of the prosecution.

6.2.4 The learned defence counsel had merely filed the above decisions of the Hon’ble constitutional courts without taking indulgence of the court to the facts and to the ratio which is laid, but merely had submitted the judgments leaving it to the wisdom of this court to peruse the same.

7.Now the point for determination is:- Whether the prosecution has proved the guilt of the Accused for the offences leveled against them beyond all reasonable doubt?

8.In nutshell, it is case of the prosecution, that, accused A1 was the rider of crime motorcycle, and accused A2 is the owner of the said motorcycle.

While the deceased and her son was walking towards Deewan dhaba from satellite township. Accused A1 had driven his motorcycle at rash and negligent manner and had rammed the deceased from behind. Besides, accused A1 was in drunken condition having no license or insurance.

Accused A2 had caused A1 to drive the motorcycle knowing the fact that he was having no driving license.

CC No.801 / 2017 6

9.To prove the case, prosecution has examined Pws1 to 9 and exhibited

Exs.P1 to P7. The relevant portion of testimonies is as follows:

Prosecution Evidence:

9.1Pw1 testified that, deceased Smt Sangeetha is wife of his friend Sri

Amarendar(Pw8). On 11-10-2017, at about 6.30 p.m., while the deceased along with her son were proceeding towards Deewan dhaba from her house, when they happened to reach near Deewan dhaba, one motorcyclist

bearing no.AP-23/AJ-6165 came in high speed at rash and negligent

manner and rammed the deceased from backside, consequently she fell off and sustained severe bleeding injuries. At the time of accident, he was at the scene of offence, however he was on the other side of the road.

He had immediately shifted the injured to Konark hospital. He had identified accused A1 was rider of the motorcycle.

In the cross examination, he had denied that the road at the scene of offence was fully damaged. He testified accident traversed at 6.30

p.m. it was becoming dark. It is admitted that he has not

mentioned that he can identify accused A1 in his complaint.

9.2Pw2 – Nimmala Jalandhar deposed that on 11-10-2017, at about 6.30 p.m. deceased met with an accident. He had received information about the accident through a phone call. The motorcycle number is AP-23/AJ- 6165.

In the cross examination, he has admitted that he was not present at the time of accident. It is admitted that the scene of offence is a busy road.

However, denied that there were speed breakers at the place of accident.

9.3Pw3 – M. Bajanna, testified that, in the month of October 2017, one day, while he was proceeding towards Ganga enclave to meet his friend, at about 6.30 p.m., he noticed an accident. One motorcyclist had dashed one lady who was proceeding towards Deewan dhaba. The motorcyclist

bearing no.6165 had driven it at high speed and dashed the lady

from backside. He had taken her cell phone and informed to one Jalander about the accident. A1 who is present in the court hall is the rider of the motorcycle.

CC No.801 / 2017 7

In the cross examination, he has admitted that there might be speed breakers on the service road. He had admitted that he had mentioned

before the police that the crime vehicle had dashed the victim from

backside. He had not described the descriptive particulars of the

rider to police. He had testified that police had not questioned him

whether he can identify accused or not as such he has not answered

with that regard.

9.4Pw4 – Sri Shaik Asif testified that, on 11-10-2017, while he was plying from Shapoor to Deewan dhaba, one lady while she was walking with her child beside the SLN Developers, which is popularly known as pipeline road, one motorcyclist bearing no.AP-23/AJ-6165 had rammed the victim lady from behind at high speed of 50 to 60 kms per hour and he escaped the scene without stopping his vehicle. The said speed is rash and negligent to the scene of offence. He had taken the lady into an auto and went straight to Konark hospital. Thereafter the victim relatives came to the hospital. A1 was identified as the person who caused the accident.

In the cross examination, he had admitted that there will be heavy traffic. Scene of offence is a heavy traffic road. It is admitted that there are speed breakers on the said road. One passerby had caught accused A1 while he was escaping. He denied suggestion that he has not seen the accused.

9.5Pw5 – Sri S. Mohan Reddy who is panch witness for scene of offence panchanama has testified of the fact of police conducting scene of offence panchanama in his presence.

9.6Pw6 – Sri Vijaya Rao, who is Motor Vehicle Inspector has testified of the fact of receiving requisition for conducting motor vehicle inspection over motorcycle bearing no.AP-23/AJ-6165. That he had inspected the vehicle and found the head light was broken. Breaks were efficient and that there was no mechanical defects of the crime vehicle.

9.7Pw7 – Sri N. Naresh, who is panch witness for inquest panchanama testified of the fact of police conducting inquest in his presence.

CC No.801 / 2017 8

9.8Pw8 – Sri N. Amarendar Kumar, who is husband of deceased testified that on 11-10-2017, while he was working overseas at Dubai, he learned about the accident.

9.9Pw9 – Sri S. Srinath, who is Investigation Officer testified that, on 11- 10-2017, at about 9.00 p.m., he had received report from Pw1. He had examined Pw1. He rushed to scene of offence and secured Pw5, Lw7 (Sri

Samala Sriram Reddy) and conducted scene of offence panchanama. As injured was not in a circumstance to give evidence, as such he could not record her statement. Crime vehicle bearing no.AP23-AJ-6165 was seized from the scene of offence. Accused was not present at the scene of offence.

At some distance from the scene of offence, they had identified the

accused A1 was in inebriated condition. He was taken into custody.

Breath Analyzer test was conducted upon him, as result was accused

under the influence of alcohol. The following day he had received information that deceased succumbed to injuries. The crime vehicle was handed over to owner of the vehicle i.e. A2.

In the cross examination, he had testified by the time he reached scene of offence, there were around 10 to 15 persons gathered. Scene of

offence was conducted on 11-10-2017, but not on 10-10-2017.

There is a typographical error with regard to date as mentioned in Ex.P2.

He had admitted that witness has not described the descriptive

particulars of rider of the crime vehicle. However, he had added that

during the oral examination of witnesses, they mentioned that they

can identify the witnesses. However he did not mention the same

due to rush of work. That he had caught accused after going to the scene of offence. Further adds that accused driver was caught prior to recording of

FIR by police patrol. That accused was caught first by mob at the scene of offence. However the said mob was not cited as witness.

Witness adds that in the cases like present, where information of accident is received, police usually rush to the spot and while shifting the victim to hospital and thereafter will begin the investigation. It is admitted that

breath analyses test on accused A1 was conducted at 8.30 p.m and

FIR was recorded at 9.00 p.m.

CC No.801 / 2017 9

Appreciation of Evidence and Rationale for arriving decision:

10.Having perused the case of prosecution, evidence adduced, having heard the defence counsil and having perceived the stand of defence from the arguments and cross examination, there are certain question of facts which is required to be adjudicated before embarking upon guilt of accused.

FirstlyWhether accused A1 was the rider of crime vehicle bearing no

AP-23/AJ-6165 ?

SecondlyWhether accused A1 caused the accident?

Thirdly,Whether Accused A1 was under the influence of Alcohol?

Fourthly, Whether accident was due to rash or negligent driving of accused A1?

Fifthly,Whether accused A1 had no driving license to drive crime Motor cycle?

Sixthly, Whether the crime motor cycle had no insurance ?

10.1 To answer the said question of facts, it is required for this court to appreciate the evidence on record. As can be perceived from the evidence adduced, Pw1, Pw3 and Pw4 were the eye witness. Pw2 and Pw8 are hearsay witness. Pw5 is panch witness for scene of offence. Pw6 is motor vehicle inspector. Pw7 is panch witness for inquest, Pw9 is investigating officer. Pw2is brother of deceased Sangeeta who happened to receive information of accident making him hearsay witness. Pw8 is husband of deceased who was in Dubai at the time of accident and is hearsay witness too. Thus the evidence of Pw2 and Pw8 fasten no accusation against accused.

10.2 Pw1, Pw3 and Pw4 are the material and independent witness besides

Pw9 the investigating officer whose evidence is significant to decide the questions of facts formulated above. The other witness like Pw5 who is panch witness for scene of offence, Pw7 panch witness for inquest is impressive enough to conclude that police had conducted scene of offence

CC No.801 / 2017 10

panchanama and inquest panchanama. Besides, the other witness Pw6 the motor vehicle inspector testimony is impressive to the extent of his duty in examining the crime vehicle and his opinion eventually that there is no mechanical defects to the crime vehicle. It is defence of accused that there is delay of 13 days in examining the crime vehicle. Admittedly there is delay, which by itself is not though fatal. After all, MVI had conducted his investigation on vehicle and had given report concluding the vehicle has no mechanical defects. The delay in procedure should be dealt pragmatically and on real time basis. No hyper technical approach be given. With the vast majority of population, with the less no of state holders in justice delivery system, some delay may transpire which should be comprehended pragmatically.

10.3 Thus coming back to evidence of Pw1, 3, 4 and 9. Pw1 is defacto complainant. It is testified by Pw1 that, he had witnessed the accident that accused A1 caused accident with the crime vehicle. While at the time of accident, he was on the other side of the road. He had identified accused A1 was the motorcyclist who caused the accident. It is also testified that he had caused the accident at high speed. Besides he being eye witness, it was also testified that he is friend of Pw8 the husband of deceased. Pw3 and Pw4 testified that accused A1 had driven his motor cycle at high speed. It was also testified by Pw4 that, crime motor cycle was driven at speed of 50 to 60 kmph. Pw4 also testified in cross that accused without pulling over his vehicle had escaped from scene of offence but was caught be passer by.

Both the witness had identified accused A1 in the court. Pw9 the investigating officer, as can be divulged from his testimony, that, accused was caught by mob and was the taken into custody by patrol police implieldly by Pw9 as he was with them, and also that accused was under the influence of alcohol who when subjected to breath analyzer test recorded the reading as 184mg/100ml.

10.4 All the above evidence, points accusation towards accused A1.

However there are certain defence which is required to be appreciated

before forming any opinion against accused A1. It is the defence that

accused was identified first time in the court which is weak piece of evidence. Maintaining the defence that accused had not caused the accident, indulgence of court was brought to the cross examination of witness, which

CC No.801 / 2017 11

if read holistically, would gather some relevant facts that the scene of offence is busy road. That at some distance, there is speed breaker but not exactly at scene of offence. That the road is not clean. In maintaining such defence, probably learned defence counsil wanted to impress upon this court that when the road is busy, when the road is not in good condition, there is no chance of accused driving vehicle at high speed and causing accident.

Though the arguments are alluring but circumstances describe otherwise.

10.5 Although evidence of Pw1 says accusedA1 had driven motor cycle at high speed, but no accurate speed was mentioned. Speed however is relative term should be understood impliedly from the nature of road. Pw3 also maintained that accused drove at high speed. Pw4 was certain in testifying that accused A1 was driving his motorcycle at 50 or 60 KMPH. The said speed for the said nature of road is obviously lethal. The word Busy road implies two meanings. One where there is snail pace of traffic, where chance of speed driving can be completely ruled out. Other, where road is busy with flow of traffic, but with maneuver of perpetrator, he can drive rashly which includes some amount of speed. When the witness Pw1 and

Pw3 testified that accused had driven vehicle at speed would naturally imply their intelligence in understanding the said road was not meant for such speed.

10.6 Learned defence counsil relied by the decision above where it was ruled that identification for the first time in the court by itself is weak piece of evidence. As was rightly pointed by defence counsil that identification for first time in court is weak piece of evidence, if it was only the evidence.

Experience and judicial notice of this particular fact says, like all other cases of accident deaths, this is also one where there is no test identification parade. Will the said fact by itself cause the prosecution case to be discarded. I believe not. Indeed, Test identification parade and subsequent identification in court would rule out doubt with regard to identity of accused. Nevertheless, when the witness testifies unshaken, unambiguous, crystal clear about the identity of accused by seeing the accused in the court, not merely one but three witnesses causes impression of their reliability. Besides, Ex P7 which is breath analyser test conducted on Accused

A1, after he was caught near by the scene of offence, after he was served with notice U/s 41 A crpc with his signature, conspicuous fasten accusation

CC No.801 / 2017 12

towards A1. There is no alternative story for accused to describe the fact why he was taken into police custody, why he was subjected to breath analyzer test, why he was served with notice U/s 41 A Crpc. All this circumstances fasten accusation towards Accused A1. It is also argued that it was dark at the time of accident and no possibility of witness identifying accused. However, the time of accident was 6.30 p.m. in the evening and the month was October. Perhaps by time, and month, we can imply that at the time of accident, it was twilight. No complete darkness would surround.

