Smt. P.Pradeepa

1CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP

IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE -CUM-

XIII ADDL. METROPOLITAN MAGISTRATE ::

ANAKAPALLE

PRESENT: Smt P.Pradeepa

XIII ADDITIONAL METROPOLITAN MAGISTRATE,

ANAKAPALLE

Monday, this 2nd day of May, 2023.

C.C. No. 2279/2022

Between:

The State: Rep. by the Sub-Inspector of Police, Anakapalle Rural Police Station, Visakhapatnam City.

... Complainant.

And:

Odisetty Nooka Raju @ Raju, S/o. Satynarayana, aged 33 years, Gavara, r/o. Near Milk Centre, Kasimkota, N/o. Lakshmidevipeta, Anakapalle (V).

... Accused.

This case is coming on 24.4.2023 for final hearing before me in the presence of Senior Asst. Public Prosecutor, for Complainant – State and of legal aid counsel for the accused Sri. A.S.V.V.S. Swamy, Advocate for

Accused and the matter having stood over for consideration till this day and upon hearing the arguments on both sides, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Anakapalle Rural Police Station filed charge sheet against the accused for the offence punishable U/secs.382 of

Indian Penal Code in Cr.No. 186/2022 of Anakapalle Rural Police Station.

2. The brief facts of the allegations against the accused as per prosecution are as follows:

(a)On 05.09.2022 at 10.30 hours LW1/Velugula Maha Lakshmi and her daughter LW2/Sunkara Lavanya present in their house, the accused went to her house and asked LW1/Velugula Maha Lakshmi for drinking water. On that LW1/Velugula Maha Lakshmi gave drinking water to him. After having drinking water the accused enquired LW1/Velugula Maha Lakshmi about the location of one Syamala Rao house. On that LW1/Velugula Maha Lakshmi 2CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP replied that she does not know his house, later the accused went into the village, again at about 12.00 hours the accused went to the house of

LW1/Velugula Maha Lakshmi and said with LW1/Velugula Maha Lakshmi that he is suffering from head ache and asked some butter milk. On that

LW1/Velugula Maha Lakshmi gave some butter milk to him, after having butter milk, the accused went into the premises of LW1/Velugula Maha

Lakshmi’s house on the plea of cleaning glass with water. After cleaning the glass with water, he caught her tuft and neck pulled her gold tadu weight about 2 tulas containing two gold sethamanams weight 1 tula, total 3 tulas of gold ornaments from her neck and while he was escaping, LW1/Velugula

Maha Lakshmi shouted loudly. At that time her daughter (LW2/Sunkara

Lavanya) saw and tried to rescue LW1/Velugula Maha Lakshmi but the accused pushed LW1/Velugula Maha Lakshmi and LW2/Sunkara Lavanya down and escaped on motor cycle which was he already got ready by starting the engine to escape immediately after committing the offence.

LW1/Velugula Maha Lakshmi observed the motor cycle bearing registration

No. “ 1661” of the accused. At that time LW3/Chandavada Mahalakshmi, witnessed the offence. LW4/Barnikana Lova Raju, saw the accused prior to the offence while moving in the village. On 05.09.2022 at 14.00 hours,

LW1/Velugula Maha Lakshmi gave a report LW11/Ch Narsinga Rao, for taking necessary action.

b)Basing on the report of LW1/Velugula Maha Lakshmi, LW11/Ch

Narasinga Rao, has registered a case in Cr. No. 186/2022 for the offence

U/sec. 386 of IPC of Anakapalle Rural PS.., on 05.09.2022 at 14.00 hours, and took up further investigation.

c)During the course of investigation LW11/Ch Narsinga Rao, visited the scene of offence, examined it, prepared a rough sketch of the scene of offence, drafted an observation report of the scene of offence in the 3CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP presence of LW5/Nambari Srinu and LW6/Pamu Nooka Raju, examined

LW1/Velugula Maha Lakshmi to LW4/B. Lova Raju, and recorded their statements under Sec. 161 Code of Criminal Procedure, and made efforts to trace out the unknown culprit.

d)On 09.09.2022 the accused LW10/SK Gafoor, was arrested the accused in Cr. No. 116/2022 for the offence U/sec. 354-A, 392, 547,380 of IPC of Mungapaka PS and recorded his confession. In his confession the accused confessed his involvement in Cr. No. 186/2022 for the offence punishable

U/sec. 382 of IPC of Anakpalle PS. Basing on his confession LW10/Sk Gafoor, arrested him, recovered stolen property gold tadu weight 2 tulas containing two gold sethamanams weight 1 tula, total 3 tulas gold ornaments in the presence of mediators (LW7/Pilla Suresh and LW8/ Botla Tharun) and sent him for judicial custody. On 30.09.2022 LW11/Ch Narsinga Rao, produced the accused on PT Warrant and produced him in this case.

e)On 05.11.2022 the Addl. Judicial First Class Magistrate,

Yellamanchili (LW9/TV Raghavendra Rao) has conducted test identification parade against the remand prisoner at Sub-Jail, Anakapalle and LW1/Velugula

Maha Lakshmi identified the accused.

f)After completion of investigation LW11/ Ch. Narasinga Rao, filed charge sheet against the accused. Hence the charge.

3. The cognizance was taken for the offence punishable U/secs.382 of Indian Penal Code against accused . On appearance of the accused, copies of documents were furnished to the accused as contemplated U/s.207 of

Criminal Procedure Code.

4.The accused was examined U/s.239 of Criminal Procedure Code.

The accused denied the contents of charge sheet and documents charges for offences punishable under sections 382 Indian Penal Code was framed 4CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP against the accused , read over and explained to them in Telugu, for which, they denied the charge, pleaded not guilty and claimed to be tried.

5. In order to prove the charge against the accused, the prosecution examined PWs.1 to 7 and got marked Exs.P.1 to P.7. On behalf of the defence, none were examined and no documents were exhibited.

6.After closure of Prosecution evidence, accused was examined

U/s. 313 Criminal Procedure Code. He denied the incriminating evidence appeared against them on record and reported no defence evidence and no document has been marked.

7. Heard on both sides

8.The learned APP submitted her arguments that to prove the guilt of the accused the prosecution had examined P.W.1 to 7 as prosecution witnesses. All the witnesses supported the version of prosecution beyond all reasonable doubt, she further submitted that P.W.1 is victim, P.W.2 evidence is supported the version of P.W.1 with regard to the presence of Accused around that area, P.W.3 is stood as mediator at the time of observation of scene of offence by the police, P.W.4 is stood as mediator at the time of recording of confession, P.W.5 who is Judicial officer, conducted Test

Identification Parade and P.W.6 and 7 are Investigation Officers, the entire evidence of P.W.1 speaks the volume of the real fact i.e., the accused prepared to cause hurt at the time of commission of theft as well as to escape from there. She further submitted that the offence under Section 382 is nothing but aggravated form of theft, in this case P.W 2 witnessed the presence of the accused in the same area on that his evidence is nothing but circumstantial evidence in this case. P.W.3 and 4 are the witnesses who stood as mediators at the time observation of scene of offence and at the time of recording of confession statement in the presence of mediators. P.W.5 evidence is very crucial in this case, because P.W.5 conducted Test 5CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP

Identification Parade at that time P.W.1 identified the accused as well as at the time of trial also she identified the accused in the open court, hence the identification of accused places a vital role in this matter. Further the learned Assistant Public Prosecutor argued that P.W.3 and 4 also supported the prosecution case by admitting that they acted as mediators at the time when the police observed the scene of offence as well as when the police recorded the confession statement, the Investigation Officer also without any deviation put forth the manner how the investigation done by them, basing on the positive evidence put forth before the court by her sought the relief

before the court to convict the accused.

9.On the other hand, the counsel for the Accused submitted that in case the version of P.W.1 is correct, the villagers has to observe the Accused while entering into the house of P.W.1 but no such type of thing is there, secondly the version of P.W.2 is not believable in nature with regard his duties, even though he witnessed the accused but he is not the direct witness to the incident, P.W.2 identified the accused, said the bike number but he did not describe the nature of bike used by the accused on that day.

The counsel for accused further submitted that the VRO does not belongs to

Anakapalle. With regard to Test Identification Parade, the investigation officer did not produce the visitor’s book before the court to show that on the alleged date of Test Identification Parade, P.W.5 visited to Sub-Jail Anakapalle.

As per Section 56 of Indian Evidence Act P.W.5 has to show the circumstantial evidence to show that he visited to Sub-Jail Anakapalle by showing the signatures of jail authorities, no mention about description of room where the accused was identified. No direct witness is there, no neighbour who has shown in the rough sketch was examined by the police during the time of investigation. The section of law under which the accused was charged is not applicable to the ingredients and facts of this present case, moreover 6CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP when there are two possible views on the evidence presented in the case, that the accused is guilty and that the accused is innocent the view which is favourable to the accused should be adopted, by adopting the benefit of doubt the accused may be acquitted.

10.Now, the point for consideration is:

“Whether the Prosecution is able to bring home the guilt of

the accused, beyond all reasonable doubt or not for the

offence punishable U/sec.382 of Indian Penal Code or not”?

POINT :

11.To prove the charge levelled against the accused for the offence punishable under Section 382 of Indian Penal code, the prosecution has to prove the ingredients of Section 382 of Indian Penal Code. After gone through with Section 382 of Indian Penal Code, it runs as follows:

12.“Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

13.Basing on the ingredients of Section 382 of Indian Penal Code, the learned APP has to prove that the accused committed theft by made preparation for causing hurt or death or restraint or fear of death or of rut to any person in-order to commit such theft or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft.

14.To prove the guilt of the accused the prosecution submitted that P.W.1 is direct witness cum victim and P.W.2 evidence is remained as circumstantial evidence. As can be seen from the entire chief examination of P.W.1, she deposed that she is resident of T.Venkupalem village, on 5.9.2022 around 10.30 AM while she herself and her daughter who was 7th month pregnant at 7CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP that time were present at their house, one person came to her house and asked one glass of water, she served one glass of water to him, after having that he enquired about the house of one Syamalarao, when she replied that she does not know and advised to him to got to village and enquire at village, on that he left his house and went to village, again at 12.00P.M. he came back again asked about Syamalarao later he asked a glass of buttermilk, then P.W.1 gave butter milk and gave it to the accused. After had the same he entered into the house by saying that he wants to clean the glass himself, after cleaning the same when he tried to return the glass and

P.W.1 tried to pick the same all of sudden he thrown away the glass all of sudden he thrown away the glass which was in his hand and snatched away the gold chain (Pasuputhadu), when P.W.1 raised hues and cries,

L.W.2/Lavanya came there, due to she was pregnant of 7th month on that

P.W.1 advised L.W.2/Lavanya to ran away from there, but wheen she tried to rescue P.W.1, accused pushed L.W.2 on which L.W.2 moved to some extent from there. Meanwhile one Chandna Mahalakshmi came there by shouting that “who is that”, after hearing her voice he pushed P.W.1 and ran away from there on his two wheeler bearing No.1661, during that time he kept his bike in self mode, on the same day she went to police station and gave report around 2.00P.M. During the time of her cross examination she stated that she doesn’t know the contents of Ex.P.1 report, but it was prepared on her narration only, at the time of incident herself and L.W.2 were present, but due to pregnancy she was sleeping at that time, with regard to the bike she stated that since she observed the bike for two times on that she identified the bike and number . In her evidence she revealed the bike number as 1661.

15.As can be seen from the evidence of P.W.2 whose evidence is alleged to be circumstantial evidence, in his chief examination he stated that on 5- 8CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP 09-2022 around 8 A.M. while he was present at Peramatammatalli Center to return his village, one person came to there and enquired about a person by name Syamalarao, immediately P.W.2 said he does not know who he is, again he said he is doing tiles business to do work at his home he requires address of Syamalarao. Later P.W.2 observed that that person sat on a bike lit tobacco (chutta) for which P.W.2 surprised because being a young person having chutta made him very surprise, on that P.W.2 got susrprised because as a younger person why he is having chutta and at that time he observed his bike number, after that he went to his village. He further deposed that around 2-00 P.M. while he was passing through that center P.W.2 observed some hues and cries at the house of P.W.1, immediately he asked about the reason, there one person gave reply that one person snatched away the gold pustulatadu of P.W.1, on that P.W.1 went to police station and gave report. He further submitted that since he observed said person very closely on that he stated before the police that he can identify the accused person. In his cross examination he stated that he got down from his duty at around 7.30A.M. on 5-9-2022 and he stated that he can produce the attendance certificate to show that he was attended to his duties on 4-9-2022 and got down from duties on 5-9-2022. To the question posed by the counsel for defence, P.W.2 replied that generally he can identify the person if he meets anyone on the road on later point also and he did not see the accused prior to the date of said incident, further on that day the accused wore biscuit color shirt. P.W.2 admitted in his cross examination that he was not the direct witness to the incident. He further deposed that generally they cannot identify each and every person who roams on the road, P.W.2 added that if a person connects and talks closely with them then they can identify them on later point also.

