P.Santhi

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

Present:- Smt. P. SANTHI,

Principal Junior Civil Judge, Sattenapalli.

Wednesday, the 24 th day of June, 2020.

O.S.No.179/2015

Between:

Pulivarthi Vijaya Lakshmi @ Lakshmi W/o. Venkateswarlu, Hindu, aged about 49 years, cultivation R/o. Andukur Road, Krosuru village and Mandal, Guntur District, Sattenapalli D.M.C. … Plaintiff.

And:

1. Chilaka Eswara Rao S/o. late Samel John, 66 years,

2. Chilaka Krishna S/o. late Samel John, 43 years,

3. Chilaka Sambasiva Rao S/o. late Samel John, 66 years,

4. Chilaka Mallikharjuna Rao S/o. late Samel John , 66 years, All are Hindus, cultivation R/o. Andukur Road, Krosuru village and Mandal, Guntur District, Sattenapalli JCJC. … Defendants.

This suit is coming before me for final hearing on 22.2.2020 in the presence of Sri. Pendem Babu Rao, Advocate for plaintiff and of Sri. M. Anil Kumar, Advocate for D1 and D2, D3 & D4 are remained exparte, having heard and after perusing the material on record, this court delivered the following:-

JUDGMENT

This is a suit filed by the plaintiff seeking the relief of Partition of the suit schedule property into five equal shares and to allot one such share to plaintiff by good and bad quality & metes and bounds and to deliver separate possession to the plaintiff and for costs.

2) Pleadings in the plaint are in brief: The plaintiff is the sister of the defendants no.1 to 4. Originally the suit schedule property was self acquired property of the father of the plaintiff and defendants by name Samuel John.

During the life time of Samuel John he managed the plaint schedule property as kartha of the Hindu joint family till his death. He died intestate about 12 years back leaving behind him the plaintiff and defendants as his sole legal heirs. During his life time he did not execute any document relating to the plaint schedule property to anybody. The mother of the plaintiff and defendants no1 to 4 also died prior to the death of her husband Samuel

John. The plaintiff further submitted that after the death of their father the 2 plaintiff and defendants orally agreed for partition of the plaint schedule property into 5 equal shares and to allot one such share to the plaintiff. Since then the defendants are managing the plaint schedule property and gave the fruits of the share of the plaintiff on every year. Since two years the plaintiff demanded the defendants for partition of the plaint schedule property into 5 equal shares and to allot her 1/5th share to her with separate possession. But the defendants postponed the partition of the plaint schedule property on some pretext or other till today. It is submitted that recently due to bifurcation of Andhra and Telangana states the land rates were abnormally increased. Due to that since two months all the defendants colluded with each other to avoid the share of the plaintiff and are trying to alienate the plaint schedule property to the third parties without consent of the plaintiff.

When the plaintiff questioned about the acts of the defendants and demanded for partition of the plaint schedule property but the defendants did not cooperate for partition of the plaint schedule property. The plaintiff also gave protest petition on 15.12.2014 to the sub-registrar, Krosuru to stop the registration in case the defendants are making efforts to alienate the suit schedule property. The Sub-Registrar, Krosuru also recorded the same and gave an acknowledgment with an advice to the plaintiff to approach the court for partition. Hence, the plaintiff is constrained to file this suit for partition of the plaint schedule property with separate possession. Hence, the suit.

3) Summons was served on defendants. Defendant no.2 filed separate written statement. D1, D3, D4 were remained exparte.

4)Pleadings of Defendant no.2 in brief : The plaintiff is sister of the defendants no.1 to 4. It is true that the schedule property originally belongs to the father of the plaintiff and defendants by name Chilaka Samuel John who got the same under gift deed. Since from the date of gift deed the said