Further as was argued by defence that it is busy road, the headlights of vehicles will be sufficient to identify culprit.

10.7 Certain portion of decision of Honble High Court in Rajaiah case will throw some light upon us.

Xxxxxx xxxxx “What is to be seen is whether the

witnesses had an ample opportunity to get the

impressions of the accused imprinted in their mind”

xxxx xxxx “Therefore, what is required is that the

Court has to consider the facts and circumstances of

each case separately and should come to definite

conclusion whether the witness had an ample

opportunity to see the physical features of the

accused or not”.

10.8 As was testified by witness that accused A1 had tried to escape from scene of offence but was caught by by-standers. When under the circumstances, when accused had plans to escape from scene after causing accident, when by-standers had thwarted the maneuver of accused, there is certain amount of maneuver required for the bystander too, which certainly attract eye of commuters and would perhaps remain in subconscious memory. Pw4 is one such witness who witnessed it, which makes his identification in court much reliable. Thus what was discussed above, will cause this court to believe the witness had ample opportunity to get the identity of perpetrator imprinted in their mind. Nothing was the like circumstances in the case relied by learned defence counsil which makes this present facts different with the decision relied. Likewise, other two decisions as relied by learned defence counsil with regard to Test identification Parade also has no application to present facts.

CC No.801 / 2017 13

10.9 In Kanta Prashad Vs Delhi Administration AIR 1958 SC 350,

Hon’ble Supreme Court had observed as follows:-

“It would no doubt have been prudent to hold test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course”.

10.10 Thus, failure to hold TIP would not make inadmissible the evidence of prosecution. The weight to be attached to such identification would be a matter for the courts of fact. And the facts as discussed above, cause this court to believe accused A1 was driving the crime vehicle and had caused the accident. Thus question 1 and 2 is answered in positive.

10.11 One other defence was, witness not mentioned, that, they can identify accused in their statements to police. In understanding the complicity behind it, we shall understand whether the need to describe the identity particulars of suspect. We should be pragmatic in understanding it.

Statements recorded by police U/s 161Crpc is part of Investigation mainly to collect evidence. Does police officials has any Standard operating procedure to question the witness in any particular way, I believe not. What wisdom carried by investigating officer at the moment will cause him to question the witness in such direction. The defence that witness failed to describe the identity particulars of accused during investigation depends on the acumen of investigating officer in putting such question. When the witness makes his previous statement that he had seen the accused, it implies that he can answer the identity particulars. We are concerned here with ground realities.

It should be investigating officer, whose duty is to put such question. What would the witness know about the conundrums and burden of prosecution during trial. Such acumen should be incumbent on Investigating officer to put such question. For the mere reason that there was no such question, consequently no such answer, cannot be fatal to prosecution case. After all

CC No.801 / 2017 14

defective investigation is no ground to discard prosecution version. However when we peruse evidence of Pw9, he did testify that witness stated that they can identify the accused however he had not recoded due to rush of work, which I find is honest enough.

10.12 I would like to rely by the judgment of Hon’ble Supreme Court in

Visweswaran Vs State rep. By SDM 2003, CrLJ 2548, wherein the

Hon’ble Supreme Court observed as follows:-

“Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It

is also required to be kept in view that every defective

investigation need not necessarily result in the

acquittal. In defective investigation, the only

requirement is of extra caution by Courts while

evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.

10.13 Thus carried by the above decision, even if there is failure noticed on the part of investigating officer in not questioning the identity particulars of accused, but by the answered arrived on the 1st and 2nd question of fact, further taking into consideration ground realities, such defect is not fatal.

CC No.801 / 2017 15

10.14 Other defence that scene of offence date was mentioned wrong which this court believes that it is clerical mistake. Further defence that breath analyzer test was conducted prior to FIR. I would like to extract Sec.185 of

Motor Vehicle Act.

Sec.185 of MV Act reads thus:- Driving by a drunken person or by a person under the influence of drugs.

Whoever, while driving, or attempting to drive, a motor vehicle,

(a) Has in his blood, alcohol exceeding 30 mg. Per 100 ml.

of blood detected in a test by a breath analyser, or

(b) Is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extent to six months, or with fine which may extent to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extent to three thousand rupees, or with both. Explanation – For that purposes of this section, the drug or drugs specified by the Central

Government in this behalf, by notification in the Official

Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.

Circumstances warrant the test to be conducted immediately. After all, no impediment that it should have been conducted only after recording FIR.

The defence that Breath analyzer test should not be considered and police ought to have taken accused to Govt hospital for conducting blood alcohol test does not impress this court as no circumstances cause this court to disbelieve the breath analyzer test report which is EX P7. Thus question 3 is answered in positive.

10.15 The fourth question, whether accident was due to rash or negligent driving of accused? One of the ingredient of S 304 A IPC is driving vehicle in

CC No.801 / 2017 16

rash or negligent manner. The term rash or negligent is a relative term which should be understood from the facts traversed in causing accident. The fact that accused had driven vehicle at high speed, as we discussed what could be high speed from the perception of witness, after all Pw4 who specifically testified accused A1 had drive vehicle at 50 to 60 Kmph which by itself from the nature of road at the scene of offence, further the fact that accused was under the influence of alcohol beyond much higher than the permissable limit of 30gm/100ml, indeed is an act of culpable rashness and negligence.

Thus the 4 th question is also answered in positive.

10.16 Fifthly, and Sixthly, whether accused A1 had license and whether he had insurance for crime vehicle?. I would like to extract relevant provision of law.

Sec. 181 Motor Vehicle Act:. Driving vehicles in contravention of section 3 or section 4.—Whoever, drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Sec. 196 Motor Vehicle Act. Driving uninsured vehicle.—

Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 146 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Sec.181. Motor Vehicle Act is penal provision for driving vehicle without driving license and S 196 Motor Vehicle Act is penal provision for driving vehicle without insurance. The fact whether A1 had driving license and insurance for crime vehicle will be well with the self knowledge of A1.

When it is testified by Pw9 that accused A1 had no license and no insurance, onus shifts on accused in view of S 106 of evidence act to disprove the allegations. As accused A1 was proved to have driven crime vehicle and caused accident, failure to putforth the proof of having driving license and insurance will invite contravention of S 181 and S 196 Motor vehicle act.

Thus 5 th and 6 th question is answered in positive too.

CC No.801 / 2017 17

10.17 So far accused Accused A2 is concerned, he is indicted for offence U/s 180 Motor Vehicle Act. The said section reads as follows:

Sec. 180 Motor Vehicle Act. Allowing unauthorised persons to drive vehicles.—Whenever, being the owner or person in charge of a motor vehicle, causes, or permits, any other person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Allegations against A2 that he had given accused A1 crime motorcycle knowingly that A1 does not possess driving license. Admittedly accused A1 was caught with crime motor cycle. However the said fact by itself will not make A2 liable. Some circumstances should have been established by prosecution to show the relationship between A1 and A2 so to infer certain knowledge of A2. The nexus between A1 and A2 should have been established by prosecution for causing this court to believe whether A2 had caused or permitted A1 to drive his motorcycle.

11.Coming back to the main penal provision of causing accident death which reads as follows:-

S. 304A IPC. Causing death by negligence.--

Whoever causes the death of any person by doing

any rash or negligent act not amounting to culpable

homicide, shall be punished with imprisonment of

either description for a term which may extend to

two years, or with fine, or with both.]

The rash or negligent act as envisaged in this section does not mean mere rash or negligence but should be culpable rash or negligence. As was decided that accused A1 driven vehicle at a speed not suitable to scene of offence, far more had driven crime vehicle under the influence of alcohol far beyond the permissable limit, and causing accident consequently produced death of Smt Sangeetha is an act of culpable rashness and negligence.

CC No.801 / 2017 18

12.In the result, Accused A1 is FOUND GUILTY for the offence charged

U/sec.304-A IPC, U/sec.181, 185, 196 Motor Vehicle Act and accordingly

CONVICTED under Sec.255(2) Cr.P.C. Accused A2 is FOUND NOT GUILTY for the offence U/sec.180 Motor Vehicle Act and is acquitted U/s.255(1)

Cr.P.C. The bond and bail bond of the accused and the sureties stands for a period of 6 months.

Typed by me, corrected and pronounced by me in the open

court, this the 08 th day of February, 2023.

Sd-

IX Addl. Metropolitan Magistrate, at Medchal

Hearing on sentence

Plea Of The Accused A1 On Conviction:-

Accused A1 submitted that he hails from poor family, has 3 children and old aged mother and thus pleaded to take lenient view. Considering case facts, it is a death produced by accused A1 due to his culpable rashness and negligence, as such no lenient view is palatable. Eventually, I find no reason to invoke Probation of Offenders Act.

Further, in addition, I invoke S.353(3) Crpc for imposing compensation on accused A1 payable to Pw8 who is husband of deceased. The ordeal and loss experienced by family of Pw8 cannot be compensated by any means. However, certain amount of compensation, I believe should be imposed on Accused A1 for the loss he produced to family of Pw8. Nevertheless, the plight, ordeal of victim family cannot be merely ascertained as there is no yardstik. Yet, it is determinable that such compensation should be deterrent enough.

13.SENTENCE:-

From the above, this court holds that, Accused A1 shall

undergo simple imprisonment of 2 (Two) years and shall pay

compensation of Rs 2,00,000/-(Two Lakhs) for the offence U/s 304

A IPC. Further shall undergo Imprisonment for 3(Three) months

simple imprisonment and fine of Rs.500/- with default sentence of

10 days for the offence U/s.185 Motor Vehicle Act, and Rs.500/-

each for the offence U/sec.181 and 196 of Motor vehicle Act, default

sentence of 10days each.

CC No.801 / 2017 19

The compensation awarded be paid to Pw8 who is husband of

deceased which I believe will be alleviating their ordeal, would

render punitive and deterrent enough. Compensation be paid within

Two months. Failing which accused would serve simple

imprisonment of 6 months(Six Months) as default sentence. Default

sentence shall run consecutively. The remand period underwent if

any by the accused shall be given set off U/sec.428 Cr.P.C.

14.The office is directed to furnish the free copy of judgment to the accused forthwith. Accused A1 is apprised of his right to prefer appeal

before the Hon’ble District and session court, Medchal - Malkajgiri District at

Malkajgiri. Further apprised of his right to free legal services provided by District Legal Service Authorities. Accused is also informed about the forum of appeal and the limitation.

Prepared by myself, corrected and pronounced by me in the open Court on this the 08th day of February, 2023.

Sd-

IX Addl. Metropolitan Magistrate, At Medchal

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

P.W.1 : Sri Maggidi Sudarshan None P.W.2 : Sri Nimmala Jalandhar P.W.3 : Sri M. Bajanna P.W.4 : Sri Shaik Asif P.W.5 : Sri S. Mohan Reddy P.W.6 : Sri Vijaya Rao P.W.7 : Sri N. Naresh P.W.8 : Sri N. Amarendar Kumar P.W.9 : Sri S. Srinath

DOCUMENTS MARKED FOR

PROSECUTION: DEFENCE:

Ex.P1 ComplaintNone Ex.P2 Crime details form Ex.P3 MVI report Ex.P4 Inquest panchanama Ex.P5 FIR Ex.P6 PME report Ex.P7 BAC Test report Material Objects:- -Nil-

Sd-

True copy to Accused IX Addl. Metropolitan Magistrate,

At Medchal

OS No. 04 of 2012 Page No.1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE,

AT: MEDCHAL

PRESENT:- Smt. M.Aruna, Prl. Junior Civil Judge, Medchal

Original Suit No.04 of 2012

On this the 13 th day of August, 2019

Between:- Jakkula Papaiah, S/o.J.Mallaiah, Aged 45 years, R/o.Dundigal Village, Quthbullapur Mandal, Ranga Reddy District … Plaintiff

and

1.Sri Ladipeerla Krishna, S/o.Shankaraiah, Aged about 40 years, Occ:Agriculture, R/o.H.No.4-68, Dundigal Village, Quthbullapur Mandal, Ranga Reddy District

2. M.Balaiah, S/o.Mallaiah, Age 65 years, R/o. 1-55, Dundigal Village, Quthbullapur Mandal, Ranga Reddy District

3. Tata Towers Rep. by Srinivas Reddy, Office at Gowtra Trity Apartments, Near Visa Office Food Bridge, Police Lines, Secunderabad

4. AP Transco, Rep. by its Managing Director, Vidyuth Soudha Buildings,

Somajiguda, Hyderabad ... Defendants

This suit came before me on 05-08-2019 for final hearing and disposal in the presence of Sri Burma Chakrapani, learned Counsel for the plaintif and Sri K.Amarender Reddy, learned Counsel for the defendants 1 and 2 and defendants No.3 and 4 were set exparte and having stood over for consideration, the Court delivers the following:

-:JUDGMENT:-

1.This suit is filed for declaration to declare the plaintiff as the owner of the suit schedule property to an extent of 50 sq.yards out of 430 Sq.yards

Date: 13-08-2019 Prl.JCJ, Medchal

OS No. 04 of 2012 Page No.2

and also for recovery of possession from the defendants.