The remaining suggestions made by the counsel for the accused were denied by P.W.2.

9CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP

16.On over all scrutiny of evidence of P.W1 and 2, it is very clear before the court that as rightly alleged by the learned Assistant Public Prosecutor,

P.W.1 is the victim and the evidence of P.W.2 is useful in this case to consider it as circumstantial evidence to prove that on that day the accused was present in that area. Eventhough the counsel for the accused posed so many questions to P.W.1 and 2 but the record shows that they did not shake their evidence even at the time of cross examination. They both categorically stated about the presence of the accused, as per the evidence of P.W.2 accused presence was there at Peramatammatalli Center around 8.00A.M at 5-9-2022, as per the evidence of P.W.1 the accused came to her house at 10.30 A.M. on the same day, as well as the incident had taken place at 12.00P.M. at the house of P.W.1 and P.W.2 came to know about the incident at 2-00P.M. the timing of the presence of the accused in that area came out from the mouth of P.W.1 and 2 are nearer to each other to take the evidence in chain of circumstances. The further version of the counsel for the accused is that eventhough P.W.1 and 2 revealed the number of the bike of accused which is alleged to be used by accused on that day but they could not describe the nature of bike, but as can be seen from the evidence of P.W.1 she revealed that the bike is in black color, the number plate is old one, she observed the bike for two times on that she observed the bike number. With this regard this court is of opinion that generally when one person observes a person who comes on bike and spends some time in his or her presence there is every possibility to observe the bike and its number, but there is no chance to a lady who lives in village atmosphere to know the nature (company) of the bike or any vehicle. Further as can be seen from the evidence of P.W.2 it is very clear that he observed that person very closely when the accused enquired about the address of Syamalarao and discussed about the purpose why he needs his address and also P.W.2 observed the 10CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP accused when he was having tobacco by sitting on his bike, it mean it is very clear that P.W.2 also observed the accused for some time. On that there is no scope before this court to suspect the version of P.W.1 and 2 with regard to observing the accused and identifying him and his bike number. Hence this court considered the version of P.W.1 and 2 as genuine.

17.Generally, the circumstantial evidence is indirect evidence but it gives logical inference that the fact is existed, it requires drawing additional reasonable inferences in order to support the claim and it consists of a chain of circumstances pointing to the existence of certain facts. It is well settled law that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.

Further the presence, behavior of a person around the time of the alleged offene might be regarded circumstantial evidence of the individuals guilt.

18.In this present case on hand as already discussed previously the evidence of P.W.1 and 2 is clearly showing the presence of the accused, the person about whom he enquired, the time when P.W.2 observed the accused at center, the time when the incident had taken place at the house of P.W.1, the things which observed by P.W.2 at the house of P.W.1 after commission offence are all creates chain link of circumstances showing the existence of presence of accused and involvement of the accused in this crime. Moreover the entire scenario of the facts shows that the episode was started at the center when the Accused enquired about Syamalarao at P.W.2, continued at the house of P.W.1 with the enquiry about the same person Sayamalarao, and as per the evidence of P.W.2 the episode was ended at 2.00 P.M. when

P.W.2 came to know about commission of theft at the house of P.W.1. Here the prosecution projected all the circumstances from which the conclusion of guilt drawn is fully proved and the circumstances projected before the court are in the nature to come to a conclusion that the accused was present in 11CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP that village on that day . The evidence of P.W.1 and 2 is very clearly showing that no gap left in the chain of evidence, hence this court believed the version of P.W.1 and 2 with regard to the presence of the accused.

19.With regard to the act done by the accused , as already discussed the contents of chief examination and cross examination of P.W.1 on that fateful day the accused alleged to be visited to the house of P.W.1 for two times, on second time when he asked for buttermilk and when she gave buttermilk, after having the same he went to inside of the house and committed the offence. As per the version of P.W.1 when the tried to commit the offence when she resisted the accused he pushed L.W.2 on which L.W.2 moved to some extent from there. In this matter the direct witness who is none other than the daughter of P.W.1 was not examined as witness. As per the evidence of P.W.1 as on the date of commission of offence the L.W.2 Lavanya was carrying 7th month pregnancy and as on the date of adducing evidence

P.W.1 deposed that 20days prior to the date of adducing evidence she gave birth to male child and she is unable to come to anywhere. Even though the defence counsel submitted his arguments as if the version of P.W.1 is believable in nature, no villager has observed when the accused entered into the house of P.W.1, as a answer with that regard, this court is of opinion that the version of counsel for accused is mere assumption because in view of this court there is no time to observe the thing happening in the neighbors house is not possible for all the time, such type of things happen only on some occasions only, mere assumptions or presumptions cannot be taken into consideration by the court while deciding the issue in criminal cases.

Moreover in this matter the evidence of P.W.2 is clearly showing that he witnessed directly about the presence of the accused in the village at center. However when the direct witness totally put forth the facts in correct lines before the court there is no need to adduce the evidence of more 12CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP witnesses, because the evidence can be weighed but not be counted. Here in the opinion of this court the evidence of P.W.1 is sufficient to come to a conclusion that whether the incident had taken place or not.

20. Moreover P.W.1 and 2 are identified the accused in the open court as well as at the time of Test Identification Parade conducted by P.W.5.

Eventhough the counsel for accused submitted that the Test Identification parade was not conducted in proper lines, but this court of opinion that P.W.5 while conducting Test Identification Parade has to follow the procedure laid down in Rule 34 of Criminal Rules of Practice. Here in this matter by following the rule 34 of Criminal Rules of Practice, P.W.5 by following the requisition Hon’ble Chief Judicial Magistrate cum Principal Senior Civil Judge conducted Test Identification parade by following Rule 34 Iii) (a), (b), (iii) (a) to (c) and (iv). Eventhough the counsel for accused argued that P.W.5 did not follow the procedure, but as can be seen from Ex.P.5 this court feels that his argument was remained as worthless. Hence this court inclined to rely on the Test Identification Parade conducted by P.W.5 by considering that Test

Identification Parade is worthful in this matter to decide the charge against the accused, because eventhough the Test Identification Parade is not a substantive piece of evidence, the same can be used to corroborate the identification of accused by the witness in the court, it requires the identification of accused in the open court. As already discussed above the prosecution proved the presence of accused at the scence of offence, to strengthen the trust worthiness of evidence of P.W.1 and 2, to corroborate their evidence, to recognize the suspect who was not known by P.W.1 the prosecution tried to prove the identification of accused by way of TIP. It is well settled law that conviction cannot be based on sole reason of Test

Identification Parade, but here in this case the evidence of entire evidence of

Prosecution corroborated with the identification of accused in the open court 13CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP as well as as per Ex.P.5 document also, hence this court feels that the evidence of P.W.5 and Ex.P.5 are trust worthy and worthful to conclude the finding in this matter.

21. Moreover in this matter this court further relied on the confession made by the accused before P.W.6 who is Inspector of Police of Yelamanchili, on 09-09-2022, in the presence of P.W.4. As per the version of the prosecution immediately after the accused was detected by the Yelamanchili

Police on 09-09-2022 inn Crime N0.116/2022 of Munagapaka P.S. on questioning the accused was confessed besides he committed the offence covered under Crime No.116/2022, he confessed his guilt that he committed theft at the house of P.W.1 also on that the confession statement i.e., ExP5

(a) was recorded in the presence of P.W.4. As can be seen from ExP5 (a) it is clearly showing that the accused has committed theft at the house of P.W.1.

on that the confession statement Ex.P.5(a) was recored in the presence of

P.W.4/VRO. With regard to VRO i.e., P.W.4 who stood as mediator at the time of recording of confession statement , the defence counsel argued that the

VRO does not belongs to Anakapalle, but as can be seen from the evidence of P.W.4 and P.W.6 who is Inspector of Police of Yelamanchili, it is observed by this court that P.W.4 on 09-09-2022 at request of Yelamanchili P.S. when he was working as VRO of Munagapaka he stood as mediator at the time of recording of confession in crime No.116/20222, basing on the said confession

P.W.6 seized the stolen property from the possession of accused which are subject matter of Cr.No. 116/2022 and Cr.No.186/2022 and the property which were marked as M.O.1 and 2 in this matter belongs to Cr.No.186/2022.

When the Investigation officer of Yellamanchili detected the offender in

Cr.No. 116/2022 of Munagapaka Police Station, generally he secures the presence of mediator from the surrounding area. Here in this matter also

P.W.6 did the same. Hence the version of the counsel for accused is not 14CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP tenable in this aspect. As can be seen from the evidence of P.W.4,6 and

Ex.P.5 (a) it is clearly showing that the accused has committed theft at the house of P.W.1 as well as at the time of recording of statement, he admitted that the stolen property was is in his possession, he had taken away them to the beeruva, opened the secret locker and shown some ornaments wrapped in a cloth. After opening the same P.W.4 and others observed so many gold ornaments were placed in the said cloth. At that time they observed the gold ornaments which are subject matter of the Cr.No.186/2022 of Anakapalle P.S.

on that after recovery the same the property was handed over to Anakapalli police by P.W.6. when basing on the confession statement of accused the

Investigation Officer seized the property i.e., M.O. and 2 from the possession of the accused immediately after detection of the accused, as per Illustration

(a) of Section 114 of Indian Evidence Act if a person who is in possession of the stolen property immediately after commission of theft, in such a case he has to account for the same otherwise the court may presume that said person is thief or receiver of stolen property. In this matter the offence alleged to be has been committed on 5-9-2022 and the accused was caught hold by P.W.6 on 09-09-2022 it means he was caught hold within the gap of 4 days from the date of alleged commission of offene, hence the recovery of property has to consider as soon before the commission of theft, moreover after the accused caught hold by the police, he did not account for the stolen property which was received from his possession. Hence this court has drawn a presumption in the lines by considering the other facts which are corroborated with the version of prosecution and come to a conclusion that the accused committed theft of MO.1 and 2.

22.With regard to confession made by the accused, eventhough as per

Section 25 of Indian Evidence Act the confession made before the Police

Officer is not relevant but as per Section 27 of Indian Evidence Act, the if any 15CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP fact was discovered basing on the information given by the accused during the time of confession before police, to the extent of such recovery of material object is relevant. In this matter basing on the confession the police seized M.O.1 and 2 from the possession of Accused only basing on the confession made by the accused, hence recovery of MO1 and 2 considered as relevant in this case.

23. On over all scrutiny of the entire evidence, as already discussed as above in all aspects i.e., the evidence given by the direct witness and evidence of P.W.2, which is corroborated with the evidence of P.W.1, the identification of accused during time of Test Identification Parade as well as in the open court, the contents of confession statement of accused, recovery of material object from the possession of the accused basing on the confession are all proving that the accused had committed the theft of M.O.1 and 2 and the prosecution successfully proved the guilt of the accused beyond all reasonable doubt. Hence this court is of opinion that the accused is found guilty for the offence punishable under Section 382 of

Indian Penal Code, hence is entitled for conviction.

24.In the result Accused is found guilty for the offences punishable under Sections 382 of Indian Penal Code and as such they are convicted

U/sec. 248 (2) of Cr.P.C. Accordingly Accused is sentenced to suffer R.I. for a period of Three Year and also liable to pay Rs.5000/- (Rupees Five Thousand

Only) in case of default he have to under go S.I. for a period of six months for the offence punishable under Section 382 of I.P.C. MO1 and MO2 which was given to the custody of petitioner/Velugula Mahala Lakshmi (PW1) vide

CrlMP NO 2756/2022 dt.28.12.2022 shall holds good after laps of the appeal

time.

Accused shall have the benefit of set off of remand period U/sec.

428 of IPC if any. As seen from the record the accused is in judicial custody 16CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP from 21.09.2022 i.e., 224 days. Accused was also informed in writing that they have a right of appeal against this judgment before Honourable District

Court, Visakhapatnam within 30 days. Enquired about the means to prefer an appeal.

Dictated to Stenographer Grade -III directly on computer, corrected and

pronounced by me in the open court, this the 02nd day of May, 2023.

XIII Addl. Metropolitan Magistrate Anakapalle.

On questioning the quantum of sentence, the accused are stated as

follows:

The accused submitted that he has wife and children and he did not even look at his newly born child yet. He further submitted that he has to look after her wife, children and her step mother so also his brother was recently died on that he has to look after welfare of his sister-in-law so also children of his brother.

By Considering the nature of the offence committed by the accused, and the manner in which it is perpetrated, since the act done by the accused is theft, hence this Court is not inclined to invoke the beneficial provisions of

Probation of Offenders Act.

Upon perusal of the submissions made by the accused as above, this court is inclined to take some lenient view in imposing sentence Accused for the offences punishable under Sections 382 of Indian Penal Code.

In the result Accused sentenced to under go Rigorous Imprisonment for a period of three year and pay a fine of Rs.5000/- (Rupees Five Thousand

Only) in default of payment of fine, he shall under go simple imprisonment for six months for the offence punishable under section 382 of Indian Penal

Code.

17CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP

The remand period from 21.09.2022 to 02.05.2023 i.e., 224 days shall be set off under section 428 of Code of Criminal Procedure. The accused is appraised of right to prefer an appeal against the conviction and sentence.

On enquiry, Accused stated that they intend to prefer an appeal against the conviction and sentence through the legal aid counsel who is appearing on their behalf in this case.

XIII Addl. Metropolitan Magistrate Anakapalle.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- For accused:-

PW-1 :V. Mahalakshmi PW.2 : B. Lovaraju P.W.3 : P. Nookaraju P.W.4 : Pilla Suresh P.W.5 : TV Raghavendra Rao P.W.6 : SK Gafoor P.W.7 :Ch Narsinga Rao

DOCUMENTS MARKED:

For Prosecution:-For accused:-

Ex.P-1 : report of PW1 -NIL- Ex.P-2 : scene observation report of PW3 Ex.P-3 : confession statement of accused dated 9-9-2022 by PW4 Ex.P-4 : seizure report cum mediator report dated 9-9-2022 by PW4 Ex.P-5 : test identification parade proceedings by PW5 Ex.P-6 : FIR by PW7 Ex.P-7: rough sketch by PW7

MATERIAL OBJECTS MARKED:

1.MO1 is gold chain is approximately weight of 2 tulas

2.MO2 is two gold satamanalu is approximately weighting of one tula

XIII Addl. Metropolitan Magistrate Anakapalle.

18CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP

CALENDAR AND JUDGMENT

CALENDAR OF CASE TRIED BY THE XIII Addl. METROPOLITAN

MAGISTRATE, ANAKAPALLE

DISTRICT OF: VISAKHAPATNAM

C.C. No. 2279/2022

Date of Report or ApprehensiReleased CommencClose of Sentence OffenceComplain-on of on bailement of trialor Order antaccusedtrial 05.09.202205.09.202220.09.UTP30.12.202218.04.202302.05.2023 2022 Explanation for Delay:Police failed to produce witnesses on time.

Name of the Court :XIII Addl. Metropolitan Magistrate, Anakapalle. Calendar Case No. :C.C. No. 2279/2022 Complainant:The State: Rep. by the Sub-Inspector of Police, Anakapalle Rural Police Station, Visakhapatnam City. (Cr.No. 186/2022 of Anakapalle Rural P.S) Particulars of ::Odisetty Nooka Raju @ Raju, accusedS/o. Satynarayana, aged 33 years, Gavara, r/o. Near Milk Centre, Kasimkota, N/o. Lakshmidevipeta, Anakapalle (V). OffenceU/secs. 382 of IPC Finding:FOUND GUILTY Result:In the result Accused is found guilty for the offences punishable under Sections 382 of Indian Penal Code and as such he is convicted U/sec. 248 (2) of Cr.P.C. Accordingly Accused is sentenced to suffer R.I. for a period of Three Years and also liable to pay Rs.5000/- (Rupees Five Thousand Only) in case of default he has to under go S.I. for a period of six months for the offence punishable under Section 382 of I.P.C. MO1 and MO2 which was given to the custody of petitioner/Velugula Mahala Lakshmi (PW1) vide CrlMP No. 2756/2022 dt.28.12.2022, shall holds good after lapse of the appeal time. Accused shall have the benefit of set off of remand period U/sec. 428 of IPC if any. As seen from the record the accused is in judicial custody from 21.09.2022 to till date i.e., 224 days. Accused was also informed in writing that he has right of appeal against this judgment before Honourable District Court, Visakhapatnam within 30 days. Enquired about the means to prefer an appeal. Accused paid the fine of Rs.5,000/- on 02.05.2023. Free copy of Calender and Judgment is supplied to the accused. Sd:// P. Pradeepa XIII Addl. Metropolitan Magistrate Anakapalle.

19CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP sv 20CC No. 2279/2022, dt 02.05.2023 , XIII AMM/AKP 21CC No. 2279/2022, dt 01.05.2023 , XIII AMM/AKP

Section 27 says that the "fact discovered " should be there in the "information" received from an accused person while in the custody of the police officer. It is this "information" (already given by the accused to the police officer while in custody) which gets confirmed by the subsequent recovery. Recovery was made of items as per section 27 of the Evidence Act,1872 etc. was admissible,

Sentence is suspended till 01.06.2023 on executing a bond for, a sum Rs. 10,000/- each, with two sureties for a like sum each as per order in Crl.M.P. /2023, U/sec. 389 (3) Cr.P.C., dated 02.05.2023 and the accused shall be released forthwith if his presence is not require in any other cases.

FAIR

O.S.NO.03/2017

PJCJ’S Court, Anakapalli Date: 26.04.2024

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR

DIVISION), ANAKAPALLI

PRESENT: Smt P.Pradeepa,

Principal Civil Judge (Junior Division), Anakapalli

Friday, 26 th day of April, 2024

ORIGINAL SUIT NO.03/2017

Between :

Alla Veeragangaraju, S/o.Maheswara Rao, Hindu, aged 38 years, R/of.Door No.5-35/A, Gavarla Anakapalle Village, Munagapaka Mandal, Visakhapatnam District. (Aadhar No.630352523340). … Plaintiff

A n d

1. Boddeda Mahalaxminaidu, S/o.late Sanyasi, Hindu, aged 57 years, Employee in Co-operative Society, R/of.Door No.5-100, Gavarla Anakapalli Village, Munagapaaka Mandal, Visakhapatnam District.

2. Boddeda Nageswara Rao, S/o.late Sanyasi, Hindu, aged 54 years, Cultivation, R/of.Door No.5-100, Gavarla AnakapalleVillage,MunagapaakaMandal, Visakhapatnam District.

3. Boddeda Jagga Apparao, S/o.Sanyasi, Hindu, aged 44 years, Cultivation, R/of.Door No.5-101, Gavarla Anakapalli Village, Munagapaaka Mandal, Visakhapatnam District.

4. Boddeda Srinivasa Rao, S/o.late Sanyasi, Hindu, aged 39 years, Kirana Business, R/of.Door No.5-101, Gavarla Anakapalli Village, Munagapaaka Mandal, Visakhapatnam District.

5. Boddeda Chandra Rao, S/o.late Sanyasi, Hindu, aged 31 years, Cultivation, R/of.Door No.5-101, Gavarla Anakapalli Village, Munagapaaka Mandal, Visakhapatnam District.

… Defendants

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PJCJ’S Court, Anakapalli Date: 26.04.2024

The Suit has come up on 16.04.2024 for final hearing

before me in the presence of Sri M.Jayaram and Sri B.S.V.Rajagopal,

learned Counsel for Plaintiff and of Sri Buddha Thrinadha Rao, learned Counsel for Defendants, upon hearing on Plaintiff, considering the material available on record and having stood over the matter for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by Plaintiff against the Defendants for

Declaration of his title over the Suit ABCD (Red mark) portion property a rightful owner; for recovery of possession of Plaint Schedule ABCD (Red mark) portion by removing plants therein; for Permanent

Injunction restraining the Defendants and their men, agents, servants and representatives from ever interfering with the Plaintiff’s peaceful possession and enjoyment of the Plaint Schedule ABCD (Red mark) portion property, for costs and such other reliefs.

02. The averments of the Plaint in nutshell are that :

The plaintiff submits that originally the plaint schedule property and some other properties are settled in the name of the grand father of the plaintiff namely Alla Veerunaidu, the said Alla

Veerunaidu have two sons namely Alla Maheswara Rao i.e., father of the plaintiff and Alla Venkata Rao, after demise of Alla Verunaidu all his movable and immovable properties are devolved on his two sons

Alla Maheswara Rao and Alla Venkata Rao, accordingly the said Alla

Maheswara Rao and Alla Venkata Rao used to enjoy the plaint schedule property and some other properties for some time, thereafter they have orally partitioned the properties of an Alla

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PJCJ’S Court, Anakapalli Date: 26.04.2024

Veerunaidu accordingly the suit schedule property and other extents fell to the share of father of the plaintiff namely Alla Maheswara Rao.

The plaintiff further submit that, having recognized the right, title and possession over the plaint schedule property and some other properties of father of the plaintiff, the revenue authorities are also got mutated his name in all concerned records and also issued pattadar and title deed books in his favour, accordingly the father of the plaintiff enjoying the schedule property and some other properties with absolute rights, within in knowledge of one and all in the village including to the defendants as the defendants are southern boundary holder of the plaint schedule property.

The Plaintiff further submit that, while the matter stood thus the father of the plaintiff executed a registered settlement deed for the plaint schedule property in favour of plaintiff on

Dt 24-05-2014, vide its Registered Document No.2167/2014 and

delivered vacant possession of the same to the plaintiff, the plaintiff with a view to construct a residential house in the plaint schedule property have applied housing loan to the Andhra Bank,

Desapatrunipalem branch, Visakhapatnam, as per guidelines of bank authorities, the plaintiff approached the revenue authorities and applied for conversion of the schedule property from agricultural use to non agricultural use, accordingly the revenue authorities converted the schedule property from agricultural use to non agricultural use under due process including by visiting the schedule property and issued proceedings by the Revenue Divisional Officer, Anakapalle.

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PJCJ’S Court, Anakapalli Date: 26.04.2024

The plaintiff further submit that as per plan and proceedings issued by the competent authorities, the plaintiff got constructed a pucha house in the Southern part of the schedule property by leaving some extent to his southern side in order to meet his vasthu etc.

The plaintiff further submit that, after completion of construction of the residential building, in the month of July 2015 the plaintiff tried to construct boundary wall around his residential building at that time, the defendants herein got objected the plaintiff to construct the boundary wall on southern side to the schedule property claiming that they are having their property upto the residential building of the Plaintiff le, towards southern side of the schedule property.

The plaintiff further submit that, having no other go, in order to resolve dispute with the defendants as they are neighbors since decades, the plaintiff got applied for survey of his property through Government Surveyor, and accordingly paid Challan and user fee to the Revenue authorities, as per request of the plaintiff, the

Mandal Deputy surveyor served notice to the defendants prior to execution of his survey work with an intimation to them to attend survey work on D1 10-09-2015, and tried to conduct survey over the schedule property, but unfortunately the defendants all of sudden revolted on the Mandal Deputy surveyor and obstructed him to conduct survey work over the schedule property, having no other go the Mandal Deputy surveyor return back from the schedule property and reported the same to his higher officials.

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PJCJ’S Court, Anakapalli Date: 26.04.2024

The plaintiff further submit that, taking advantage of the obstruction of survey work, the defendants forcibly planted some banana trees, and eucalyptus plants in the plaint ABCD(RED MARK) portion and accordingly the defendants forcibly occupied ABCD(RED

MARK) portion of plaint schedule property, the plaintiff also lodged a police report against the defendants about occupation of plaint

ABCD(RED MARK) portion, but police did not take any action stating that survey work is pending.

The plaintiff further submit that, after surveying the schedule property, on Dt.08-07-2016, when the father of the plaintiff is in plaint schedule property, all the defendants suddenly revolted on him with deadly weapons and caused injury to him, immediately the father of the plaintiff lodged a report to the SHO of Munagapaka PS, the same was registered as a case in Cr No 60/2016, U/s 324 R/w 34 of IPC, having came to about the registering the case against the defendants, the defendants also filed a counter case against the plaintiff and his father with false and untenable allegations, which is also registered as an FIR No 59/2016, subsequently both case and counter cases was referred by the police with an endorsement of civil in nature.

The plaintiff further submit that, since then the plaintiff several times approached the revenue authorities and fix his property boundaries, on repeated requests and visits of the plaintiff, the

Tahsildar of Munagapaka PS, and Mandal Deputy surveyor of

Munagapaka Mandal once again decided to conduct survey over the schedule property with the assistance of police, and accordingly on

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PJCJ’S Court, Anakapalli Date: 26.04.2024

Dt.02-07-2016, the Mandal Deputy surveyor got conducted survey work over the schedule property with the assistance of police of

Munagapaka PS, as the defendants obstructing him to do his work, as such in the presence of defendants, plaintiff and police people the

Mandal Deputy surveyor got conducted survey over the plaint schedule property and submitted a detailed report along with sketch.

The plaintiff further submit that, the defendants are no way concern the plaint schedule property as they are having landed property at south boundary to the plaint schedule property with a clear i.e., S.No. 395/9A.

The plaintiff further submit that, the defendants are no way concern the plaint schedule property as they are having landed property at southern boundary to the plaint schedule property with a clear subdivision i.e., the S.No.395/9A. The plaintiff further submits that, as per report submitted by the Mandal Deputy surveyor plaint

ABCD(RED MARK) portion at about Ac 0.01 Cts is fell in

S.No.395/58 which belongs to plaintiff, it is clear that, taking advantage of Innocence of plaintiff and his father the defendants highhandedly occupied the plaint schedule ABCD(RED MARK) partition property belongs to plaintiff and planted banana, and eucalyptus plants therein. Hence this suit for declaration of title of plaint

Schedule ABCD (RED MARK) Portion and recovery of vacant possession from defendants by removing plants therein at the costs of defendants.