2.The brief averments of the plaint are that: The plaintiff is the sole and absolute owner of the suit schedule property to an extent of 430 Sq.yards situated at Dundigal village which is gramakantam land and the said property purchased by the plaintiff through the registered sale deed vide document bearing No. 2135/2006 dated 28-01-2006 and out of 430 Sq.yards the defendant No.1 and 2 encroached 50 Sq.yards and it is leased out to the defendant No.3 to erect cell tower and the defendant No.4 gave electricity connection to the said tower, therefore the defendant No.1 and 2 encroached 50 sq.yards out of 430 Sq.yards of the plaintiff, it is purchased through the registered sale deed bearing document No.2135/2006 which is purchased from the family of Md.Muzafar, Md.Rasheed, Md.Maqbool, Md.Saleem and

Md.Abaid, their ancestors were in possession and enjoyment of the property and by virtue of their possession, after death of their ancestors, the vendors of the plaintiff were in possession and enjoyment of the gramakantam land and from them the GPA holder of the plaintiff purchased and through the GPA holder the plaintiff purchased the same and the said Md.Muzafar and four others executed GPA in favour of Dr.A.Sadanand who sold to the plaintiff, therefore since from the date of purchase the plaintiff is in possession and enjoyment of the property, later applied for construction of the house vide permit No. 114/2007-2008 and after getting permission the plaintiff is waiting for the construction but the defendants who are claiming to be neighbours of the suit schedule property erected the cell tower by encroaching the property of 50 Sq.yards, therefore the plaintiff has no go except to file this present

Date: 13-08-2019 Prl.JCJ, Medchal

OS No. 04 of 2012 Page No.3

suit.

3.The defendants No.1 and 2 filed written statement. The defendants

No.3 and 4 were set exparte. The brief averments of the counter filed by defendants 1 and 2 are that the plaintiff is neither the owner nor the possessor of the suit schedule property and the suit is filed by non-joinder of necessary parties, therefore the suit is to be dismissed on that ground. The defendants 1 and 2 are the owners and possessors of the property bearing

No. 5-44, to an extent of 400 Sq.yards, it is a gramakantam land of Dundigal village and purchased through the registered sale deed bearing document

No. 8850/2001 dated 22-11-2001 and since then these defendants are in possession and enjoyment of the property within the specific boundaries, later these defendants have given the property to the company namely “Wireless TT Info Services Ltd” with an intention to erect the cell tower basing on lease dated 03-12-2009, the said company erected cell tower by obtaining electricity connection vide SC No.0154 -02335 and also a transformer was installed for proper running of the cell tower over the property to these defendants. At that time, the plaintiff interfered into the possession of the defendants, therefore these defendants filed the suit for the injunction in OS 195 of 2011 on the file of Hon’ble Principal Junior Civil Judge in which these defendants got obtained interim injunction orders, therefore these defendants never interfered into the possession of the plaintiffs and also never encroached any property. The plaintiff created a false and forged document and filed the suit as there is no physical existence of the property.

Date: 13-08-2019 Prl.JCJ, Medchal

OS No. 04 of 2012 Page No.4

Therefore the plaintiff has to establish his title and title of his vendor and the construction permission obtained by the plaintiff is already lapsed prior to the filing of the suit, therefore all the documents are created, there is no sanctity in eye of law, these defendants installed the transformer in the year of 2009 itself, therefore there is no limitation to file this present suit as the plaintiff is having knowledge with regard to the installation of the transformer, the boundaries mentioned by the plaintiff are false and created and the plaintiff filed WP No. 27629 of 2011 and the same was dismissed on 04-11-2011 in which the Hon’ble Court clearly stated that the plaintiff failed to establish his title over the property but again plaintiff filed the suit without proving title by creating false documents, hence the suit is not maintainable, so it is liable to be dismissed.

4. Basing on the pleadings and material available on record, this court framed the following issues.

1. Whether the plaintif is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit?

2. Whether the defendant has interfered with the possession of the plaintif over the suit schedule property on 18-11-2011 and 15-12- 2011?

3. Whether the plaintif is entitled for the relief of perpetual injunction as prayed for?

4. To what relief?

These issues are framed on 17-03-2015. On perusal of these issues, these are framed for perpetual injunction but as per the pleadings of both sides, the suit is filed by the plaintiff for declaration and recovery of possession but this court has not framed issues to that effect, therefore this court framing the issues today basing on pleadings of the plaintiff and

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OS No. 04 of 2012 Page No.5

defendants.

1. Whether the plaintif is entitled for declaration of the suit schedule property as prayed for?

2. If so, whether the plaintif is entitled for recovery of possession of the suit schedule property as prayed for?

3. To what relief?

5. On perusal of the evidence and documents filed by both sides, the both parties laid their evidence for declaration and recovery of possession.

Therefore this court feels that there is no need to post the matter again for the newly formed issues and the issues framed previously on 17-03-2015 are noway concerned to the matter in dispute, therefore the said issues are not considered and striked out because neither plaintiff nor defendants are claiming the perpetual injunction, therefore the said issues are not discussing below and the issues framed by this court today are discussed below as these issues are relevant to the matter in dispute and the evidence laid by both sides and documents of plaintiff and defendants are related to the issues framed today.

6. Heard both sides and perused the written arguments filed by the defendants No.1 and 2.

7. To prove the case of the plaintiff, he is examined as PW1 and marked

Ex.A1 to Ex.A7 and also examined PW2 and PW3 who are third parties to the suit and on behalf of the defendants, the defendant No.1 is examined as

DW1, marked Ex.B1 to Ex.B6. Ex.B1 is confronted through the PW1 and also examined DW2 who is third party to the suit.

Date: 13-08-2019 Prl.JCJ, Medchal

OS No. 04 of 2012 Page No.6

8. ISSUE No.1 & 2 :

(a) To prove the said issues the entire burden lies on the plaintiff to show that he is the owner and possessor of the suit schedule property and without his knowledge the defendant No.1 and 2 leased out his part of property to the defendant No.3 and the defendant No.3 erected cell tower, later the defendant No.4 gave electricity connection to the cell tower, therefore to prove the same the plaintiff is examined as PW1 and marked Ex.A1 to Ex.A7.

Ex.A1 is the Certified copy of sale deed vide document bearing No.5925 of 2001 dated 25-07-2001. As per the contents of this document, Sri

Md.Muzafar, Sri Md.Rasheed, Sri Md.Maqbool, Sri Md.Saleem and Sri

Md.Abaid executed GPA in favour of Dr.Avaru Sadanand, S/o.Chilkaiah and the page No.3 of this document goes to show that the said executants are the owners to an extent of 771 Sq.yards with house No. 3-121 situated in

Gramakantam land of Dundigal village, out of that they executed GPA in favour of Dr.A.Sadanand to an extent of 650 Sq.yards with house No.3-121 for a sale consideration of Rs.65,000/-. So, as per contents of this document the said Sri Md.Muzafar and 4 others executed GPA in favour of Sri A.Sadanand to an extent of 650 sq.yards out of 771 Sq.yards having house bearing No.3-121 and it is mentioned that the house No.3-121 was collapsed at the time of its execution. The boundaries mentioned to the schedule of property under this document at page No.9 to an extent of 650 Sq.yards with the collapsed house bearing No.3-121 are towards North: Road, South: Road, East:Open place and West: Way and Caves. So, as per this schedule of property the original owners executed GPA to an extent of 650 Sq.yards out of 771

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OS No. 04 of 2012 Page No.7

Sq.yards within the above said boundaries. Ex.A2 is the original sale deed vide document bearing No.2135 of 2006 dated 28-01-2006 and on perusal of the contents of this document, the said original owners by name Md.Muzafar and four others represented by their GPA holder Dr.A.Sadanand executed sale deed in favour of Sri Jakkula Papaiah, S/o. Sri J.Mallaiah who is none other than the plaintiff herein. The contents of the Ex.A2 sale deed at page No.4 goes to show that the original owners had land to an extent of 771 Sq.yards in Gramakantam land, out of that they executed GPA for 650 Sq.yards and from that the sale deed executed in favour of the plaintiff to an extent of 430

Sq.yards with house No. 3-121 of Dundigal village and the boundaries mentioned in page No.5 to Ex.A2 document are towards North: Road, South:

Open Place, East: Open Place and West: Way and Caves. So, as per Ex.A1 and Ex.A2, the original owners i.e. Sri Md.Muzafar and four others had land to an extent of 771 Sq.yards gramakantam land, out of that they executed GPA in favour of Dr.A.Sadanand to an extent of 650 Sq.yards and the said GPA holder Dr.A.Sadanand executed sale deed in favour of the plaintiff through

Ex.A2. The plaintiff also contending that through the GPA holder under Ex.A2 he purchased the property to an extent of 430 Sq.yards and the defendant encroached 50 Sq.yards and erected the cell tower and also constructed the basement under the tower. But, whereas on considering the documents,

Ex.A1 is showing to an extent of 650 sq.yards and as per the contents, the vendors had 771 Sq.yards, when we consider the boundaries of Schedule of property, none of the boundary is showing the remaining property of vendors i.e. Md.Muzafar and 4 others to show that there is remaining property of

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OS No. 04 of 2012 Page No.8

them, why because if the original vendors had property to an extent of 771

Sq.yards and if they executes GPA in favour of Dr.A.Sadanand to an extent of 650 Sq.yards, then there should be atleast one of the boundary shall be reflected as remaining property of vendors, but on perusal of Ex.A1 none of the boundary is showing as the remaining property of the vendors or executants of the GPA under Ex.A1. As per Ex.P2, the original owners had 771 Sq.yards, out of that they executed 650 sq.yards GPA under Ex.A1 in favour of Dr.A.Sadanand who in turn sold the property to an extent of 430

Sq.yards out of 650 Sq.yards to the plaintiff. So, while considering the boundaries under Ex.A2, this document is also not showing that there is remaining property of the vendor of the plaintiff as one of the boundary why because if the plaintiff purchased the property to an extent of 430 Sq.yards out of 650 Sq.yards from the GPA holder i.e. Dr.A.Sadanand, then the remaining property should be in existence at one of the boundaries to Ex.A2 but none of the boundary is showing that the property of the GPA holder is in existence at any side of the boundary to the suit schedule property.

Therefore, the boundaries under Ex.A1 and Ex.A2 are not proper and when coming to the boundaries mentioned as Schedule of property in plaint, the plaintiff mentioned that the defendants No.1 and 2 encroached 50 Sq.yards and erected cell tower by the defendant No.3 and defendant No.4 installed electricity connection to the cell tower and the suit schedule property is mentioned as 50 Sq.yards out of 430 Sq.yards and boundaries are towards

North: Road, South: Road, East: Open Place and West: Way and caves. So, at this stage the defendants counsel contending that the boundaries mentioned

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by the plaintiff as suit schedule property boundaries to an extent of 50

Sq.yards is tallying with the boundaries under Ex.A1 to an extent of 650

Sq.yards. Therefore, the defendants contending that the plaintiff is not clear with regard to the boundaries and further submitting that at which side property of the plaintiff was encroached is also nowhere mentioned and he further contending that the plaintiff failed to mention the boundaries to an extent of 50 Sq.yards which is alleged to be encroached by the defendants.