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PJCJ’S Court, Anakapalli Date: 26.04.2024

03. Brief averments of the Written Statement are as follows :-

The 4th defendant filed his written statement and the same was adopted by defendants 1 to 3 and 5. The Defendants submits that, their father (Late) Boddeda Sanyasi s/o (late) Jaggaiah during in his life time he is in the possession and enjoyment of the landed property by cultivating the total land in S.No.395/9 of Thotada

Village, Munagapaka Mandal Visakha District and purchased the share from the real owner Kommoju Sambamurthy through a registered document No.2560/1963 dt.17-07-1963 for a valid sale consideration with specific boundaries. Thereafter the revenue authorities incorporated his name in the revenue records and issued pattadar passbook and title deed and also the defendants are paying revenue taxes to the government for the above said survey land and also for their other lands. While things stand thus the plaintiff constructed a slabbed house upto their border in his survey No.395/5b without leaving singly inch of land on the southern side of his property and made construction of first floor slab by projecting slab measuring 2ft.x 20flx 0.5 ft. for that, the defendants lather raised objection to remove the projected slab into his property in S.No.395/9 of northern side.

For the time being they stopped the construction and post phoning the same on one pretext or other. Suddenly the defendants and his father noticed that, the plaintiff and his father started construction of boundary wall by trying to encroach the defendant's land towards northern side., (southern side of the plaintiff). Immediately his father raised dispute before elders to stop the construction of boundary wall upon that, the plaintiff stopped the work for a while and later they

Page 7 of 18

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O.S.NO.03/2017

PJCJ’S Court, Anakapalli Date: 26.04.2024 used to abuse my father black and blue and they got surveyed the land without issuing notices to these defendants and the defendants and they influenced the revenue people and trying to made unlawful demarcation of S.No.395/5b,395/9 and trying to plugging the poles for their illegal activities for that the defendants father suffered severe mental and physical illness. Upon that the defendants made complaint to the Munagapaka police. who in turn registered FIR against the plaintiff only under Section 324 of IPC through a Crime

No.59/2016. The plaintiff also filed a counter blast case against the defendants with a false and untenable allegations which was also registered as a Crime No.60/2016 under Sections 324 r/w 34 of IPC.

The defendants further submits that during the course of these disputes the defendants father became sick and hospitalized and due to tension and mental tortures of the plaintiff and his father, the defendants father died on 22-08-2016 at King George Hospital (KGH) Visakhapatnam. Thereafter, the defendants received court notices and pleadings and documents in the above suit and on perusal the defendant's noticed that, the plaintiff having a site ABCD red marked portion towards southern side of his plaint schedule property and also noticed that irregular mentioning of the extents of the defendants property and those are not binding on the defendants and the plaintiff have not entitled any right or title over the ABCE red marked portion of the land. Infect the defendants are in possession and enjoyment of the ABCD red marked portion by planting banana and eucalyptus trees and enjoying the usufructs of the trees seasonally without any body's interruption or what so ever till this day. The documents were filed were created and concocted and self

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PJCJ’S Court, Anakapalli Date: 26.04.2024 made documents with the help of revenue authorities who are in the glows of the plaintiff and his father and those documents either will not reflect any right over the defendants property or create any tight over the ABCD read marked property of the plaint.

It is further submit that the defendants are having land beyond the ABCE red marked portion towards northern side and the plaintiff encroached and made unlawful construction of first floor slab measuring to an extent of 2 ft x20ft x 0.5ft by projecting the same into the defendants survey no 395/9 property without permission of the defendants and his father and also the plaintiff made construction beyond his plan and approval of panchayat The defendants are reserving their right to take necessary and appropriate steps to demolish the unauthorized and unlawful construction through court of law.

The defendants submit that, the plaintiffs are filed this suit with a false and baseless allegations with a view to harass the defendants and for the reasons best know to them only. The plaintiffs have neither prima-facie case nor balance of convenience in their favour. The plaintiffs suppressed the above said facts and got it filed the present suit and petition with false and untenable allegations against this defendants.

The defendants submit that the boundaries, extents etc., as mentioned in the plaint schedule is incorrect and denied. In addition, there is no cause of action for this suit and the cause of action mentioned in the plaint incorrect. And there are no valid

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PJCJ’S Court, Anakapalli Date: 26.04.2024 reasons to grant declaration of his title over the suit schedule

ABCD(RED MARK) portion property rightful owner and for recovery of vacant possession of plaint schedule ABCD(RED MARK) portion by removing plaint there in and for permanent injections etc., in favour of the plaintiff as prayed for in the suit purpose of this suit. are all false and they are invented for this suit. Therefore, the defendants

Pray that the Honorable Court may be pleased to dismiss the suit with costs in the interest of justice.

4. I S S U E S :-

Basing on the respective pleadings of both parties, the following issues have been settled for trial:-

1)Whether the Plaintiff is entitled to Declaration as prayed for ?

2) Whether the Plaintiff is owner of the Suit Schedule Property ?

3) Whether the Plaintiff is entitled for Permanent Injunction as prayed for ?

4) To what relief ?

5. TRIAL PROCEEDINGS :

During Trial, the Plaintiff himself is examined as PW-1 and got marked Exs.A-1 to A-9. The third party to the Suit was examined as PW-2. On the other hand, the Defendants filed their written statement and failed to adduce their evidence, even after so many

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PJCJ’S Court, Anakapalli Date: 26.04.2024 opportunities given to them, hence Defendant’s side evidence is closed and arguments are treated as nil.

6.Heard on Plaintiff’s side.

7. ARGUMENTS:

The Counsel for Plaintiff submitted that this suit is filed for

Declaration and recovery of possession of ABCD Schedule Property.

Defendants are all belongs to same family and they are Southern side boundary owners of Plaintiff. The survey numbers of Plaintiff’s property and Defendants property are separate.

The plaint schedule property was got by the Plaintiff by way of Ex.A-1-Registered Settlement Deed of the year 2014. The

Plaintiff was converted the agricultural land into non-agricultural and to construct a house vide Ex.A-7-Proceedings of Revenue Divisional

Officer, Anakapalli, he obtained plan. When the Plaintiff started construction, the Defendants who are on Southern side of property obstructed to construct the house. The Plaintiff with the help of surveyor got measured the property and the report was filed before the Court and the same is marked as Ex.A-9. Moreover, Ex.A-2-

Endorsement with regard to Survey No.395 is clearly showing that the Defendants occupied Acre 0.01 cents of land as well as Ex.A-9 also clearly showing the same. Since, the Defendants occupied the property of Plaintiff without any right, on that this suit is filed for

Declaration and Recovery of Possession. Basing on the documents placed and evidence adduced by Plaintiff, the Plaintiff sought the relief of Suit for Declaration and Injunction.

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PJCJ’S Court, Anakapalli Date: 26.04.2024

On the other hand, the Defendants failed to adduce their side evidence, even after so many opportunities given to them, hence Defendant’s side evidence is closed and arguments are treated as nil on Defendant’s side. Since no evidence is adduced in favour of

Defendants, hence the written statement filed by Defendants is taken into consideration.

8. ISSUE Nos.1 & 2:

1) Whether the Plaintiff is entitled to Declaration as prayed for ?

2) Whether the Plaintiff is owner of the Suit Schedule

Property ?

On hearing on Plaintiff’s side, exhibits marked on Plaintiff side i.e., Exs.A-1 to A-9 and on perusal of averments of written statement, this Court observed that the version of the Plaintiff is that the Plaint Schedule Property is originally settled in favour of grand father of Plaintiff by name Alla Veerunaidu, who has two sons by name Alla Maheswara Rao and Alla Venkata Rao (i.e., father of

Plaintiff). After the death of grand father of Plaintiff, the properties of grand father of Plaintiff were devolved on father of Plaintiff and his paternal uncle, they have partitioned the properties orally, accordingly the suit schedule property along with other properties were fell to the share of father of Plaintiff. By recognizing the right, the Revenue Authorities issued pattadar pass book vide Ex.A-6. As can be seen from the Ex.A-6 document i.e., pattadar passbook, the plaint schedule property i.e., an extent of Ac 0.15 cents of land situated in Survey No.395/5 is stands in the name of father of Plaintiff

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PJCJ’S Court, Anakapalli Date: 26.04.2024 and the same was settled in favour of Plaintiff by his father

Maheswara Rao vide Ex.A-1 Registered Settlement Deed. In Ex.A-1

Settlement Deed it is very clearly reflecting that the Eastern and

Southern boundary owners are Boddeda people. As can be seen from

Ex.A-2 Endorsement issued by Tahsildar in favour of Plaintiff, it is clearly reflecting that basing on the application made by the Plaintiff to conduct survey, the survey was conducted, report was given to the

Plaintiff. The Tahsildar, Munagapaka issued an endorsement that on the Southern side of the Plaint schedule property i.e., Survey

No.395/5 (395/5-B) i.e., Boddeda Sanyasi has land in Survey

No.395/9-A and he occupied one cent of land situated in Survey

No.395/5-B. Ex.A-5 showing that the Panchayat Secretary of Thotada

Gram Panchayat issued a plan and approval proceedings in favour of

Plaintiff for the land situated in Survey No.395/5, on 10-10-2014.

Ex.A-7 land conversion proceedings issued in favour of Plaintiff, by

Revenue Divisional officer, Anakapalli Division by according permission to Plaintiff to convert the agricultural land into non- agricultural land for an extent of Acre 0.15 cents of land situated in

Survey No.395 and Ex.A-9 surveyor report is also clearly showing that the Southern boundary owner i.e., Boddeda Sanyasi who is none other than the father of Defendants have occupied an extent of Acre 0.01 cents of land, in the land situated on his Northern side i.e., the land belongs to Plaintiff in Survey No.395/5-B.

8.1On over all scrutiny of all exhibits, it is very clear that the land situated in Survey No.395/5 belongs to father of Plaintiff and the same was settled in favour of Plaintiff and the Plaintiff got panchayat approval for construction of house in the said land, for which, he

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PJCJ’S Court, Anakapalli Date: 26.04.2024 obtained permission to convert the agricultural land into non- agricultural land. Further, the surveyor report also clearly showing that the father of Defendants who is Southern boundary owner encroached Ac 0.01 cents of land from the land of Plaintiff which is situated in Survey No.395/5-B. So also, the sketch issued along with report by Surveyor is also clearly showing that the red marked property i.e., Ac 0.01 cents of land situated on Northern side of the land situated in Survey No.395/9-A (i.e., land situated in Survey

No.395/5-B) was occupied by father of Defendants.

8.2Moreover, the Plaintiff filed this Suit for Declaration and

Recovery of Possession, since the burden is on the Plaintiff to prove his title and possession over plaint schedule property and as per the evidence adduced by him and exhibits marked on his side are clearly reflecting the title and possession over plaint schedule property in in favour of Plaintiff. The evidence adduced by Plaintiff as PW-1 and his witness as PW-2 are remained unchallenged due to Defendants did not choose to cross-examine PW-1 & PW-2. Hence, the evidence adduced by Plaintiff became final and remained as unchallenged.

8.3Thus from the unchallenged testimonies of PW-1 and PW-2 coupled with Exs.A-1 to A-9, this Court is of considered opinion that the Plaintiff is entitled to the reliefs as prayed for. Accordingly, Issue

Nos.1 & 2 are answered in favour of Plaintiff.

9. ISSUE NO.3: Whether the Plaintiff is entitled for

Permanent Injunction as prayed for ?

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PJCJ’S Court, Anakapalli Date: 26.04.2024

As already discussed above, the Plaintiff has right, title over the Plaint Schedule Property and this Court is already declared

Plaintiff as owner of Plaint Schedule Property, on that after delivery of vacant possession, the Defendants and their men are directed not to interfere with peaceful possession and enjoyment of ABCD Plaint

Schedule Property as prayed by Plaintiff.

10.On perusal of averments of Plaintiff and other material on record, this Court observed that another issue has to be framed by this Court i.e., Whether the Plaintiff is entitled for Recovery of

Possession of Plaint Schedule Property or not ?

As can be seen from entire evidence, the evidence is clearly showing that the father of Plaintiff is the owner of property and his son i.e., Plaintiff got the property by way of Gift Settlement

Deed and the entire property situated in Survey No.395/5 except some part of the property which is of Ac 0.01 cents of land shown in

ABCD portion in sketch issued by surveyor is in possession of Plaintiff.

The Surveyor report is also clearly showing that the Defendant's father encroached Acre 0.01 cents of land from the land situated in

Survey No.395/5-B, which is belongs to Plaintiff. Basing on which, when this Court declared the Plaintiff as rightful owner of the Plaint

Schedule Property as clearly discussed above and the same was encroached by Defendants, automatically the Plaintiff is entitled for

Recovery of possession of encroached portion of property i.e., the red marked Acre 0.01 cents of property shown in Ex.A-2 map, which is in the possession of Defendants. Accordingly, this issue is answered in favour of Plaintiff.

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PJCJ’S Court, Anakapalli Date: 26.04.2024 11 ISSUE NO.4: To what relief ?

In the result, this Suit is decreed with costs on the following points:-

1)The Plaintiff is declared as rightful owner of ABCD (red marked) portion of property i.e., the encroached portion of Acre 0.01 cents by Defendants in Survey No.395/5-B, which is situated on

NorthernsideofDefendant’slandi.e.,

Survey No.395/9-A.

2)The Plaintiff is entitled for vacant possession of ABCD (red marked) portion of property shown in Ex.A-2 Survey plan i.e.,

Acre 0.01 cents of land and the Defendants are hereby directed to remove the structures/plants/bushes in the “ABCD” marked property in Ex.A-2 within three (3) months from the date of decree otherwise, the Plaintiff is at liberty to proceed as per procedure established by law.

Typed to my dictation to the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 26th day of April, 2024.

xxxSd/-P.Pradeepa

PRINCIPAL CIVIL JUDGE,

(JUNIOR DIVISION),

ANAKAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants:

PW-1 : Alla VeeragangarajuNONE PW-2 : Koilada Venkata Rao

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PJCJ’S Court, Anakapalli Date: 26.04.2024

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A-1Certified copy of Registered Settlement Deed executed by A.Maheswara Rao / father of Plaintiff in his favour, dated 24.05.2014.

Ex.A-2Original Endorsement of Tahsildar, Munagapaka along with sketch, dated 20.09.2016.

Ex.A-3Meeseva copy of FMB for Survey No.395, dated 22.11.2016.

Ex.A-4Served copy of First Information Report lodged by Plaintiff’s father, dated 08.07.2016.

Ex.A-5Attested copy of plan and proceedings issued by the Secretary,Grampanchayat,Thodada,dated 10.10.2014.

Ex.A-6Original of Paddadar pass book issued by the Mandal Revenue Officer in favour of his father / A.Maheswara Rao.

Ex.A-7Meeseva copy of Proceedings by the Revenue Divisional Officer, Anakapalli, dated 30.04.2015.

Ex.A-8Original 1-B extract obtained from Gram Sachivalayam,

dated 07.08.2022

Ex.A-9Attested copy report of Mandal Surveyor along with sketch obtained under RTI Act.

DOCUMENTS MARKED FOR DEFENDANTS

- NIL -

xxxSd/-P.Pradeepa

PRINCIPAL CIVIL JUDGE,

(JUNIOR DIVISION),

ANAKAPALLI.

Page 17 of 18

FAIR

O.S.NO.03/2017

PJCJ’S Court, Anakapalli Date: 26.04.2024 // True Copy // xxxSd/-P.Pradeepa

PRINCIPAL CIVIL JUDGE,

(JUNIOR DIVISION),

ANAKAPALLI.

Page 18 of 18

1O.S.No.246-2021, JCJ/GWK Dt.29-11-2024

IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) AT GAJUWAKA

Present: Smt. P.Pradeepa,

Civil Judge (Junior Division) Gajuwaka

Friday, this the 29th day of November, 2024

ORIGINAL SUIT NO.246/2021

Between :

Sri.Kunuru Appala Raju, Son of Late Rambabu, aged 52 years, Aadhar No.6180 5009 1854, residing at D.No.2-5-10, Ramnagar, Mindi, Visakhapanam-12. Cell Phone No.9701026507. … Plaintiff

A n d:

1.Smt.Panku Veeramma, wife of late Assevadham, aged about 50 years, residing at Door No.5-86, Sundar Shyam Colony, Senathivanipalem, Pendurthy Mandal, Visakhapatnam-530 057. Aadhar number and Mobile number not known to the Plaintiff.

2.Sri.Panku Pradeep, Son of late Asservadham, aged about 30 years, residing at Door No.No.5-86, Sundar Shyam Colony, Senathivanipalem, Pendurthy Mandal, Visakhapatnam-530 057. Aadhar number and Mobile number not known to the Plaintiff. … Defendants

This Original suit coming on 27.11.2024for final hearing before me in the presence of Sri.D.Satya Varma, Advocate for Plaintiff and of Sri.Pydi Papa Rao, Sri. D.Annayya Babu and Sri. P.Manikanta, Advocates for the defendants and the matter having stood over for consideration till this day, this court delivered the following:

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

01.This suit is filed by the plaintiff against the defendants for recovery of a sum of Rs.3,09,999/-(Rupees Three Lakhs Nine Thousand Nine Hundred

Ninety Nine Only) being principal and interest due on a suit promissory note,

dated 18-04-2019, for subsequent interest and for costs of the suit.

2O.S.No.246-2021, JCJ/GWK Dt.29-11-2024

02.The averments of the Plaint in nutshell are that :

First Defendant is the wife and 2nd Defendant is son of Panku

Asservadham who is colleague of Plaintiff borrowed an amount of Rs.2,00,000/- (Rupees Two Lakhs Only) on 18-04-2019, from the Plaintiff for the purpose of his family necessities, agreeing to repay the same along with interest at the rate of 24% per annum to the plaintiff or to his order on demand and on the same day on receipt of cash consideration, the said Panku Asservadham executed a demand promissory note in favour of the Plaintiff at the house of the Plaintiff in the presence of attester and scribe. Subsequently,the defendant had not bothered to pay any amount to the plaintiff either towards the principal or interest inspite of several demands made by the plaintiff. On 11-05-2021, the said Panku

Asservadham died leaving behind him the Defendants 1 & 2 are his legal representatives to succeed the estate of the deceased Panku Asservadham.

After demise of Panku Asservadham, the Plaintiff demanded the defendants 1 and 2 who are his legal heirs about the repayment of his debt, the Defendants 1 and 2 postponing the payment on one pretext or the other. Finally the Plaintiff got issued a lawyer's notice dt.16-07-2021 calling upon the Defendants 1 & 2 to repay the promissory note amount with accrued interest and said notices were returned unserved with returned postal endorsement "not claimed hence returned to sender", even after that the Defendants 1 & 2 did not choose to pay the debt amount, hence this suit.

3.The first defendant filed her written statement and the same was adopted by the 2nd defendant, both defendants by denying the averments of the plaint filed their written statement and further contended that Originally one

Mr.Naveen, who is working in BHEL (BHPV), Visakhapatnam and colleague of

Sri.Panku Aseervadam. During the life time of the husband of the 1st Defendant

Panku Aseervadam borrowed amount of Rs.1,00,000/- from the said Naveen. At the time of borrowing amount, the said Naveen has obtained the signatures of 3O.S.No.246-2021, JCJ/GWK Dt.29-11-2024 said Panku Aseervadam on four blank printed promissory notes. Subsequently, the husband of the 1st Defendant has repaid the debt amount from time to time to the said Naveen. Finally, in the month of April, 2021, the husband of the 1st defendant has repaid the remaining balance due amount to the said Naveen. But the said Naveen did not return the blank printed notes duly signed by the husband of the first defendant by stating that the said blank promissory notes are kept by him at his bank locker and assured to Panku Aseervadam that the blank promissory notes will be returned soon. The husband of the 1st defendant has believed the words of the said Naveen, but inspite of repeated requests and demands made by the said Aseervadam, the said Naveen did not return the same. Later due to Pandemic situation of Covid-19, the husband of the 1st defendant Sri.Panku Asservadam died on 11-05-2021 due to CORONA. Taking advantage of the sudden death of Sri.Panku Aseervadam, the said Naveen fabricated the one of the promissory notes available with him and filed this suit through the Plaintiff. After receipt of the summons in the above suit, this defendants understand that the said Naveen forged and fabricated the promissory note available with him, with the active assistance of the attesters pressed into service and filed the present suit through this Plaintiff with false, frivolous and untenable allegations for the purpose of wrongful gain. The Plaintiff never approached these defendants and never demanded to clear the debt amount at any point of time and they never admitted the above debt and never assured to clear the debt amount to the Plaintiff as alleged by him in his plaint.

The Husband of 1st Defendant Panku Aseervadam never borrowed any amount from the Plaintiff under the alleged suit promissory note dt.18-04-2019, and it is not supported by any consideration. The Plaintiff has no financial capacity to lend such a huge amount to others. Hence, prayed to dismiss the suit.

04. Based on the pleadings, the following issues are settled for trial.

1. Whether the suit promissory note is true, valid and binding on the defendants?

4O.S.No.246-2021, JCJ/GWK Dt.29-11-2024

2. Whether the plaintiff is entitled to recover the amount as prayed for?

3. To what relief?

05.During the course of trial, the plaintiff himself examined as P.W.1 and got marked Exs.A1 to Ex.A4. One Tammineni Naga Raju, who is scribe of Ex.A1

Promissory note was examined as P.W.2. On behalf of defendants, 1st Defendant was examined as D.W.1, but the 1st defendant did not comeforward to adduce her evdence, hence evidence of DW1 was closed.. After completion of trial the counsel for Plaintiff putforth his arguments before the court, due to no representation on Defendant side, Defendants side Arguments are treated as heard.

06.On hearing on Plaintiff side counsel, the counsel for Plaintiff reiterated the averments mentioned in the Plaint, on that basing on the entire version of the Plaintiff and P.W.2, the Plaintiff has proved the primafacie that the husband of the 1st Defendant Panku Asservadham borrowed amount by executing a promissory note in the presence of attestor by name Namala Naveen

Babu and scribe Sri.Tammina Naga Raju, to prove the transction is genuine, the attestor of Ex.A1 was also examined to corroborate the evidence of P.W.1, as such the Plaintiff proved as the suit promissory note had taken place. He further submitted that when the primafacie was proved, automatically the onus shifts to the Defendants, when the defendants failed to prove the onus by rebutting the evidence of Plaintiff by producing any type of evidence before the court, the

Plaintiff is entitled for decree, hence prayed the court to decree the suit. On the other hand arguments on defendant side is treatd as heard.

Now this court has to answer the Issues nos. 1 and 2 to adjudicate this matter.

5O.S.No.246-2021, JCJ/GWK Dt.29-11-2024

07. Issue Nos.1 and 2:

In order to prove the case and contention of the plaintiff, the plaintiff got examined himself as P.W.1 by re-iterating the averments of the plaint in his chief- examination affidavit and got marked Exs.A.1 to Ex.A.4. Ex.A1 is the Original

Promissory note executed by Panku Aseervadham (deceased) in favour of the

Plaintiff, dt.18-04-2019; Ex.A2 is the Office copy of Registered Lawyer's notice got issued by the Plaintiff, dt.16-07-2021; Ex.A3 & Ex.A4 are the Original un- served Registered postal covers addressed to the Defendants 1 & 2. As can be seen from the averments of plaint and written statement of both parties, evidence of P.W1 and P.W.2, on hearing on plaintiff side counsel, this court observed that the version of plaintiff is that the husband of the 1st Defendant and father of 2nd

Defendant Panku Aseervadham borrowed an amount of Rs.2,00,000/- (Rupees

Two Lakhs Only) from the plaintiff on 18-04-2019, suit promissory executed a promissory note i.e., Ex.A1 in the presence of P.W.2, Namala Naveen Babu, and in the presence of Sri,Tammina Naga Raju scribe, by agreeing to repay the same @24% per annum. On repeated demands made by the plaintiff, the defendants were postponed for repayment of amount due under Ex.A1 Promissory note, on that the plaintiff got issued Ex.A2 legal notice dt. 16-07-2021, and the said notice were returned covers under EX. A3 & 4. Even after that when the defendants failed to re-pay the amount due under Ex.A1 promissory note, hence the plaintiff knocked the doors of court by seeking the relief to decree the suit in his favour.

In order to prove the case and contention of the plaintiff, the plaintiff got examined himself as P.W.1 by re-iterating the averments of the plaint in his chief- examination affidavit and got marked Exs.A.1 to Ex.A4. In the cross-examination of P.W.1 stated that he is working as Additional Engineer in BHEL., Deceased

Aseervadham is also BHEL EMployee. He lent the amount to the deceased

Aseervadham for an amount of Rs.2,00,000/- at his residence. The address of he deceased Aseervadham was not mentioned in the promissory note under Ex.A1.

EX.A1 promissory note was scribed with Blue Pen. Attestor of Ex.A1 are Namala 6O.S.No.246-2021, JCJ/GWK Dt.29-11-2024 Naveen and scribe is T.Naga Raju. The said attestor Namala Naveen is BHEL

Employee and working in same department of Deceased Aseervadham. Himself, deceased Aseervadham, atestor Naveen and scribe Naga RAju were present at the time of transaction under Ex.A1. He does not know one Y.Demudu and that the said Naveen, Y.Demudu got filed this suit through the Plaintiff by using the blank promissory notes by forging the signature of the deceased Aseervadham.

He is an income-tax assessee and he did not show the amount under Ex.A1 in his I.T returns. The other suggestions made by the counsel for Defendants are denied by P.W.1.