As per the schedule of property boundaries and also considering the boundaries mentioned in Ex.A1 are one and the same, why because the boundaries mentioned in Ex.A1 GPA in favour of Dr.A.Sadanand to an extent of 650 Sq.yards and the boundaries mentioned as schedule of property in plaint at page No.4 to an extent of 50 Sq.yards are one and the same, when the plaintiff is seeking declaration and recovery of possession to an extent of 50 Sq.yards he has to show specific boundaries to the suit schedule property but the plaintiff failed to show the boundaries to an extent of 50 Sq.yards and also not filed any document to show that the defendants encroached 50

Sq.yards which is belongs to the plaintiff and the plaintiff nowhere mentioned at which side the defendant encroached the property and when they encroached the property is also nowhere mentioned, the defendants also strongly taken such defence as there is no such cause of action to file the suit why because the defendants erected cell tower in the year of 2009 itself and it is known to the plaintiff, therefore the plaintiff failed to mention the proper cause of action, hence the defendants submitting to dismiss the suit that there is no cause of action and the plaintiff not mentioned the cause of action

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when the defendants erected cell tower and at which side of his 430 Sq.yards the alleged 50 Sq.yards was encroached by the defendants is nowhere mentioned, the boundaries to the suit schedule property to an extent of 50

Sq.yards is not mentioned but the boundaries mentioned to an extent of 650

Sq.yards covered under Ex.A1. Therefore, the entire boundaries mentioned in Ex.A1, Ex.A2 and plaint schedule of property are totally different.

(b). The further contention of the defendants is that the plaintiff claiming the relief for declaration without filing valuation certificate and without claiming mandatory injunction to demolish the structure, how the plaintiff is entitled for recovery of possession. Therefore, the defendants contending that the plaintiff failed to value it property and prayer is also not proper, however, the plaintiff is claiming the suit for declaration and recovery of possession. To seek the declaration, the plaintiff has to file valuation certificate and basing on that valuation certificate only he has to pay the court fee but he did not do so, he simply filed suit by paying nominal court fee, but even after taking such plea, the plaintiff did not take any step to amend the plaint and it is admitted by the PW1 in cross examination by the defendant counsel and the plaintiff did not take any step to amend the boundaries to the schedule property, it is also admitted by the PW1 in cross examination.

(c) The plaintiff is examined as PW1. He clearly admitted that he has not filed any rejoinder to the written statement filed by the defendants by

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denying his claim and in cross examination of PW1 he deposed boundaries to

North side boundary showing as ‘Sriramulu’s house’ and it is nowhere mentioned in plaint schedule of property or in documents and he admitted the boundaries in Ex.A1 but when the plaintiff purchased the property through Ex.A2 how the boundaries under Ex.A1 is mentioned in plaint as

Schedule of property. The further contention of the defendants is that the permission obtained by the plaintiff was lapsed prior to filing of the suit, however as per the construction permission given by the Gram Panchayat under Ex.A3 it is obtained on 05-10-2007 and it is valid upto 04-10-2009 but the suit is filed in the year of 2012, therefore at the time of filing of the suit, the permission issued by the Gram Panchayat was lapsed. The further contention of the plaintiff is that the plaintiff approached the Hon’ble High

Court and filed Writ Petition against the defendants vide WP No. 27629/2011, it is marked as Ex.A7 and further submitted that as per the orders passed by the Hon’ble High Court, the finding is that the remedy of the plaintiff is before the Civil Court, therefore, the plaintiff approached this court for declaration but the defendants contending that the Hon’ble High Court discussed the same and in that the plaintiff herein failed to establish his title, therefore it is left to the plaintiff to file the suit. However, on perusal of the finding of the

Hon’ble High Court in Ex.A7 it is clearly mentioned in Page No.3 that the

petitioner i.e. plaintiff herein ‘failed to trace out clear title in his favour or substantiate the same with reference to the relevant documents, there is a serious dispute with regard to the question whether the site over which the transformer is erected belongs to the petitioner or respondent No.4’ i.e.

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defendant No.1 herein. Therefore, as per the discussion helf by the Hon’ble

High Court at page No.3, it is clear that the plaintiff herein failed to establish his title before the Hon’ble High Court, therefore by disposing the same, the

Hon’ble High Court given a finding that the petitioner has to approach the

competent Civil Court by filing suit and claiming appropriate relief. Here also the plaintiff failed to establish his title over the suit schedule property, but to seek the relief of declaration the plaintiff has to prove his title over the suit schedule property. In this case, the plaintiff has not filed any document of the original owners to show that they were owners and possessors of the property to an extent of 771 Sq.yards of gramakantam land, Dundigal village.

Therefore, first of all, the plaintiff has to establish the boundaries to an extent of 771 Sq.yards, later he has to establish the boundaries to an extent of 650

Sq.yards and finally he has to establish to an extent of 430 Sq.yards. If there is any encroachment as alleged by the plaintiff to an extent of 50 Sq.yards, then specific boundaries to only 50 Sq.yards should be given, but without filing any documents or specific boundaries, how the plaintiff can seek the relief of declaration to declare that he is the owner and possessor of the property to an extent of 50 Sq.yards which is alleged to be encroached by the defendants as the plaintiff has nowhere mentioned with regard to the encroachment of 50 sq.yards by the defendants and whether the defendants are the owners to his neighbouring property or not it is also nowhere mentioned. Ex.A6 is the Encumbrance Certificate. It is reflecting with regard to the transaction under Ex.A1. In cross examination of PW1, he deposed new story that the vendor sold part of the property to third parties and

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remaining property purchased by the plaintiff, but who are the third parties and what extent he sold is also not mentioned either in pleadings or chief affidavit and if really the third parties have purchased the property from the vendor of the plaintiff, they should be neighbours to the plaintiff but their names are not mentioned in the document of the plaintiff under Ex.A2 at any one of the boundaries. In entire cross examination of PW1 by the defendants counsel, the plaintiff failed to file any document with regard to the encroachment and he further contending that the plaintiffs failed to establish with regard to the encroachment. However, to seek the relief of declaration and recovery of possession, there should be specific pleading with regard to the encroachment and its boundaries, but in this case the plaintiff failed to establish the same. PW2 and PW3 are the third parties and PW2 stated that the vendor of the plaintiff by name Dr.A.Sadanand did not retain any property. But, if the vendor of the plaintiff by name Dr. A.Sadanand did not retain any property, then what about the remaining property out of 650 sq.yards, if the plaintiff purchased the property of 430 Sq.yards from 650

Sq.yards there should be remaining property. So, the plaintiff has to establish whether his vendor kept the said remaining property with him or sold to third parties but whereas in cross examination the PW1 stated that after selling property by his vendor the remaining property of 430 sq.yards purchased by him. So, when the property sold by the vendor of the plaintiff prior to his purchase, there should be mentioning of one of the boundary to third party who is alleged to be purchased from the vendor of the plaintiff but PW2 stated contra to the evidence of PW1 that the vendor of the plaintiff did not

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retain any property. PW3 who is also third party stated that the vendor of the plaintiff sold to an extent of 430 Sq.yards but he did not sell any extent of the property to any other person except the plaintiff, so it is also contra to the evidence of PW1 in his cross examination. Further PW3 stated that there is no road to the property of the plaintiff but as per the schedule of property mentioned in plaint and also under Ex.A2 there are two roads at north and south side. Therefore, the evidence of PW3 also not proper. The PW1 further stated that he measured the land before filing of the suit to come to the conclusion of the alleged encroachment, but to prove the same there is no single document filed to show that he measured the land prior to filing of the suit to show that the defendants encroached the land to an extent of 50 sq.yards and it is also not mentioned in plaint or in pleadings or in his chief affidavit.

(d). The defendants who are claiming that the defendant No.1 and 2 purchased the property from its original owner through the registered sale deed vide document bearing No. 8850/2001 dated 22-11-2001 to an extent of 400 sq.yards, house bearing No.5-44 of Gramakantam land, Dundigal village. To prove the same, they filed the document which is marked as

Ex.B2. As per this document Sri Mohd. Hameed and three others sold property in favour of defendants No.1 and 2 on 22-11-2001 to an extent of 400 Sq.yards and as per the contents of this document at page No.3, the vendors had land to an extent of 771 Sq.yards, out of that they sold 400

Sq.yards including the house bearing No.5-44 for sale consideration of

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Rs.40,000/-. The boundaries mentioned as North: Road, South: Owner’s house No.5-44, East: House of Ramzan Ali and West:Neighbours land. So, as per this document the both parties purchased the land from muslim communities and as per the document the vendor of the plaintiff had 771

Sq.yards in Gramakantam land of Dundigal Village and the vendor’s vendor of the plaintiff also had 771 Sq.yards at Dundigal village of gramakantam land, whether they both are related to each other or not is nowhere mentioned and as per the contents of documents under Ex.A1 and Ex.B2, the

Ex.A1 executed prior to the execution of Ex.B2 because the Ex.A1 executed by Md.Muzafar and four others on 25-07-2001 in favour of Dr.A.Sadanand to an extent of 650 Sq.yards out of 771 Sq.yards of Gramakantam land of

Dundigal Village and as per Ex.B2 it is executed on 22-11-2001 by Mohd.

Hameed and three others in favour of defendants No.1 and 2, so both documents are executed in the same year, but Ex.A1 executed in the month of July and Ex.B2 executed in the month of November. So, after four months of execution of Ex.A1, Ex.B2 is executed and as per Ex.A1 and Ex.B2 the plaintiff purchased the property from GPA holder but whereas as per Ex.B2 the defendants No.1 and 2 purchased from the alleged ancestors of muslim community, the defendants also did not file any single link document to

Ex.B2 to show that the alleged vendors had land to an extent of 771 Sq.yards which is gramakantam land and the ancestors of the vendors of defendants

No.1 and 2 had possession and basing on that possession the government had issued G.O. in their favour and he had right and title to execute the sale deed in favour of defendants No.1 and 2, therefore the defendants also failed

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OS No. 04 of 2012 Page No.16

to file any single link document of their vendors. Ex.B1 is confronted through the PW1. It is registered postal cover containing plaint in some other suit which is filed by the defendant No.1 and 2 in the year of 2011. However, the said suit was admittedly dismissed for default. Ex.B3 is the statement to show that the defendant No.3 company is paying rent to the defendants No.1 and 2. Ex.B5 is the electricity demand notice, Ex.B6 are the photographs and there is no dispute with regard to the existence of cell tower and electricity connection to the cell tower but the dispute is with regard to the alleged encroachment of 50 Sq.yards claiming by the plaintiff, but to prove the same, the plaintiff has to establish the same why because the plaintiff himself approached this court to seek the relief of declaration and recovery of possession, so that to seek the declaration, first of all the plaintiff has to prove the ownership of the property, later he has to prove the alleged encroachment and then he can seek for recovery of possession. But, in this case the plaintiff failed to establish ownership over the suit schedule property. Therefore, when the plaintiff himself failed to prove the ownership then he is not entitled for the recovery of possession from the defendants and the defendants who are claiming the property of 400 Sq.yards including the suit schedule property, the defendant No.1 is examined as DW1 and as per the evidence of DW1 he stated that towards western side of his property, there is property of the plaintiff but the plaintiff not mentioned to show that to both east and western side of their property, the suit schedule property is in existence and DW1 clearly deposed boundaries that at western side of his property there is property of plaintiff and he clearly admitted that he gave

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the property to lease for cell towers, but in cross examination of DW1 nothing was elicited by the plaintiff counsel and DW2 who is third party has also stated that at western side of the plaintiff property there is cell tower and he is also northern side house owner and he further submitted that he do not know anything about the suit in OS No. 197 of 2011 filed by the defendants

No.1 and 2 against the plaintiff. However, in this case the plaintiff who approached this court to seek the relief, he has to establish the case but he failed to establish the same, therefore when the plaintiff failed to establish his title, then he is not entitled to seek any further reliefs against the defendants, therefore the plaintiff is not entitled for declaration and recovery of possession. Thus issues No.1 and 2 are answered accordingly against the plaintiff.

9. ISSUE No.3:

As per the discussion at Issue No.1 and 2, the plaintiff failed to establish his case, hence he is not entitled for any relief.

In the result: the suit is dismissed. No costs.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the open Court

on this the 13 th day of August, 2019.