08. One Tammineni Naga Raju, who is scribe of Ex.A1 was examined as

P.W.2, his chief examination is in the same lines of P.W.1. In his cross- examination P.W.2 reveals that he is working as document writer. he has acquaintance with the Plaintiff due to he come to Register's office for preparing documents. At request of the Plaintiff, he went to the house of plaintiff for preparing Ex.A2 Promissory note. At the time of transaction himself, the Plaintiff,

P.Aseervadham, Namala Naveen Kumar were present. The Defendant borrowed an amount of Rs.2,00,000/- on 18-04-2019, in cash and the said transaction had taken place between 5 P.M., to 6-00 P.M.,. The other suggestions posed by the counsel for Defendants were denied by P.W.2.

09.As can be seen from the evidence of P.W.1 and 2, they categorically put forth their version successfully before the court by way of their oral evidence and by way of documentary evidence, to show that transaction had taken place between the Plaintiff and Defendants on alleged date. But on the other hand the defendant even though contended by way of his written statement that during the lifetime of her husband Sri.Panku Aseervadam borrowed amount of Rs.1,00,000/- from one Naveen. By the time of borrowing amount, the said Naveen has obtained the signatures of the said Sri.Panku Aseervadam on four blank printed promissory notes subsequently, her husband repaid the debt amount from time to 7O.S.No.246-2021, JCJ/GWK Dt.29-11-2024 time to the said Naveen, but the said Naveen did not return the blank printed

Promissory note duly signed by her husband by say stating that the said blank

Promossory notes are kept by him at his bank locker and assured notes will be returned soon. Taking advantage of death of her husband, the said Naveen fabricated one of the promissory notes available with him and filed this false suit through the Plaintiff. But the defendants did not adduce any evidence and did not take any steps to prove the pleadings of the defendants.

10.Moreover the Defendants contended that they want to prove that the suit promissory note is rank forged one and they will send the same to hand writing expert, but even the Defendants did not try to send the same to hand writing expert or did not try to disprove the version of the Plaintiffs by adducing their evidence. On that in the present case on hand, plaintiff with his oral evidence and documentary evidence discharged his initial burden on that it shall be presumed that the suit promissory note under Ex.A.1 is supported by consideration. The defendants should rebut the presumption by adducing positive evidence. But there is no cogent evidence to disprove the case of the plaintiff.

No material fact was elicited in cross examination of the P.Ws.1 & P.W.2, to support the version of the defendants. Assume for a moment, if the contention of the defendants is true, they would have certainly taken steps and they try to put forth cogent evidence to prove their contention, but they did not do so, hence the contention of the counsel for the defendants is not tenable. On that this court believes that the suit promissory note is genuine, supported by consideration and the defendants has to binding upon.

11.From the above said discussion, this court is of opinion that the evidence of P.W.1 & P.W.2 along with Exs.A.1 to Ex. A4 is remained as trust worthy in the eye of law on that this court believed that the version of the Plaintiff that the husband of the 1st Defendant and father of the 2nd Defendant borrowed suit amount on execution of Ex.A.1 promissory note on the even date, lawful 8O.S.No.246-2021, JCJ/GWK Dt.29-11-2024 consideration was passed under the promissory note. Hence the plaintiff is entitled for suit claimed amount with interest as agreed upon. Accordingly Issue

Nos.1 to 2 are answered in favour of plaintiff against the defendants.

12.In the result, the suit is decreed with costs in favour of the plaintiff against the defendants for an amount of Rs.3,09,999/- (Rupees Three Lakhs

Nine Thousand Nine Hundred Ninety Nine Only)with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs.2,00,000/- (Rupees Two Lakhs Only).

Typed to my dictation by the Stenographer Gr-III and corrected and pronounced by me in the open court , this the 29th day of November, 2024. xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE( JUNIOR DIVISION),

GAJUWAKA

APPENDIX OF EVIDENCE

No. of witnesses examined

For Plaintiff : P.W.1 : Kunuru Appala Raju P.W.2 :Tammineni Naga Raju For Defendant : D.W.1 : Panku Veeramma

No. of Exhibits marked

For Plaintiff : Ex.A.1/ Original Promissory note executed by the deceased Panku Aseervadham in favour of the Plaintiff, dt.18-4-2019 Ex.A2/Office copy of Registered lawyer's notice got issued by the Plaintiff, dt.16-07-2021 Ex.A3/Original unserved Registered postal cover addressed to the 1st Defendant Ex.A4/Original unserved Registered postal cover addressed to the 2nd defendant.

For Defendant : - Nil- xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE( JUNIOR DIVISION),

GAJUWAKA

9O.S.No.246-2021, JCJ/GWK Dt.29-11-2024

Date of presentation:04-08-2021 Date of filing: 07-08-2021

IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) AT GAJUWAKA

Present: Smt. P.Pradeepa,

Civil Judge (Junior Division) Gajuwaka

Friday, this the 29th day of November, 2024

ORIGINAL SUIT NO.246/2021

Between :

Sri.Kunuru Appala Raju, Son of Late Rambabu, aged 52 years, Aadhar No.6180 5009 1854, residing at D.No.2-5-10, Ramnagar, Mindi, Visakhapanam-12. Cell Phone No.9701026507. … Plaintiff

A n d:

1.Smt.Panku Veeramma, wife of late Assevadham, aged about 50 years, residing at Door No.5-86, Sundar Shyam Colony, Senathivanipalem, Pendurthy Mandal, Visakhapatnam-530 057. Aadhar number and Mobile number not known to the Plaintiff.

2.Sri.Panku Pradeep, Son of late Asservadham, aged about 30 years, residing at Door No.No.5-86, Sundar Shyam Colony, Senathivanipalem, Pendurthy Mandal, Visakhapatnam-530 057. Aadhar number and Mobile number not known to the Plaintiff. … Defendants

This suit is filed by the plaintiff against the defendants for recovery of a sum of Rs.3,09,999/-(Rupees Three Lakhs Nine Thousand Nine Hundred Ninety Nine Only) being principal and interest due on a suit promissory note, dated 18- 04-2019, for subsequent interest and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.3,09,999/-(Rupees Three Lakhs Nine Thousand Nine Hundred Nine Hundred Ninety Nine Only) and a court fee of Rs. 5,526/- (Rupees Five Thousand Five Hundred Twenty Six Only) is paid under section 20, Art-1 (b) & (c) of Sch-I of A.P.C.F and S.V.Act, vide challan No.214021, dt.4-08-2024, of Andhra Bank, Gajuwaka Branch, Visakhapatnam.

This Original suit coming on 27.11.2024for final hearing before me in the presence of Sri.D.Satya Varma, Advocate for Plaintiff and of Sri.Pydi Papa 10O.S.No.246-2021, JCJ/GWK Dt.29-11-2024 Rao, Sri. D.Annayya Babu and Sri. P.Manikanta, Advocates for the defendants and the matter having stood over for consideration till this day, this Court doth Order; and

D E C R E E

1. that the defendants do pay to the plaintiff a sum of Rs.3,09,999/- (Rupees Three Lakhs Nine Thousand Nine Hundred Ninety Nine Only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit i.e.,07-08-2021, till the date of decree i.e., 29-11-2024, and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs.2,00,000/- (Rupees Two Lakhs Only); and

2.that the defendants do also pay to the plaintiff a sum of Rs. 5,671/-(Rupees Five Thousand Six Hundred Seventy One Only) towards institutional costs of the suit.

Given under my hand and the seal of the Court, this the 29th day of November, 2024, xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE (JUNIOR DIVISION)

GAJUWAKA

MEMORANDUM OF COSTS

FOR PLAINTIFF FOR DEFENDANT

No costs memo filedNo costs memo filed

Rs.Ps.

Stamp on Vakalat: 2-00

Stamp on plaint: 5,526-00

Stamp on Process: 143-00 ----------------

Institutional costs allowed: 5,671-00 --------------- xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE (JUNIOR DIVISION)

GAJUWAKA

//TRUE COPY//

JCJ/GWK

1

C.C. No.1875/2017

Dt. 12.02.2025

IN THE COURT OF THE I ADDITIONAL CHIEF JUDICIAL MAGISTRATE

VISAKHAPATNAM.

Present:-Smt. P. Pradeepa,

I Addl. Chief Judicial Magistrate, Visakhapatnam.

Wednesday, this the 12th day of February, 2025.

C.C. No.1875/2017

Between :

State rep. by the Sub Inspector of Police, Disha Women Police Station, Visakhapatnam City. ….Complainant And :

Accused No.1: Vasireddy Satya Aditya, S/o Venugopal Rao, aged about 32 years, r/w no In PCC Technology Group, INC NO.100, North filed drive, Suite 300, Windsor, CT 06095, USA, N/o Sector-4, H.No.303/3, Ukku Nagarm, Visakhapatnam.

Accused No.2: Vasireddy, Sarala, S/o Venugopala Rao, aged about 55 years, r/o Sector-4, H.No.303/3, Ukkunagaram, Steel Plant, Quarters, Visakhapatnam city.

Accused No.3: Vasireddy Venugopala Rao, S/o late Satyanarayana, aged about 60 years, r/o Sector-4, H.No.303/3, Steel Plant Quarters, Visakhapatnam. ….Accused

This case is comingon 10.01.2025 for final hearing before me in the presence of learned Asst. Public Prosecutor for the State and of Sri. P. Murali Gopal, learned Advocate for the Accused No.1 to Accused No.3 and after hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

The Sub Inspector of Police, Disha Women Police Station,

Visakhapatnam City filed charge sheet in Cr.No.09/2017 against the 2

C.C. No.1875/2017

Dt. 12.02.2025

Accused Accused No.1 to 3 for the offence punishable under Section 498-A, 506 of Indian Penal Code and Sections 3 & 4 of D.P. Act.

The brief facts of the case of the prosecution are as follows:-

2.The Sub Inspector of Police, Disha Women Police Station,

Viskhapatnam City filed Charge sheet against all the accused by alleging that, the marriage of L.W.1/Varapula Venkata Akhila was performed with

Accused No.1 on 15.08.2014 in the presence of both side elders, at the time of marriage, the accused No.1 said that he is working as software engineer in

PCC Technology Group, Windsor, Connect Cut. At the time of marriage her parents gave Rs.10,00,000/- towards dowry including adapaduchu katnam through online bank transaction Rs.2,50,000/- towards paraphernalia,

Rs.2,00,000/- worth of gold to her husband, 1 Kg silver items, to her husband and in laws on their demand. L.W.1/Varapula Venkata Akhila parents gifted her with 15 tulas gold and performed her marriage in a grand manner by spending Rs.8,00,000/-. After her marriage L.W.1/Varapula Venkata Akhila went to her in-laws house for conjugal life and lived there up to 30-08-2014, after that Accused No.1 to 3 started harassment to bring additional dowry of

Rs.10,00,000/- and one house from her parents. Later on 30-08-2014

Accused No.1 took her to USA along with him and took a house for rent in

USA, where there are no Indians, there also Accused No.1 harassed her to bring additional dowry and property from her parents house. Accused No.1 never showed interest to lead conjugal life with her. Due to that harassment she fell sick. On that her father sent her flight ticket worth of Rs.45,000/-, then she alone came to India from USA on 10-04-2015 and she stayed for 8 months in her parents house. After 8 months accused No.1 came from USA to her parents house, negotiations are held in the presence of elders, after negoitionatins Accused No.1 taken away L.W.1/ Varapula Venkata Akhila to her in laws house and they lived there for 4 months. After that L.W.1/ 3

C.C. No.1875/2017

Dt. 12.02.2025

Varapula Venkata Akhila along with her parents when to USA with Accused

No.1. After 15 days L.W.1/Varapula Venkata Akhila and Accused No.1 shifted to Indian community apartment. There also he did not change his attitude and used to beat L.W.1/Varapula Venkata Akhila by demanding

additional dowry and property and also by saying that he doesn’t want

children after 3 months her parents came down to India, then in laws of

L.W.1/ Varapula Venkata Akhila went to U.S.A, during that time, they used to harass and abuse her in filthy language. Accused No.1 has illicit intimacy with one Sirisha Kurba, she also investigated the husband of L.W.1/

Varapula Venkata Akhila to harass and beat her , even it is within the knowledge of in laws of L.W.1/Varapula Venkata Akhila, but the in laws of

L.W.1/Varapula Venkata Akhila performed the marriage of Accused No.1 with L.W.1/ Varapula Venkata Akhila. Accused No.1 used to speak with

Sireesha in front of L.W.1/ Varapula Venkata Akhila with foul words and he said to Sireesha that he will leave L.W.1/Varapula Venkata Akhila and don’t want L.W.1/ Varapula Venkata Akhila, her in laws supported her husband and encouraged him to beat her, Accused No.1 was addicted for bad vices like womanizing, drinking smoking etc. All of sudden Accused No.1 brought to L.W.1/ Varapula Venkata Akhila to India, and later in train to

Visakhapatnam, while coming to the Visakhapatnam in train, when the train reached to Duvvada Railway Station Accused No.1 subjected L.W.1/

Varapula Venkata Akhila to cruel harassment to give additional dowry and property. When the parents of L.W.1/ Varapula Venkata Akhila questioned

Accused No.1, Accused No.1 beat the father of L.W.1/ Varapula Venkata

Akhila. Accused No.1 used to threatened L.W.1/ Varapula Venkata Akhila that he will kill her. Due to the harassment of Accused No.1 to 3, L.W.1/

Varapula Venkata Akhila lodged a report at Disha Women Police Station.