Prl. Junior Civil Judge, Medchal, RR District

APPENDIX OF EVIDENCE

Witnesses examined on behalf of

Plaintiff Defendants PW-1: Jakkula Papaiah/Plaintiff DW-1: L.Krishna Goud/Defendant PW-2: Shakamuri Praveen/Witness DW-2: Mohd.Aslam/Witness PW-3: Chinangi Mallesh/Witness Exhibits marked on behalf of For Plaintiff Ex.A1 CC of sale deed No.5925/2001 Ex.A2 Original sale deed No. 2135/2006 Ex.A3 Original Gram Panchayat proceedings dt.05-10-2007 Ex.A4 Construction plan submitted by the vendor of plaintiff Ex.A5 Miscellaneous tax receipts dt. 05-10-2007

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Ex.A6 Encumbrance certificate dt. 14-11-2011 Ex.A7 Copy of Order of Hon’ble High Court of AP in SP No.27629/2011 For Defendants Ex.B1 Registered postal cover Ex.B2 CC of sale deed No.8850/2001 dt.22-11-2001 Ex.B3 Original Bank Statement of defendant No.1 dt.29-10-2011 Ex.B4 Original order in WP No.27629/2011 dt. 04-11-2011 Ex.B5 Original electricity bill dt. 15-12-2011 Ex.B6 Original photographs (6) Nos. along with CD Prl. Junior Civil Judge, Medchal, RR District

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OFFICE OF THE PRL., JUNIOR CIVIL JUDGE, MEDCHAL, R.R.DISTRICT

N O T I C E

Take notice that Sri B.Shekar Raj, Process Server who is working on deputation from your court in this court has been unauthorizedly absented from his duties from 20-7-2019, 22-7-2019, 23-7-2019 and also on 24-7-2019, without being granted with any kind of leave from this office.

Hence this is to require you to stop the salary of the individual for the above said 4 mentioned days and intimate the same to the undersigned.

Further you are hereby instructed not to claim the salary of the individual without receiving attendance certificate from this court.

Prl.,,Junior Civil Judge

Medchal.,

To

1. The Senior Superintendent

Senior Civil Judge’s Court

Medchal.

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OS No. 04 of 2012 Page No.24

2. Spare.

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CC No.336 / 2017 1

IN THE COURT OF THE XXII METROPOLITAN MAGISTRATE,

CYBERABAD AT MEDCHAL

PRESENT: SRI. P.PAVAN KUMAR

XXII METROPOLITAN MAGISTRATE

CYBERABAD AT MEDCHAL

MONDAY, DATED THE 13th DAY OF JUNE, 2022

CC No.336 OF 2017

Between:-

State represented by Sub Inspector of Police, PS Pet Basheerabad

...Complainant.

A N D

Chada Sampath S/o. Balanarasaiah, Age: 28 yrs, Occ: Driver, R/o. H.No.11-39, Kolanpaka village, Aleru Mandal, Yadadri District

…..Accused.

This case is coming for final hearing before me in the presence of Learned Assistant Public Prosecutor for the prosecution and of Sri B. Jayaramulu, counsel, upon perusing the material on record, upon hearing both sides and having stood over for consideration till this day, the Court delivered the following:-

::J U D G M E N T::

1.Accused is indicted for the offence alleged U/s.338 IPC in Cr.No.347/2017 on Police, PS Pet Basheerabad filing the charge sheet with the following accusation.

2.That the victim boy Master Ishaq Hussain is son of Pws1 and 2. That on 22.05.2017, at 4.00 p.m., Pw2 along with her son were crossing the main road in front of SBI Bank, Dhulapally branch, while they were walking, in the meanwhile, accused who is driver of Car bearing no.TS-08/-UE-0087 was proceeding towards

Dhulapally from Kompally, had driven his vehicle at a rash and negligent manner and had dashed victim boy from backside. Consequently, the victim boy had received severe bleeding injuries on his right leg. The injured boy was shifted to

Mallareddy hospital, where treatment was given to him and found his injuries was of grievous in nature.

3.Cognizance was taken for offence U/s.338 IPC against the Accused and issued summons to Accused. On appearance, Accused was furnished with copies of

CC No.336 / 2017 2

the documents U/s.207 Cr.P.C and was examined U/s.251 Cr.P.C explaining the accusation leveled against him, for which he pleaded not guilty and claimed to be tried.

4.Prosecution had examined Pw1 to Pw5 and marked Ex P1 to P4. ExP1 is

Complaint dated 22.05.2017, ExP2 is Scene of offence panchanama, Ex.P3 is FIR

dated 22.05.2017 and Ex.P4 is MLC report. After closer of the prosecution

evidence, accused was examined with incriminating evidence brought against him, for which he denied the truthfulness of it, yet submitted no defence evidence on his behalf.

5.Heard, the learned APPO and Heard the learned counsel for the accused at length.

6.it Is argued by prosecution on par with the opinion of investigating officer and submitted that prosecution had proved the case by virtue of evidence of Pw1 to

Pw5.

7.It is argued by learned defence counsil that accused never caused the accident and that victim boy fell by himself and sustained injuries. That, there is no eye witness to the scene of offence. Pw5 who is investigating officer had admitted that Pw2 never stated to police that she can recognize the driver of crime vehicle and she not described the identity particulars of accused. There is no skid marks.

No speed of crime vehicle was stated by Pw5, no blood stains was collected, no independent witness was examined and lastly submitted that accused was not subjected to test identification parade, thus Pw2 identifying accused cannot be believed.

CC No.336 / 2017 3

8.Point to be Determined ::: Whether the prosecution has proved the guilt of the Accused for the offence U/s.338 IPC beyond all reasonable doubt?

9. Point:-

In nutshell, it is case of prosecution that, victim along with his mother were returning home from SBI Dulapally branch. Accused who is driver of motor car bearing no TS-08/UE-0087 had driven his vehicle at high speed and dashed victim boy. Accused was intercepted by some bikers and was brought back to the scene of offence. Pw1 who is father of victim boy had come to the scene of offence immediately after the accident as he resides nearby. Accused who was happened to brought back to the scene of offence by some bikers, had taken the victim boy accompanied by his father(Pw1) to hospital for treatment.

10.To prove the prosecution case, learned prosecution has examined Pws1 to

Pw5.

10.1 Pw1 testified that, on 22-05-2017, in between 3.30 and 4.00 p.m., while his wife i.e. Pw2 along with their son was returning from SBI Bank, Dhulapally branch, a four wheeler at a high speed had dashed their son and he did not pull over his vehicle. He further went ahead. One person who is in a two wheeler had overtook the said four wheeler and had intercepted him and brought him back to the scene. His son was then taken to hospital in the said four wheeler which is a crime vehicle. That, his son has sustained fracture injuries. His son had received sutures on his forehead, received abrasion injuries over his stomach, his mass was removed from his right calf and it was used to replace over the injured region.

10.2 Pw2 testified that, on 22-05-2017, she went to SBI Bank, Dhulapally branch along with her son. Her son was 6 1/2 yrs old by then. It was about 3.30 p.m., while she was returning home along with her son, in the meanwhile a Car which

CC No.336 / 2017 4

was plying at a high speed had dashed her son. Her son fell down. Blood was oozing out of him. She had seen the incident and was alarmed. she felt giddiness.

The driver of the crime vehicle had taken her son and her husband to Mallareddy hospital for treatment. Negligence was purely of the crime vehicle. After dashing her son, the crime vehicle did not stop. She was screaming. Passersby who were on two wheeler had intercepted the crime vehicle and brought him back to the scene. Her son has received grievous injuries and accused was the person who standing in the Court is the driver of the crime vehicle.

10.3 Pw3 testified that, on 22-05-2017, while he was plying from the scene of offence, he heard that there was an accident. Police has stopped him and asked him to be as a panch witness. Police has conducted scene of offence panchanama and he had signed on it.

10.4 Pw4 testified that, he was coming from Kompally towards Dhulapally. He resides at Dhulapally. He had learnt that an accident happened near Dhulapally. He was present among many persons at the scene of offence. Police had conducted panchanama about the accident. Thereafter, police had read over the panchanama and he has signed on it.

10.5 Pw5 testified that, on 22-05-2017, he was incharge SHO of Police Station.

He had received a report from Pw1. He had registered the crime. He had recorded the statement of Pw1. Thereafter, he went to the scene of offence, which is located near SBH, Dhulapally. He had secured two panch witnesses i.e. Pws3 and 4 and conducted scene of offence panchanama and drew rough sketch in their presence.

On 22-05-2017, he had recorded the statement of Pw2. He went to Mallareddy hospital at Suraram, where he had recorded the statement of Pw2. On 24.05.2017,

CC No.336 / 2017 5

they have arrested the driver of the crime vehicle. MLC report was collected from

Lw5. His investigation revealed that accused was driver of the crime vehicle bearing no.TS-08/UE-0087 which was driven by him at rash and negligent speed from Kompally to Dhulapally and caused accident to the son of Pws1 and 2 while

Pw2 was about to cross the road along with her son.

11.Thus, having perused the evidence and having heard the prosecution and defence counsil, I believe there is no denial of the fact of victim boy receiving injuries. But, the denial is to the extent of involvement of crime vehicle and role of accused in this case. Thus, in order to adjudicate whether there exist guilt against accused or not, it is require for this court to primarily examine a question of fact of whether accused was driver of crime vehicle?

12.In order to prove that accused is the driver of crime vehicle, we see the relevant evidence we find is of Pw1, Pw2 and Pw5. As we know Pw1 and Pw2 are parents of victim boy. Pw5 is investigating officer. Pw3 and Pw4 are panch witness who testified of the fact of police conducting scene of offence panchanama and their evidence is wholly reliable. From the testimony of Pw1, we find that

Pw1 mentioned a four wheeler at high speed had dashed his son. However, the said four wheeler did not pullover his vehicle and went ahead. One person in two wheeler had intercepted him and brought him back to the scene. His son was then taken to the hospital in the said four wheeler which is the crime vehicle. it is pertinent to mention that, Pw1 admitted in cross examination, that, at the time of accident he was in his shop. Thus, he is not a direct eye witness to the incident of accident.

However, his testimony is relevant circumstantially to the extent of the fact that accused had taken him and Victim boy to hospital. There is an admission which is brought on record where Pw5 testified in cross examination that “Pw1 had not stated to him that accused had taken victim to hospital in his car”. Thus, by taking indulgence of this court to such admission of Pw5, learned defence counsil wanted this court to discard the evidence of Pw1 to such extent. Surprisingly, learned defence counsil did not put such suggestion to Pw1, suggesting that, Pw1

CC No.336 / 2017 6

did not mention to Pw5 that accused had taken victim boy to hospital in his vehicle. Now, under such circumstances, without putting a question in the form of suggestion to Pw1, any material extracted from Pw5(investigating officer) will be futile exercise to advocate that there is omission. Unless and until defence put a suggestion to witness and when the said witness denies it with regard to an omission, it is required to put such suggestion to investigating officer to elicit whether such witness has stated before him such particular omission or not.. And when investigating officer admits that witness did not state before him the said portion, It amounts to omission. Thus, this court cannot proceed to treat admission of Pw5 as omission of Pw1 much less contradiction.

12.1 Supporting the version of Pw1, Pw2 testified that she went to SBI Dulapally branch along with her son. It was about 3.30 PM, while she was returning home, a car at high speed dashed her son. He fell down. Blood was oozing out. Passersby who were on two wheeler had intercepted crime vehicle and brought back driver to the scene. Driver had taken her son and her husband to hospital.

12.2 It is germane to mention that, testimony of Pw2 is having nexus with that of

Pw1 to connect the link in saying accused is the driver of crime vehicle. Pw2 is the eye witness of the incident. As per her testimony, it can be deduced that initially she happened not to see the driver of crime vehicle. But, it was when passersby who overtook the crime vehicle and brought him back to the scene of offence where she had seen the driver, and from there victim boy and his father was taken to hospital. Evidence of Pw1 is corroborated with that of Pw2 to the extent of the fact that driver of crime vehicle had taken victim boy accompanied by Pw1to hospital.

12.3 Further, it is relevant to refer to the cross examination of Pw2, where she denied the suggestion of her not mentioning in her previous statement to police that she did not mention that passersby had intercepted crime vehicle and brought him back to scene of offence. it is admitted by Pw5 that such statement was not made to him which makes such statement an omission.