Basing on the report of L.W.1/Varapula Venkata Akhila and the same is registered as a case in Crime No.9/2017 for the offence punishable under 4

C.C. No.1875/2017

Dt. 12.02.2025

Section 498-A, 506 of IPC and Sections 3 & 4 of Dowry Prohibition Act, 1961 by L.W.7/M. Rama Krishna, Assistant Sub Inspector of Police, Disha Women

Police Station, Visakhapatna, during the Course of investigation he examined witnesses L.W.1 to L.W.6 as witnesses and recorded their 161

Cr.P.C. statements. L.W.7/ M.Rama Krishna, Assistant Sub Inspector Disha

Women Police Station served Notices under Sec.41-A of Criminal Procedure

Code on Accused No.1 to Accused No.3 and obtained Bonds from them on the same day by directing them to appear before the Court and after completion of investigation filed charge sheet against Accused No.1 to

Accused No.3.

3.Cognizance was taken by this court for the offence punishable under Section 498-A, 506 of Indian Penal Code., and Sections 3 and 4 of

Dowry Prohibition Act, against Accused No.1 to Accused No.3.

4.On appearance of the Accused No.1 to 3, copies of documents furnished on all the accused under Section 207 of Criminal Procedure Code.

5.On appearance of Accused No.1 to Accused No.3 were examined Under Section 239, Criminal Procedure Code, for the charges for the offence punishable under Section 498-A, 506 of Indian Penal Code, and

Sections 3 and 4 of Dowry Prohibition Act, against the Accused No.1 to

Accused No.3 were framed, the contents of charge were read over and explained to them, they pleaded not guilty and claimed to be tried.

6.In pursuance of the case of the prosecution, the prosecution has examined PW.1 to P.W.3 only and got marked Exs.P.1 to P.4.

5

C.C. No.1875/2017

Dt. 12.02.2025

7.As there is no incriminating material found against the Accused

Accused No.1 to Accused No.3 from the evidence of prosecution witness, the examination of Accused No.1 to Accused No.3 under Section 313, Criminal

Procedure Code was dispensed with.

8.Heard both sides.

9. Now the point that arises for determination is:

“Whether the prosecution has proved the guilt Accused No.1 to 3 for the offence punishable u/Sec.498-A, 506 of Indian Penal Code, “Whether the prosecution has proved the guilt Accused No.1 to 3 for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act, beyond all reasonable doubt?

10. POINT No.1 :-

To prove the offence u/Secs.498-A and 506 of Indian Penal

Code and Sections 3 and 4 of Dowry Prohibition Act, the prosecution has to establish that the victim i.e., P.w.1 was subjected to cruelty and harassment for additional dowry, in the hands of Accused No.1 to 3 and Accused No.1 to 3 with malafide intention to intimidated P.W.1 .

11. Perused the record. The leaned APP during the time of arguments submitted that the material witnesses i.e., P.W.1 and her parents did not turn up with the prosecution version and on that the prosecution has declared them hostile and also due to no incriminating evidence against the accused before the Court on that the evidence of L.W.4 to 8 are given up by him. He further submitted that when there is no incriminating material, it is 6

C.C. No.1875/2017

Dt. 12.02.2025

left to the leave of court. On the other hand, the counsel for defence reported no cross examination.

12.On perusal of the entire record, and hearing of learned APP this court observed that out of eight list of witnesses, the prosecution got examined only three list of witness. In the present case on hand, PW.1 is the victim, P.W.2 and P.W.3 are the parents of P.W.1. Since the Defecto complainant/ Victim and her parents did not turn up positively by adducing the evidence to support the version of the Prosecution case to prove the charges levied against the accused, on that the Learned APP has given up the evidence of L.W.4 to L.W.8 i.e., S. Srinivasa Rao, E.S. Usha Rani, Ch.

Madhava Rao, M. Rama Krishna and Kum. G. Nagamani.

13.During the time of chief examination of PW.1, she deposed

before this Court that on 14-08-2014 her marriage was solemnized with

Accused No.1 at Srinivasa Kalyanamandapam, Aganampudi at

Visakhapatnam and after their marriage she joined with Accused No.1 and went to her in-law’s house situated at Steel Plant, they resided together happily for three years, thereafter disputes arose between them and then she lodged a report before the police as per the instructions of the elders. She further deposed that she does not know the contents of the report given by her. On that her signature on a report dated 01-02-2017 is marked as

Ex.P.1. When the victim/P.W.1 did not turn up positively to support the version of prosecution and did not sailed with her previous report or statement, on that the witness was declared as hostile by this Court on requisition of learned APP. PW1 denied the suggestion put by learned APP in her cross examination and denied the contents of Ex.P2, which is alleged to be recorded by investigation officer during the time of investigation. As can be seen from the evidence of P.W.2 and P.W.3, they also in their chief 7

C.C. No.1875/2017

Dt. 12.02.2025

examination, stated in the same lines as stated by P.W.1, on that they are also declared as hostile. On over all scrutiny of evidence of P.W.1 to P.W.3, there is no material in the evidence of P.W.1 to P.W.3 with regard to demand of additional dowry and cruelty and harassment in the hands of Accused

No.1 to 3. So also the evidence of no way reveal about the acts of the accused which attracts the ingredients of criminal intimidation caused by accused against P.W.1. On that this court is of the considered opinion that the prosecution failed to establish the guilt of the Accused No.1 to 3 for the offence punishable under Section 498-A, 506 of Indian Penal Code.

14. POINT NO.2:

Further to answer the point No.2 this court relied on the version of P.W.1 to P.W.3. The evidence of P.W.1 nowhere reflecting that her parents presented amount and paraphernalia to the accused on their demand. So also the evidence of P.W.2 and 3 also reflecting that there is no specific mention with regard to presentation of dowry to the accused. When there is no specific mention or no iota of evidence against the accused with regard to taking dowry by them, in such a case it is very clear before the court that the prosecution failed to prove the guilt of the accused for the offece punishable under Section 3 and 4 of D.P. Act.

15.On over all scrutiny of entire evidence on prosecution side, this court is of the opinion that the prosecution failed to bring home the guilt of the accused in any corner, on that no conviction can be based on assumptions and presumptions. Thus considering the material on record, there is absolutely no incriminating material available on record to prove the guilt of the accused for the offences punishable under Sections 498-A, 506 of

Indian Penal Code and Section 3 and 4 of D.P.Act. As such, the Accused

No.1 to Accused No.3 are entitled for acquittal.

8

C.C. No.1875/2017

Dt. 12.02.2025

16.In the result, Accused No.1 to 3 are found not guilty for the offence punishable under Section 498-A, 506 of Indian Penal Code and

Sections 3 and 4 of Dowry Prohibition Act, and accordingly, the Accused

No.1 to 3 are acquitted under Section 248 (1) of Criminal Procedure Code.

The Accused No.1 to 3 are set at liberty forthwith in the present case. The bail bonds of the Accused No.1 to 3 shall be in force for a period of six months from the date of this Judgment under Section 437-A Criminal

Procedure Code. No property order is passed as there is no property in this case.

Typed to my dictation to the Grade-III Stenographer, corrected and pronounced by me in the open court, this the 12 th day of February, 2025.

Sd/- Smt. P. Pradeepa

I ADDL. CHIEF JUDICIAL MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Varapula Venkata Akhila - None -

P.W.2: Varapula Prasada Rao

P.W.3: V. Venkata Alivelu Mangeswari

DOCUMENTS MARKED

FOR PROSECUTION FOR DEFENCE:

Ex.P1: Signature of P.W.1 on report dated 01-02-2017 - NIL-

Ex.P2: Sec.161 Cr.P.C., statement of P.W.1.

Ex.P.3: Sec.161 Cr.P.C., statement of P.W.2.

Ex.P.4: Sec.161 Cr.P.C., statement of P.W.3

MATERIAL OBJECTS MARKED: NIL ` d/ Sd/- Smt. P. Pradeepa

I ADDL. CHIEF JUDICIAL MAGISTRATE,

VISAKHAPATNAM

9

C.C. No.1875/2017

Dt. 12.02.2025

CALENDER AND JUDGMENT

IN THE COURT OF I ADDL. CHIEF JUDICIAL MAGISTRATE,

VISAKHAPATNAM

CALENDER CASE NO.1875/2017

(Cr.No.9/2017 of Disha Women Police Station, Visakhapatnam Cty)

Date of offence01-02-2017

Date of report or complaint01-02-2017

Date of apprehension of the accused 05-02-2025

Date of commencement of trial 07-02-2025

Date of close of trial 10-11-2025

Date of sentence or order 12-02-2025

Accused is in Jail/Bail On Bail

Explanation of delay or remarks Due to non production of witnesses

Name of the ComplainantState Represented by the Sub Inspector of Police, Disha Women Police Station, Visakhapatnam city.

Offences U/Secs. 498-A, 506 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act,

Name of the accused. Accused No.1: Vasireddy Satya Aditya, S/o Venugopal Rao, aged about 32 years, r/w no In PCC Technology Group, INC NO.100, North filed drive, Suite 300, Windsor, CT 06095, USA, N/o Sector-4, H.No.303/3, Ukku Nagarm, Visakhapatnam.

Accused No.2: Vasireddy, Sarala, S/o Venugopala Rao, aged about 55 years, r/o Sector-4, H.No.303/3, Ukkunagaram, Steel Plant, Quarters, Visakhapatnam city.

10

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Dt. 12.02.2025

Accused No.3: Vasireddy Venugopala Rao, S/o late Satyanarayana, aged about 60 years, r/o Sector-4, H.No.303/3, Steel Plant Quarters, Visakhapatnam.

Finding Accused No.1 to 3 are found not guilty

Sentence In the result, Accused No.1 to 3 are found not guilty for the offence punishable under Section 498-A, 506 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, and accordingly, the Accused No.1 to 3 are acquitted under Section 248 (1) of Criminal Procedure Code. The Accused No.1 to 3 are set at liberty forthwith in the present case. The bail bonds of the Accused No.1 to 3 shall be in force for a period of six months from the date of this Judgment under Section 437-A Criminal Procedure Code. No property order is passed as there is no property in this case.

Sd/- Smt. P. Pradeepa

I ADDL. CHIEF JUDICIAL MAGISTRATE,

VISAKHAPATNAM.

11

C.C. No.1875/2017

Dt. 12.02.2025

1O.S.No.434-2021, JCJ/GWK Dt.27-11-2024

IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) AT GAJUWAKA

Present: Smt. P.Pradeepa,

Civil Judge (Junior Division) Gajuwaka

Wednesday, this the 27th day of November, 2024

ORIGINAL SUIT NO.434/2021

Between :

Sri.Palla Eswara Rao, S/o. Late Maridayya, aged 45 years, resident of D.No.8- 12-22, Gokul Nagar, Old Gajuwaka, Visakhapatnam-26, Aadhar No. 5864 1461 3550, Mobile No.9849367675.

........ Plaintiff

A n d:

1.Sri. Pinninti Gurunaidu, S/o. Venkati, aged 37 years, resident of D.No.13- 13-5, Sanjeevagiri Colony, Gajuwaka Mandalam, Visakhapatnam-26, Aadhar No.4060 8880 4984 and Mobile number not known to the Plaintiff.

2.Smt. Pinninti Lakshmi, W/o. Pinninti Gurunaidu, aged 31 years, resident of D.No.13-13-5, Sanjeevagiri Colony, Gajuwaka Mandalam, Visakhapatnam-26, Aadhar No.4209 4938 2305 & Mobile number not known to the Plaintiff. … Defendants

This Original suit coming on 11.09.2024for final hearing before me in the presence of Sri.D.V.Rama Rao, Advocate for Plaintiff and of Sri.K.V.Ramana, Advocate for the defendant and the matter having stood over for consideration till this day, this court delivered the following:

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

01.This suit is filed by the plaintiff against the defendants to recover a sum of Rs.19,40,400/-(Rupees Nineteen lakhs Forty Thousand and Four

Hundred Only) being principal and interest due on a suit promissory note, dated 03-06-2021, with subsequent interest and for costs of the suit.

2O.S.No.434-2021, JCJ/GWK Dt.27-11-2024

02.The averments of the Plaint in nutshell are that :

The defendants 1 & 2 are husband and wife and they jointly borrowed an amount of Rs.18,00,000/- (Rupees Eighteen lakhs Only) on 03-06- 2021 from the Plaintiff in cash for the purpose of their business and on the even date after receipt of the consideration, the Defendants 1 & 2 have jointly executed a demand promissory note in favour of the Plaintiff at his residence Gokul Nagar,

Old Gajuwaka, agreeing to repay the same with accrued interest @18% per annum on demand either to the Plaintiff or his order. Inspite of repeated demands made by the Plaintiff, the 1st Defendant issued a cheque for 9,00,000/- (Rupees Nine Lakhs Only) vide cheque no.031319, dt.02-11-2021 drawn on Axis bank, Balacheruvu Road Branch, Visakhapatnam to the Plaintiff. Accordingly the

Plaintiff presented the said cheque in his bank, State Bank of India, Old

Gajuwaka Branch, Visakhapatnam on 02-11-2021, and the said cheque was dischnored with an endorsement "Kindly Contract Drawer/Drawee Bank & present again" returned to the Plaintiff by his banker with cheque return memo dt.03-11-2021. Recently the Plaintiff came to know hat the Defendants are making hectic efforts to alienate the only immovable property they have only with an intention to defraud the Plaintiff as such expecting possibility of alienation of property they have, the suit is filed without issuing notice, hence, the plaintiff filed the present suit.