CC No.336 / 2017 7

12.4 Yet, there is another suggestion put to Pw2, where she expressed lack of her memory to recollect whether she stated before police or not that driver of crime vehicle had taken her son to hospital. in putting such question, I believe learned defence would want to disprove prosecution case by mentioning that accused was not brought back to the scene of offence, consequently there is no way accused had taken victim boy and his father to hospital. Surprisingly, such suggestion was not put to investigating officer or confronted with, which makes this court to believe that such defence is not prove. Accordingly, this court believe that driver of crime vehicle is accused who had taken victim boy and his father to hospital.

12.5 It is testified by Pw5 that accused is the owner of crime vehicle. No evidence is put forth by accused to prove that he is not the owner of crime vehicle or that to prove crime vehicle belongs to some third person. Perhaps, negative evidence is not always possible but circumstance like the one in hand, it is possible. It would be easy for a man to apply through proper channel to procure details of the owner of crime vehicle which of course will be in public domain. No difficulty perse can be fastened. It is testified by Pw5 that accused is the owner of crime vehicle. when he is the owner of the crime vehicle, intrinsically he would be driving the vehicle.

Even if this court entertains a doubt whether accused though being the owner of crime vehicle might not have driven the vehicle, burden would be on accused to prove such fact necessarily not beyond reasonable doubts but to the extent of probability. Certainly, when no such suggestion of defence I perceive from the side of accused, and when accused was identified in the open court by Pw2 that he was the driver of the crime vehicle, it is sufficient to rely after abundance of caution that accused was the driver of crime vehicle.

13.It is also argued by learned defence counsil that Pw2 never stated in her previous statement that she can identify driver of crime vehicle. it is to be understood pragmatically how police examine the witness. After any ghastly incident, witness would be pushed to trauma, one cannot weigh nor experience the ordeal they pass through. It would be easy for one to mention that witness omitted to mention. Relevance here is with regard to the identity. It should be understood by us under all practical circumstances that examination of witness by police does not transpires with luxury of time, patience and plush atmosphere. Answer

CC No.336 / 2017 8

depends on the question. There are some facts which one may find very relevant to mention. There are some which one may not find relevant to mention. There are some facts which are very much essential to mention which are root cause to launch prosecution against specific person like in our case at hand the vehicle which caused the accident and what transpired for the cause of accident. Witness perhaps would not posses such acumen to mention about description of perpetrator unless questioned by investigating officer. It depends on the wisdom of the individual in understanding the consequence of their previous statement and the complex nature of proving a fact during the course of trial surrounded by defence version which seldom need proof.

A question arise intrinsically whether investigating officers are exhibiting such acumen? In criminal justice system, innocence of accused is deemed unless proven guilty. However, mathematical precision is not possible as we are here to adjudicate a fact and when such fact passes through human intelligence, it certainly develops infirmities. Such minor infirmities if not disturbs the roots of the case, it should not be fatal for prosecution. Here infirmities should also include omissions, when such omissions are possible under the attending circumstances of the case, it should never be adjudged fatal for prosecution.

Thus, mathematical precision is not possible to prove a fact always. Now, it is discussed in view of the innocence of witness in understanding complex nature of criminal justice system where victim is the last person to accrue benefit for the wrong committed upon him. Under such circumstances, every omission should not be contemplated fatal unless it is intrinsically disturb the roots of the case.

14.Another defence that there is no independent witness from the side of prosecution. Having independent witness is not a rule. it is duty of investigating officer to see whether there exist any independent witness or not. It is also to be understood that the place of accident is a busy road as suggested by learned defence counsil. Accidents happens in spur of moment. Possibility of having independent witness depends on the existence of any independent witness which is duty of investigating officer to investigate upon. When no independent witness was cited upon by the investigating officer, prosecution case cannot be discarded

CC No.336 / 2017 9

ipsofacto as it is not rule but prudence which depends upon the attending circumstances. Under such circumstances, I believe, having no independent witness is not fatal for prosecution.

15.Thus, this court believe that when it was categorically mentioned by Pw2 that crime vehicle had dashed victim boy, it is accused who had caused the accident. Therefore, the question of fact framed above is proved in affirmative.

16.Now once it is proved that accused was the driver of the crime vehicle who caused the accident, it is now to get into essential portion of S.338 IPC to contemplate whether accused is guilty or not. For which I find it appropriate to extract S 338 IPC, which reads as follows:-

Sec 338 IPC: Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

17.Thus, on reading the section, for one to held guilty of this offence, he need to do some act rashly or negligently which endanger human life and consequently should cause grievous hurt. From the facts in hand, accused did an act of driving his motor car, caused accident and consequently caused grievous injury as per Ex

P4 which is MLC report which shows that victim boy sustained wound over right knee, open injury, crush injury over right ankle, further it is mentioned by Pw1 that victim boys mass was removed from his right calf and was used to replace over the injured region, which suggest the plight of boy and ordeal of the family.

18.It is one of the defence that boy fell by himself and accident was not caused by accused. Even hypothetically, if it is assumed that the boy fell by himself, I believe the injuries would be trivial but not he would sustain injuries as per Ex P4.

The nature of injury inflicted upon accused describes the ghastly incident.

Nevertheless not would have transpired unless with the dangerous driving of accused. It is mentioned by Pw2 that, she witnessed accused having driven at high speed and caused the accident. it is brought on record by learned defence counsil through cross examination of witnesses that the scene of offence is single road and

CC No.336 / 2017 10

it busy road as well. I believe in putting such questions, learned defence counsil would like to impress upon this court by saying that there is no probability of accused driving at high speed. However, it is pertinent to understand that the time of accident was in between 03.00 and 04.00 Pm. Single road and busy road does not mean there will be traffic congestion and there would be no possibility of driving at high speed. In mentioning the scene of offence as busy road, it should be understood that the road is frequently used by commuters. For perpetrators, a busy road perhaps may look like a race track. Speed has become a menace. Had accused driven at controlled speed, even if there was accident, it would not have caused grievous injuries.

19.Accused failed to pullover his vehicle after the accident. The said subsequent conduct also has relevance and suggest his previous conduct. Accused hesitated to pullover his vehicle immediately upon the accident, which implies that he was abundantly cautious that he did wrong and public may fierce upon him. The said conduct of accused in escaping from the scene suggest his nature of speed driving.

Thus, there is no question of skid marks as was taken one defence. While one using the road, it is duty incumbent upon him to see his act cause no hazardousness to commuters. It is not the case of accused that victim boy had suddenly or negligently came before him which caused the accident.

20.It is maintained by defence since the inception of trial that accused did not hit the victim boy while the fact proved was vice versa. Under such circumstance, for the failure of the part of accused to maintain a controlled speed, for the fact of victim boy was inflicted with much grievous injuries as discussed above, one would perhaps access the speed. The fact that the scene of offence is single road, commuters should be cautious. One would naturally develop instinct of pedestrians movement if one maintain controlled speed of driving. From the present facts, it is believed that accused failed to maintain controlled speed, that accused failed to adhere with the natural duty incumbent upon him in using the road while to be cautious to avert any hazardous incident against other commuters of pedestrians, in our case the pedestrians, which caused the accident which squarely falls within the meaning of negligence.

CC No.336 / 2017 11

21.In support of the defence of accused, the learned counsel for accused has relied upon the judgment of Hon’ble High Court of Judicature of Andhra Pradesh at Hyderabad in K. Rajaiah Vs. State of Andhra Pradesh, 2010 (2) ALD (Crl.) 376 (AP), wherein the Hon’ble High Court in Para No.41 stated that:

“in the instant case, since the evidence of Pws4 and 7 is not inspiring confidence, their evidence cannot be taken as corroborative evidence to the evidence of Pw3. Even otherwise, evidence of Pw3 is not inspiring confidence.

Moreover, there is another aspect in this case. Though the prosecution witness of the case deposed that the accused drove the bus at a high speed, none of the witnesses had deposed that the driver of the bus had driven the bus in rash and negligent manner. Mere driving of a vehicle at a high speed cannot be considered as rash and negligent driving. Of course, the drivers must be careful and they must keep the vehicles in their control whenever they are passing through a village or nearing a school. Unfortunately in this case, there is no evidence to show that any signboard was kept showing the location of school. Normally speed-breakers are to be laid to control the speed of the vehicles near the schools. It is unfortunate that even the scene of offence panchanama shows that there are no speed-breakers near the school. The school authorities and concerned officials must take proper steps and see that speed-breakers are laid near the schools to avoid accidents. In the absence of any speed-breaker and in the absence of any signboard near the location of a school, if the driver drives a bus at a high speed, it cannot be treated as rash and negligent driving. Inspite of speed-breakers, signboards and observing the school or the children, if the driver drives the bus at a high speed, the same may amount to rash and negligent driving on the part of the driver of the bus. But nothing can be inferred without any legal evidence. No conviction can be based on assumptions and presumptions or any inference can be drawn not basing on legal evidence. Merely because a ghastly accident has occurred resulting in death of some persons, the accused cannot be convicted.”

In the said case before the Hon’ble High Court, the facts was that, no witness has deposed that the driver of the bus had driven the bus in rash and negligent manner, that there is absence of signboards near the location of the school and there is absence of speed-breakers, as such, mere driving bus at high speed does not constitute rash and negligent act. However, the present case facts before us

CC No.336 / 2017 12

differs with the case facts as relied upon by the learned counsel for defence.

Certainly, there is no signboards nor any speed-breakers at the scene of offence.

However, it is required to observe that, Pw2 had specifically mentioned of accused had driven his vehicle negligently and caused the accident. Further, it is required for us to comprehend from the defence of accused that the scene of offence is a busy road. when it is suggested by accused himself that when scene of offence is a busy road, when it is proved to the satisfaction of this court that accused has driven his vehicle at high speed, which by itself is sufficient for this court to believe that a negligent act was committed by accused.

22.Further the learned counsel for defence had relied upon the judgment of

Andhra Pradesh High Court in Jarapala Deepala @ Babu Rao and Others reported in 2005(2) Andh LD (Criminal) 818, wherein in para no.30, the Hon’ble High

Court had stated that:

“Be that as it may, the fact remains that no test identification parade was conducted in order to corroborate the oral testimony of the witnesses given in

Court after a long lapse of time. As there is a long gap between the date of offence and date of examination of the witnesses in this case, failure to hold test identification parade is fatal to the case of prosecution. Therefore, in my considered view that the Courts below erred in placing reliance on the identification of the accused by Pws1 to 7 in the Court for the first time after a period of more than 2 1 / 2 years. Thus, this point is found in favour of the revision petitioners and against the prosecution.”

However, the facts upon which the learned defence counsel relied by the said decision of Hon’ble High Court, wherein credibility of identification of accused as the robbery transpired during the night hours was at question.

However, the present facts is concerned, when accused happened to spend some time with victim family by taking the victim boy to hospital, there arise no question of doubt upon trustworthiness of witness(Pw2) identifying accused in the open court. As discussed by this court with regard to possibility of Pw2 identifying accused and the offence which transpired

CC No.336 / 2017 13

herein during the day time, all together cause this court to believe that Test identification parade is not sine qua non(essential).

23.In the result, accused is FOUND GUILTY for the offence charged U/s.338

IPC and he is accordingly CONVICTED under Section 255(1) Cr.P.C. The bond and bail bond of the accused and the sureties stands for a period of 6 months.

Dictated to Stenographer, typed by him, corrected and pronounced by

me in the open court, this the 13 th day of June, 2022.

Sd/-

XXII Metropolitan Magistrate Cyberabad At Medchal 17-06-2022

24.Plea Of The Accused On Conviction:-

Accused failed to appear before this court for judgement. Consequently, this court had to pronounce the judgement and issued NBW to accused to secure his presence for hearing on the quantum of sentence. Accused submitted that he hails from poor family and thus pleaded to take lenient view. Since accused failed to be present before this court for judgement, and until the NBW was executed he did not appear voluntarily which warrants this court to be no lenient on accused.

Consequently, I find no reason to invoke Probation of Offenders Act.

Further, in addition, I invoke S. 353(3) Crpc for imposing compensation to the victim. Heard learned Appo and accused on the component of compensation.