03.The 1st defendant filed his written statement, adoption memo filed by the 2nd Defendant adopting the Written Statement filed by the 1st Defendant by denying the averments of the plaint and further contended that he never borrowed any amount from the Plaintiff and never executed the alleged promissory note on any date for the alleged amount of Rs.18,00,000/- (Rupees

Eighteen lakhs Only) at any point of time, much less on 03-06-2021. The alleged transaction never took place between the Plaintiff and the Defendant as such the passing of consideration on the alleged promissory note does not arise at all.

3O.S.No.434-2021, JCJ/GWK Dt.27-11-2024 There is no need to borrow such alleged amount of Rs.18,00,000/- to meet his family expenses from the Plaintiff at any point of time since the Defendant is capable enough funds to meet his necessities and further he had no need for any amount as noted in the alleged promissory note dt.03-06-2021, so the theory invented by the Plaintiff is total incorrect and it is created one. on 08-11-2016, the

Government of India, announced the demonetization of all the currency of Rs.500 and Rs.1000 bank notes of Mahatma Gandhi Series, so it is not possible to lend such huge amount by the Plaintiff to this Defendants and as per the rules and regulation of the RBI, Rs.50,000/- above transaction it should be made either cheque or on line transfer only. The pleadings are inconsistence with the documents filed by the Plaintiff along with the plaint and the suit is not maintainable both in law and fact. Hence, it is prayed to dismiss the suit.

04. Based on the pleadings, the following issues are settled for trial.

1. Whether the suit promissory note is true, valid and binding on the defendants?

2. Whether the plaintiff is entitled to suit relief as prayed for?

3. To what relief?

05.During the course of trial, the plaintiff himself examined as P.W.1 and got marked Ex.A1. One Jeeru Kranthi Kumar, who is 2nd attestor of Ex.A1 was examined as P.W.2. Inspite of conditional order of this court, the defendants did not choose to cross examine the P.W.2, hence cross-examination of P.W-2 was treated as nil, further the defendants also didnot choose to adduce their evidence, on that evidence on defendants side is treated as Nil.

06.Heard the arguments of the plaintiff. Inspite of conditional order of this court, the defendants had not shown any interest to submit his arguments.

Hence the arguments of the defendant was treated as heard.

4O.S.No.434-2021, JCJ/GWK Dt.27-11-2024

07.The counsel for the Plaintiff reiterated the averments mentioned in the Plaint further he submitted that in order to prove the case and contention of the plaintiff, the plaintiff got examined himself as P.W.1 and put forth his version

before the court by way of his chief examination affidavit and got marked Ex.A.1.

Ex.A1 is Original Promissory note executed by the Defendants in favour of the

Plaintiff,dt.03-06-2021, he was examined in cross at length but the defendants failed to bring any new fact from the mouth of the Plaintiff to either tosupport the version of Defendant or in the lines to disprove the version of Plaintiff. When the

Plaintiff proved his version successfully by producing his oral and documentary evidence, but the defendant didnot choose to adduce his evidence on that the version of Plaintiff is remained as proved. Hence prayed the court to decree the suit.

Since the Defendants didnot choose to adduce their evidence and also didnot choose to argue the matter hence this court by basing on the writtenstatement filed by the Defendants inclined to adjudicate this matter.

Now this court has to answer the Issues No.1 and 2 at first to adjudicate this matter.

Issues No.1 and 2:

08.To decide issues no.1 and 2, this court has gone through with the averments of Plaint, Writtenstatement, chief-examination and cross-examination of P.W.1. As can be seen from the chief examination affidavit, it is nothing but the reiteration of the contents of the Plaint filed by the Plaintiff, as can be seen from Ex.A.1 promissory note and chief-examination of P.W.1, it is very clear that defendants 1 & 2, have jointly borrowed a sum of Rs.18,00,000/- (Rupees

Eighteen Lakhs Only) on 03-06-2021, from the Plaintiff for the purpose of their business, after receipt of the consideration the defendants 1 & 2 have jointly executed a demand promissory note infavour the Plaintiff on the same day i.e.,on 03-06-2021, agreeing to repay the said amount together with interest at the rate 18% P.A., either to him or to his order, on demand. Further the version of the 5O.S.No.434-2021, JCJ/GWK Dt.27-11-2024 Plaintiff is that the entire transaction had taken place at his residence Gokul

Nagar, Old Gajuwaka, in the presence of K.Lakshmi, J.Kranthi Kumar and scribe

M.Satyha Rao. Subsequent to that, inspite of repeated demands made by the

Plaintiff personally and through elders, the Defendants 1 & 2 did not discharge the debt amount including interest, hence he filed this suit for recovery of amount due under promissory note and prayed the court for passing of decree as prayed for. In the cross-examination of P.W.1 stated that he is income tax assessee with regard to his firm, but he is not income tax assessee personally. The amount which was lent to the Defendants was incurred from the sale consideration of his

Land and he can produce the document pertaining to that transaction. The scribe by name Satya Rao was brought by the Defendants. He did not issue any legal notice to the Defendants, when the cheque issued by the 1st Defendant was dishonoured. The other suggestions made by the counsel for Defendants is denied by P.W.1. One Jeeru Kranthi, who is 2nd attestor of Ex.A1 was examined as P.W.2, he supported the evidence of P.W.1. Though several opportunities were given by the court, the defendants did not choose to appear before the court to cross-examine the P.W-2. Hence the cross-examination of P.W- 2 was treated as nil.

09.Even though after gone through with the cross examination of P.W.1,

P.W.1 was examined elaborately in cross by the counsel for the defendants, to disprove the transaction under Ex.A.1, but nothing was went against the version of the Plaintiff to come to conclusion that the suit transaction had not taken place as alleged by the Defendant. Moreover the plea of the Defendants is that on the date of transaction, there was a demonetization of the currency notes, the

Government of India announced the demonetization of all the currency of Rs.500 and Rs.1000 bank notes of Mahatma Gandhi Series, so it is not possible to lend such huge amount by the Plaintiff to this Defendants and as per the rules and regulation of the RBI, Rs.50,000/- above transaction it should be made either by way of cheque or on line transfer only. At this juncture this court inclined to rely on 6O.S.No.434-2021, JCJ/GWK Dt.27-11-2024 the decision reported in N.Ramamoorthy vs M/S.Sharma Carpets), where in

Hon’ble High Court of Madras held that “Merely because the transaction in

question has not been shown in the income tax returns, it would not be rendered void. If the lender has advanced a certain amount which ought to have been reflected in the tax returns but he failed to disclose the same in his returns, that would not exonerate the borrower from the liability to repay. The default committed by the lender may attract penal action from the department. But his right to recover the amount from the borrower cannot be extinguished. “

From the above said citation this is very clear before the court that mere non showing in the Income Tax returns or deviation of Income Tax rules cannot extinguish the right of the Plaintiff to sue for recovery of amount due under the promissory note;

Secondly, even though the Defendants filed their written statement and also cross examined P.W.1, but nothing was turned up in his favour to disprove the version of Plaintiff, automatically the Defendants has to adduce their evidence, but the defendants did not choose to adduce their evidence on that automatically this court believes the version of the Plaintiff and when the court believes that the Plaintiff has discharged his initial burden automatically this court can come to a conclusion the suit promissory note is supported by consideration.

10. When the Plaintiff discharged his initial burden automatically

Sec. 118 of Negotiable Instruments Act comes into picture, in such a case the defendant should rebut the presumption by adducing positive evidence. But the defendant did not adduce any evidence and did not take any steps to prove the pleadings of the defendants. If the defendant is serious about his plea, he would have certainly taken steps and adduce cogent evidence to prove his contention.

When the Defendants failed to do so, in such a case the version of the Plaintiff is remained as uncontroversial. Hence from the above said discussion, this court is of opinion that the plaintiff is entitled for suit claimed amount with interest as 7O.S.No.434-2021, JCJ/GWK Dt.27-11-2024 agreed upon. Accordingly, Issue Nos.1 to 2 are answered in favour of plaintiff against the defendant.

ISSUE NO.3: To what relief?

11.In the result, the suit is decreed with costs in favour of the plaintiff against the defendant for an amount of Rs.19,40,400/- (Rupees Nineteen Lakhs

Forty Thousand Four Hundred Only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs.18,00,000/- (Rupees Eighteen Lakhs Only).

Typed to my dictation by the Stenographer Gr-III and corrected and pronounced by me in the open court , this the 27th day of November, 2024.

xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE( JUNIOR DIVISION),

GAJUWAKA

APPENDIX OF EVIDENCE

No. of witnesses examined

For Plaintiff :

P.W.1 : Palla Eswara Rao (Plaintiff)

P.W.2 : Jeeru Kranthi

For Defendant : None

No. of Exhibits marked

For Plaintiff :

Ex.A.1/ Original Promissory note executed by the Defendants in favour of the

Plaintiff, dt.03-06-2021.

For Defendants : - Nil- xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE( JUNIOR DIVISION),

GAJUWAKA

//TRUE COPY//

JCJ/GWK

8O.S.No.434-2021, JCJ/GWK Dt.27-11-2024

Date of presentation: 10-11-2021 Date of filing: 10-11-2021

IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) AT GAJUWAKA

Present: Smt. P.Pradeepa,

Civil Judge (Junior Division) Gajuwaka

Wednesday, this the 27th day of November, 2024

ORIGINAL SUIT NO.434/2021

Between :

Sri.Palla Eswara Rao, S/o. Late Maridayya, aged 45 years, resident of D.No.8- 12-22, Gokul Nagar, Old Gajuwaka, Visakhapatnam-26, Aadhar No. 58n 64 1461 3550, Mobile No.9849367675.

........ Plaintiff

A n d:

1.Sri. Pinninti Gurunaidu, S/o. Venkati, aged 37 years, resident of D.No.13- 13-5, Sanjeevagiri Colony, Gajuwaka Mandalam, Visakhapatnam-26, Aadhar No.4060 8880 4984 and Mobile number not known to the Plaintiff.

2.Smt. Pinninti Lakshmi, W/o. Pinninti Gurunaidu, aged 31 years, resident of D.No.13-13-5, Sanjeevagiri Colony, Gajuwaka Mandalam, Visakhapatnam-26, Aadhar No.4209 4938 2305 & Mobile number not known to the Plaintiff. … Defendants

This suit is filed by the plaintiff against the defendants to recover a sum of Rs.19,40,400/-(Rupees Nineteen lakhs Forty Thousand and Four Hundred Only) being principal and interest due on a suit promissory note, dated 03-06-2021, with subsequent interest and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.19,40,000/-(Rupees Nineteen Lakhs Forty Thousand Only)and a Court fee of Rs.21,296/- (Rupees Twenty One Thousand Two Hundred Ninety Six Only) is paid under section 20, Art-1 (b) & (c) of Sch-I of A.P.C.F and S.V.Act, vide challan No.AA336742, dt.06-11-2021, of Andhra Bank, Gajuwaka Branch, Visakhapatnam.

9O.S.No.434-2021, JCJ/GWK Dt.27-11-2024 This Original suit coming on 11.09.2024for final hearing before me in the presence of Sri.D.V.Rama Rao, Advocate for Plaintiff and of Sri.K.V.Ramana, Advocate for the defendant and the matter having stood over for consideration till this day, this Court doth Order; and

D E C R E E

1. that the defendants do pay to the plaintiff a sum of Rs.19,40,400/- (Rupees Nineteen lakhs Forty Thousand Four Hundred Only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit i.e.,10-11-2021, till the date of decree i.e., 27-11-2024 and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs.18,00,000/- (Rupees Eighteen Lakhs Only); and

2.that the defendants do also pay to the plaintiff a sum of Rs.81,922/- (Rupees Eighty One Thousand Nine Hundred Twenty Two Only) towards costs of the suit. Given under my hand and the seal of the Court, this the 27th day of November, 2024, xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE (JUNIOR DIVISION)

GAJUWAKA

MEMORANDUM OF COSTS

FOR PLAINTIFF FOR DEFENDANT

No costs memo filed

Rs.Ps.

Stamp on Vakalat: 2-00

Stamp on plaint: 21,296-00

Stamp on Process: 94-00

Advocate Fee: 59,900-00 ----------------

Costs allowed: 81,922-00 ---------------- xxx,Sd/-P.PRADEEPA,

CIVIL JUDGE (JUNIOR DIVISION)

GAJUWAKA

//TRUE COPY//

JCJ/GWK