Learned Appo submitted that victim boy underwent a complex surgery where his mass was removed from leg to join it in other injured regions, which suggest the cost it would have incurred. Further submitted that the ordeal of the family also be taken into consideration for the wrongful act of accused. No arguments advanced by accused on the component of composition. Having heard prosecution and having of the opinion that the surgery would have costed the victim family substantially. Nevertheless, the plight, ordeal of victim family cannot be merely ascertained as there is no yardstick. Yet, it is determinable that such compensation should be deterrent enough.

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25.SENTENCE:-

From the above, this court holds that, Accused shall undergo

simple imprisonment of 3 Months (Three Months) and shall pay

compensation of Rs 1,00,000/- (One Lakh) to Pw1 and Pw2

combinedly, which I believe will be alleviating their ordeal and

would render punitive enough on accused. Compensation awarded

by taking into consideration the age of victim boy. Compensation be

paid within Two months. Failing which accused would serve simple

imprisonment of 6 months(Six Months) as default sentence.

Default sentence shall run consecutively..

The remand period underwent if any by the accused shall be given set

off U/sec.428 Cr.P.C.

26.The office is directed to furnish the free copy of judgment to the accused forthwith. Accused are apprised of their right to prefer appeal before the Hon’ble

District and session court, Medchal - Malkajgiri District at Malkajgiri. Further apprised of his right to free legal services provided by District Legal Service

Authorities. Accused is also informed about the forum of appeal and the limitation.

Prepared by myself, corrected and pronounced by me in the open Court

on this the 17 th day of June, 2022.

Sd/-

XXII Metropolitan Magistrate, Cyberabad at Medchal

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTIONDEFENCE

P.W.1 : Mujahid Hussain, Complainant None P.W.2 : Afshana Khajun, Mother of injured P.W.3 : Devender, mediator for scene of offence panchanama P.W.4: Sk. Shabuddin, another mediator for scene of offence panchaname P.W.5: T. Satyanarayana, IO

DOCUMENTS MARKED FOR

PROSECUTION: DEFENCE:

Ex.P1 Complaint dated 22.05.2017None Ex.P2 Scene of offence panchanama Ex.P3 FIR dated 22.05.2017 Ex.P4 MLC report

Material Objects:-

-Nil- Sd/- True Copy XXII Metropolitan Magistrate Cyberabad At Medchal

OS.No.44 of 2015 Page No.1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE,

AT: MEDCHAL

PRESENT:- Smt. M.Aruna, Prl. Junior Civil Judge, Medchal

Original Suit No.44 of 2015

On this the 27 th day of August, 2019

Between:- Dr.Chintala Yadagiri, S/o.Late Dr.Chintala Mallaiah, Aged about 60 years, Occ:Social worker, R/o.H.No.6-229, Vani Nagar, Chintal, Quthbullapur Municipal Circle and Mandal, GHMC, Ranga Reddy District … Plaintiff

and

Smt.T.Balamani, W/o.T.Balakrishna, Aged about 46 years, Occ:Housewife, R/o.H.No.6-221, Mahendra Nagar colony, Chintal, Quthbullapur Municipal Circle and Mandal,

GHMC, Ranga Reddy District ... Defendant

This suit came before me on 14-08-2019 for final hearing and disposal in the presence of Sri J.Rama Krishna, learned Counsel for the plaintiff and Sri M.Goverdhan Reddy, learned Counsel for the defendant and having stood over for consideration, the Court delivers the following:

-:JUDGMENT:-

1.This suit is filed for perpetual injunction and consequential relief of

Mandatory injunction directing the defendant to remove the structure raised in the suit schedule property.

2.The brief averments of the plaint are that: Previously, the plaintiff has filed the suit for perpetual injunction claiming that the plaintiff is the owner and possessor of the suit schedule house site land admeasuring 98 Sq.yards in Sy.no.40 situated at Vani nagar colony, Chintal, Quthbullapur Municipal

Circle, RR District, the said property purchased from Maddalla Krishna,

S/o.M.Balaiah in the year of 1989 through an unregistered agreement of sale

dated 21-09-1989 and later it was regularized by the District Registrar, RR

District on 25-04-2005 and the Registrar authorities collected stamp duty,

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OS.No.44 of 2015 Page No.2

since from the date of purchase the plaintiff is in uninterrupted possession and enjoyment of the property to the knowledge of one and all in the locality.

The defendant herein is posing himself as owner to the plot No.1A forming part of Sy.no.44/AA situated at Mahendra Nagar, Quthbullapur Municipal

Circle, RR District and she alleged to have been obtained building construction permission for her plot from the local municipality and under the guise of the permission the defendant is trying to encroach the suit schedule property of the plaintiff without having any manner of right whatsoever in the property of the plaintiff, therefore the plaintiff lodged complaint to the PS

Jeedimetla, on that the police Jeedimetla wrote a letter to the Deputy

Collector and Tahsildar to demarcate the land in Sy.No. 44/AA and 40, basing on that the Tahsildar and Deputy Collector addressed a letter dated 01-07- 2013 to the SHO, Jeedimetla stating that ‘as per the report of Mandal

Surveyor the land in Sy.no. 44/AA and 40 of Quthbullapur Village are not visible in the village map and also the related Tippans are not available in the office, hence to take further action after demarcation of the disputed site and further given a direction that both parties should not be entered into the disputed land until demarcation of the land’, but the defendant is an influenced person, having Mahila Organization support came to the suit land on 16-02-2015 and tried to interfere but with timely intervention of the neighbours and well wishers she could not succeed, therefore the plaintiff filed the suit for perpetual injunction and during the pendency of the suit and even when the Status-quo orders was in subsistence, the defendant made construction on the property of this plaintiff, therefore the illegal construction made by the defendant is to be removed as it is illegally constructed without having any right or title, hence the plaintiff further amended the plaint for seeking the relief of mandatory injunction, therefore requesting to grant perpetual injunction and also consequential relief of mandatory injunction.

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OS.No.44 of 2015 Page No.3

3.The defendant filed the written statement but after amendment he did not choose to file additional written statement and the brief averments of the written statement filed by the defendant at the time of filing of the injunction suit by the plaintiff are that the plaintiff is neither the owner nor the possessor of the house site i.e. suit schedule property, there is no such registered sale deed executed by the alleged owners, the defendant is the absolute owner and possessor of the plot No. 1 A forming part of Sy.No.44 situated at Mandranagar, Quthbullapur Municipality Circle, RR District, in the year of 2004 when the plaintiff tried to encroach the property of this defendant, this defendant lodged complaint to the police and thereafter a sale deed of similar type of suit document was created on the name of the plaintiff’s wife and occupied the part of the temple land along with existing road and when the locality people opposed the same, the plaintiff thorugh his wife filed a false suit against this defendant in OS No.82 of 2005 on the file of the Hon’ble II Additional Junior Civil Judge, RR District at Medchal and obtained ad-interim orders and under the guise of the interim orders the plaintiff constructed the compound wall illegally by encroaching the land of the temple, therefore the municipal authorities removed the illegal construction of compound wall and prevented the public road and temple from encroachment, later the plaintiff and his wife filed Writ Petition vide WP

No. 9579/2005 on the file fo the Hon’ble High Court against the Municipal

Authorities and also this defendant and the said WP was also dismissed on 28-04-2005. Later this defendant obtained approval from the municipal authorities vide proceedings No.G/BA/408/902/2004-05 and when she commenced the construction work, the plaintiff again lodged criminal complaint under the provisions of SC & ST (Prevention of Atrocities) Act and the said case is numbered as SC No. 115/2008, later which was ended in acquittal on 07-02-2011 after contesting by this defendant. Subsequently,

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OS.No.44 of 2015 Page No.4

the wife of the plaintiff filed the suit in OS 82 of 2005 which was dismissed on 05-09-2011 and this defendant waited till completion of appeal period for construction of the house and after completion of appeal period, this defendant started construction, then again the wife of the plaintiff preferred

Appeal AS No.302/202 in OS No.82 of 2005 with a delay petition to condone the delay of 186 days and also filed another application seeking temporary injunction, the said Interlocutory Application was dismissed on 30-11-2012, subsequently, AS No.302 of 2012 was also dismissed on 10-03-2014 after contesting by this defendant, then after dismissal of all appeals and the suits this defendant again got approved the proposed building plan dated 07-05- 2012 and commenced the construction work which is now almost at the stage of completion, therefore the plaintiff filing the cases one after one for the same property and harassing this defendant. Hence, the plaintiff is not entitled to seek any relief against this defendant, so requesting to dismiss the same.

4. Basing on the pleadings and material available on record, this court framed the following issues.

1. Whether the plaintiff is entitled for the Mandatory Injunction as prayed for?

2. Whether the plaintiff is entitled for the perpetual injunction as prayed for?

3. To what relief?

5. After framing of issues, the plaintiff is examined as PW1, got marked

Ex.A1 to Ex.A5 and through him Ex.B1 to Ex.B3 are confronted and also to support the version of the plaintiff examined the PW2 who is third party and through him Ex.B4 is confronted. On behalf of the defendant, he did not choose to file any evidence and also not examined anyone, except the documents under Ex.B1 to Ex.B4 those are confronted through PW1 and PW2,

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OS.No.44 of 2015 Page No.5

no other documents are filed by the defendant.

6. Heard both sides and perused the record.

7. ISSUE No.1 & 2:

(a) To prove these issues the plaintiff has to establish with regard to title and also he has to establish the alleged illegal construction alleged to be made by the defendant in and over the suit schedule property. Therefore, to prove the above said issues, the plaintiff is examined as PW1 and marked

Ex.A1 to Ex.A5. The contention of the plaintiff is that he purchased the suit schedule property from Maddela Bala Krishna, S/o.M.Balaiah through the sale deed dated 21-09-1989 and the said sale deed was regularized by the District

Registrar on 25-04-2005.

(b) To support the same, plaintiff filed the unregistered sale deed dated 21-09-1989 and as per the contents of the sale deed the vendor by name

Maddella Krishna was the owner and possessor of the open plot in Sy.No.40 admeasuring 98 Sq.yards situated at Vaninagar Colony, Chintal under

Quthbullapur Municipality and by receiving the sale consideration of

Rs.49,000/- he sold the property to the plaintiff covered under this document. The schedule of property mentioned in this document is an open plot bearing Sy.Nol.40 admeasuring 98 Sq.yards and boundaries are towards

North: Open plot No.34, South: Open plot belongs to Chintal Laxmi Devi,

East: Land belongs to K.Narayana and West: Mysamma temple and lane.

But except the mentioning of the ownership, how the vendor of the plaintiff acquired the property, whether it is ancestral property or self acquired property and what are the documents handed over to the plaintiff at the time of purchase and what is the total extent of the property in Sy.No.40 held by his vendor is nowhere mentioned and in plaint also it is not mentioned and the entire pleadings of the plaintiff and also chief of PW1 is silent with regard

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OS.No.44 of 2015 Page No.6

to the ownership of his vendor, why because the plaintiff is claiming that he is the owner and possessor of the suit schedule property and submitting that the defendant who is noway concerned to it made construction illegally by encroaching his property. Therefore, at this stage, the plaintiff has to establish his clear title to the suit schedule property. So, to prove the title of the plaintiff, the plaintiff has to file the valid documents belongs to him and his vendor as per the procedure, but in this case, plaintiff filed only the unregistered sale deed only which is validated. So, if it is validated it can be used for only collateral purpose to see the possession of the plaintiff in injunction suit and if it is specific performance suit, it can be used for collateral purpose to show that there was a transaction took place for the property, but in this case the plaintiff is seeking perpetual injunction and also mandatory injunction. To seek the relief of perpetual injunction the plaintiff must establish his possession and also title but as per Ex.A3 sale deed it is validated one and there are no contents of his vendors title. The contents of the sale deed is not reflecting how the vendor acquired the property and what is the nature of the property is also not mentioned, but the plaintiff simply claiming that it is an open plot having an extent of 98 Sq.yards in

Sy.No.40. So, as per this version, the plaintiff is claiming small piece of land which seems to be house site. So, if it is a house site what are the plots made by his vendor and what are those numbers, whether it is approved by

Gram Panchayat layout or HMDA layout and how many plots were made by the vendor all these issues are silent and Ex.A3 sale deed is not disclosing the same. To support the boundaries mentioned in Ex.A3 sale deed at page

No.2, on what basis the said boundaries mentioned, whether there is any layout or any other supportive documents, it is also not mentioned by the plaintiff and also not explained to this court. Therefore, Ex.A3 is not sufficient to prove the title of the plaintiff and mere validation of the document does

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OS.No.44 of 2015 Page No.7

not create any right or title to the plaintiff over the property covered under that document, so it can be used only for collateral purpose to look into the possession of the parties, it does not establish the title of the plaintiff.

(c) The further contention of the plaintiff is that his vendor had land from which he purchased the property, to that he filed Ex.A1 and Ex.A2 pahanies for the year of 1980-81 and 1988-89. On perusal of these pahanies in Sy.No.40 pattadar name is mentioned as Maddella Balaiah to an extent of

Ac.0-19 guntas but in possessor column it is mentioned as M.Krishna. Ex.A2 is the pahani for the year 1988-89. It is reflecting that in Sy.no.40 the pattadar name is mentioned as Maddella Balaiah, S/o. Kistaiah and in possessors column it is reflecting the names of Maddella Krishnaiah and four others for total extent of Ac.0-19 guntas. So, as per this pahani for the year 1988-89 the total extent of Ac.0-19 guntas in Sy.No. 40 was in possession of five persons but the plaintiff nowhere mentioned with regard to the total extent of the property in Sy.No.40 and the names of the persons mentioned in pahani under Ex.A2 as possessors. Ex.A4 is the letter dated 01-07-2013 addressed by the Deputy Collector and Tahsildar to the Station House Officer,

Jeedimetla as reply to the letter addressed by the SHO, Jeedimetla dated 17- 11-2012 basing on complaint made by the defendant. As per the contents of this document it is showing that ‘as per the report of the Mandal Surveyor the Sy.Nos. 44/AA and 40 of Quthbullapur Village are not visible in the village map and the related Tippons are not available in the office of Assistant

Director, Survey and Land Records, RR District, therefore given the direction to the plaintiff and defendant not to enter into the dispute land until demarcation of the land’. But the plaintiff contending that even after issuance of the letter to the SHO under Ex.A4, the defendant constructed the structure and therefore it is illegal and unauthorized, hence requesting to

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OS.No.44 of 2015 Page No.8

demolish the same by way of mandatory injunction. So, the plaintiff seeking the relief of Mandatory injunction and further submitted that as per the photographs under Ex.A5 dated 01-03-2015 the construction was going on even during the subsistence of orders under Ex.A4. Therefore, on perusal of

Ex.A1 to Ex.A5, Ex.A1 and Ex.A2 are not supporting the version of the plaintiff and the Ex.A3 is the unregistered sale deed which is validated, the said document do not create any right or title to the plaintiff to seek the relief of mandatory injunction because to seek the relief of mandatory injunction the plaintiff must prove possession over the suit schedule property and to prove the possession of plaintiff, he has to establish title and possession, therefore to establish the possession of the plaintiff, he has to file the document but except Ex.A3 sale deed date 21-09-1989, there is no other corroborative or link documents filed him to show that as on the date of filing of the suit in the year of 2015 he is in possession and enjoyment of the property and the defendant made construction illegally on his land. PW1 who is cross- examined by the defendant counsel stated that he purchased the property under unregistered sale deed. So, admittedly, it is an unregistered sale deed which is marked as Ex.A3 and it is validated and in cross examination of PW1 the documents under Ex.B1 to Ex.B3 are confronted.

(d) The defendant counsel submitted that the defendant is the owner and possessor of the property plot No.1/A forming part of Sy.No.44 and the plaintiff filed the suit in OS 82 of 2005 when the plaintiff tried to encroach the temple property while constructing the compound wall, the defendant and other colony people obstructed, even though, he raised construction of compound wall by encroaching the road and temple property, therefore the plaintiff created the similar type of documents and filed the suit in OS 82 of 2005 on the file of Hon’ble II Addl. Junior Civil Judge, Ranga Reddy District

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against the defendant in which the plaintiff obtained interim order, under the guise of order he completed the compound wall, so to prevent illegal encroachment of public roads and temple lands the municipal authorities demolished the compound wall, then the plaintiff approached the Hon’ble

High Court by way of WP No. 9579 of 2005 and it was dismissed on 28-04- 2005. Later under the grudge, the plaintiff again filed the criminal case vide

SC No.115/2008 under SC & ST (Prevention of Atrocities) Act and the said

case was ended in acquittal on 07-02-2011 and after acquittal of the said

Criminal Case, the wife of plaintiff filed suit vide OS No.82 of 2005 against the defendant which was dismissed on 05-09-2011 on contest and after dismissal of the suit, the defendant waited till completion of appeal period, obtained permission for construction, then again while constructing the structure the plaintiff preferred appeal in AS No. 302 of 2012 in OS 82 of 2005 in which he filed the delay petition to condone the delay of 186 days and also filed IA 3057/2012 seeking temporary injunction but the same was dismissed on 30- 11-2012, subsequently the main Appeal AS No.302/2012 was also dismissed on 10-03-2014, therefore after dismissal of all the suits and appeals and also

Writ Petition, this defendant approached the municipal authorities and got approved proposed building plan, then constructed the house, but again the plaintiff filed the suit by suppressing the said facts without having any right or title over the property of this defendant, therefore this defendant submitting that the matter has been already decided by the Appeal courts, therefore the suit is not maintainable against the defendant.

(e) To prove the same, the defendant filed the documents of the above said Writ Petition, appeal suit and also interim application, those are admitted by the PW1 and marked as Ex.B1 to Ex.B3. As per Ex.B1 it is filed by the wife of plaintiff by name Smt. Chintala Lakshmi Devi and also plaintiff by name

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Dr.C.Yadagiri against the municipality and defendant for the same survey number. The said Writ Petition vide WP No. 9579 of 2005 was dismissed and given a finding that ‘when the suit in OS 82 of 2005 is pending, therefore while pendency of the suit, the petitioner therein cannot question with regard to the interference of the respondents in writ petition under Article 226 of the

Constitution of India’, the certified copy of appeal suit AS 302/2012 which is filed by the wife of plaintiff against the defendant herein was filed and it is confronted through the PW1 and as per the order of the Hon’ble Fast Track

Court, V Addl. District Judge, RR District, the matter has been decided by way of Appeal and Ex.B3 is the Interlocutory Application vide IA No. 3057 of 2012 in AS No.302 of 2012 which is also dismissed. As per the order passed by the

Hon’ble Principal District Judge, LB Nagar in IA 3047 of 2012 in AS 302 of

2012 it is clear that the petitioner therein failed to establish her case but in this case the plaintiff is submitting that the property in that case belongs to his wife and the property in the suit in hand belongs to the plaintiff, therefore contending that two properties are different, but to prove the same there is no pleadings in plaint or chief of PW1 and the plaintiff also nowhere mentioned that there are two properties purchased by him in the same survey number, one is on the name of his wife which is claimed in OS 82 of 2005 and another property is claiming by him in this suit, why because if there are two different properties purchased by the wife of plaintiff and plaintiff in same survey numbers, different extents, then why the plaintiff has kept silent and why he failed to mentioned the same. Ex.B4 is confronted through PW2. It is certified copy of letter addressed by the Deputy Collector & Tahsildar to the Station House Officer, Jeedimetla PS dated 15-07-2013, as per the contents of this letter, the property claiming by the defendant in plot

No. 1 A admeasuring 143.24 Sq.yards situated at Chintal, Mahendra nagar colony was already surveyed and confirmed as part of Sy.No.44/AA of

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Quthbullapur Village, but the plaintiff is claiming the property in Sy.No. 40 to an extent of 98 Sq.yards, therefore the plaintiff has to establish with regard to the existence of the property in sy.No.40 to an extent of 98 Sq.yards and also he has to establish that he is in possession over the property since from the date of purchase till the date of filing of the suit but he has not proved the same, but whereas this defendant claiming the property in Sy.No.44/AA has proved by way of Ex.B4 and the plaintiff counsel simply submitted that the Ex.B4 is issued without knowledge of the plaintiff and without issuance of notice to him. If the revenue authorities issued this letter without knowledge of the plaintiff and if the land was measured and demarcated, how the plaintiff has kept silent without taking steps against said authorities, but either he can prefer appeal before the concerned authorities but he did not do so and kept silent.

(f) The only contention of the plaintiff is that the defendant has not filed any document and also not examined, she has not come into the witness box to depose her version and to support her pleadings, therefore the plaintiff counsel submitting that the defendant has failed to establish her case, but in this case the plaintiff himself failed to establish his title and possession over the suit schedule property. When the plaintiff himself approached this court to seek the relief of mandatory injunction and also perpetual injunction, then the plaintiff has to establish his case but he cannot say that the defendant did not examine anyone and has not come into the witness box to depose evidence, therefore the suit of the plaintiff is to be decreed, but it is not the case of the defendant, it is the case of the plaintiff, so that the entire burden lies on the plaintiff to establish his case, moreover the reliefs sought by the plaintiff is perpetual injunction and mandatory injunction, at the initial stage the plaintiff sought relief of perpetual injunction

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and after amendment, he sought for mandatory injunction but without seeking recovery of possession then how the plaintiff is entitled for mandatory injunction and perpetual injunction. The relief sought by the plaintiff is also not clear, the entire evidence of the PW1 is not at all useful to the plaintiff but he clearly admitted the version of the defendant with regard to the dismissal of the suits for the same property those are marked and confronted through the PW1 as Ex.B1 to Ex.B3. Therefore the entire evidence of the PW1 is not supporting their version and it is supporting the version of the defendant, the PW2 who is third person was examined but nothing was elicited and he is neither the attested witness nor the party to the Ex.A3 unregistered sale deed. Ex.B4 document is confronted through the PW2. So, the property claiming by the defendant is in existence in Sy.no.44/AA but not in Sy.No.40 but whereas the plaintiff claiming the property in Sy.no.40, so that he has to establish that the suit schedule property is in sy.no.40 but he failed to establish the same. Therefore, as per the discussion at Issue No.1 and 2 the plaintiff failed to prove his title as he failed to file any link documents to show that his vendor had the better title to sell the property to the plaintiff and the plaintiff filed the Ex.A3 sale deed which is unregistered one. As per the Registration and Stamp Act and also Transfer of Property Act, the immovable property worth more than Rs.100/- has to be registered and stamped properly, only if such property is transferred to the vendee, then the sale should be complete, but in this case the property claiming under unregistered sale deed, it cannot create any right to the plaintiff and except

Ex.A3 sale deed executed in the year of 1989, there are no subsequent documents to show the continuous possession of the plaintiff over the suit schedule property, hence these issues are answered accordingly against the plaintiff as the plaintiff has failed to establish his possession as on date of filing of the suit and also failed to prove title to seek the mandatory

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injunction, hence the plaintiff is not entitled to seek the relief of perpetual injunction and mandatory injunction.

8. ISSUE No.3:

As per the discussion at Issue No.1 and 2, the plaintiff failed to establish his case, hence he is not entitled for the relief sought for.

In the result: the suit is dismissed. No costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on this the 27 th day of August, 2019.

Prl. Junior Civil Judge, Medchal, RR District

APPENDIX OF EVIDENCE

Witnesses examined on behalf of

Plaintiff PW-1: Chintala Yadagiri/Plaintiff PW-2: G.Sudhakar Reddy/Witness

Defendant -None-

Exhibits marked on behalf of

For Plaintiff Ex.A1 CC of pahani patrika for the year 1980-81 Ex.A2 CC of pahani patrika for the year 1988-89 Ex.A3 Unregistered sale deed dt. 21-09-1989 which was regularized Ex.A4 Copy of letter dt. 01-07-2003 from Dy.Collector to SHO, Jeedimetla Ex.A5 Photographs with CD

For Defendant Ex.B1 Certified copy of writ petition No. 9579 of 2005 Ex.B2 Certified copy of Judgement and decree in AS 302/2012 Ex.B3 Certified copy of IA 3057/2012 in AS 302/2012 Ex.B4 letter No.C/562/2013 dt. 15-07-2013

Prl. Junior Civil Judge, Medchal, RR District

Date: 27-08-2019 Prl.JCJ, Medchal