Samuel John is in exclusive possession and enjoyment over the schedule property. The revenue authorities also recognized the possession and enjoyment of the Samuel John relating to the schedule property and issued pattadar pass book and title deed in his name. The Chilaka Samuel John performed the marriages of the plaintiff and defendants by expending amounts. At the time of the marriage of the plaintiff, Chilaka Samuel John gave some property to the plaintiff by way of cash and gold ornaments towards her share and she relinquished her right over the joint family property orally and plaintiff is residing with her husband separately. Later the 3 said Samuel John was died intestate. After death of Samuel John the defendants no.1 to 4 jointly cultivated the schedule property. In the year 2006 defendants no.1 to 4 partitioned the plaint schedule property into equal shares and the defendants also executed partition list between them. As per the partition list, each defendant has got Ac.0.40 cents of land in the schedule property towards their share. At the time of the partition of the schedule property the defendants informed to the plaintiff about partition and execution of the partition list by them and the plaintiff agreed that she has no objection for partition of the schedule property by the defendants and she did not claim or raise any objection. Since from the date of partition,

D1 to D4 are enjoying their respective shares. Even after 2006 also plaintiff never demanded the defendants for partition of the schedule property as she already relinquished her right by taking her share at the time of her marriage. There is no joint and constructive possession over the schedule property with plaintiff and defendants no.1 to 4 since 2006. The defendants no.1 to 4 are enjoying their respective shares. Subsequently, the 4th defendant sold away his share of Ac.0.40 cents to D2 under registered sale deed dt.29.11.2008 for valuable consideration of Rs.30,000/- and delivered possession to D2. Since then D2 is in exclusive possession over the property and his share of property in total ac.0.80 cents. The defendant mortgaged the property an extent of Ac.0.40 cents which was purchased by him from

D4 to one Kanjula Satyanarayana Reddy and executed registered mortgage deed in favour of the Kanjula Sathanayarana Reddy. Subsequently, the revenue authorities issued pattadar passbook and title deed in favour of D2 relating to the remaining property i.e. Ac.1.20 cents with the consent of defendants no.1 to 3 and Revenue authorities also mutated the name of the

D2 in the revenue records. Later, this defendant sold away the above property to Bhupathiraju Satyanarayana Raju with the consent of the D1 and

D3 for valuable consideration of Rs.3,15,000/- and executed registered sale deed in his favour and also delivered the possession of the same to

Satyanarayana Raju. Since then, the Satyanarayana Raju is in exclusive possession and enjoyment of the Ac.1.20 cents out of the schedule property.

The plaintiff is well aware the above transaction and kept quiet and now got filed this suit due to recent hike of land prices with a view to cause wrongful loss to this defendant. The plaintiff has no cause of action to file the suit and plaintiff paid fixed court fee as the schedule property is in joint and constructive possession of the plaintiff and defendants. In fact there is no joint and constructive possession of the schedule property by plaintiff and 4 defendants as this defendant sold the Ac1.20 cents to Bhupathiraju

Satyanarayna Raju out of the schedule property and the remaining Ac.0.40 cents is in exclusive possession and enjoyment of this defendant. The plaintiff obtained some property by way of gold and cash towards her share at the time of her marriage and so the plaintiff is not entitled to seek partition of the schedule property. At last, he sought to dismiss the suit with costs.

5) After hearing the learned counsels for respective parties, after perusing the material on record, the following issues are settled for trial by my predecessor.

ISSUES:

1.Whether the plaintiff has knowledge about the partition of suit schedule property into four equal shares between D1 to D4 under partition list in the year 2006?

2.Whether plaintiff has orally relinquished her share in the suit schedule property?

3.Whether the plaintiff is not in joint and constructive possession of the suit schedule property since 2006?

4.Whether plaintiff has knowledge about the execution of registered sale deed dt.26.6.2015 by D2 with the consent of D1, D3 and D4 in favour of one

D. Satyanarayana Raju for Ac.1.20 cents out of the plaint schedule property by receiving consideration of Rs.3,15,000/-?

5.Whether the plaintiff is entitled for the relief of partition of suit schedule property into 5 equal shares and for allotment of one such share to her?

6.To what relief ?

6) a) To prove her case, plaintiff herself examined as P.W1 and two third parties as P.W2 and PW3 apart from exhibiting Ex.A1 to A3 namely proceedings of Sub-Registrar, Krosuru dt.15.12.2014; Account D receipt 5

No.22 dt.15.12.2014 issued by Sub-Registrar, Krosuru and Certified copy of gift deed dt.29.4.1968.

b) On the other hand, on behalf of the defendants, D2 himself examined as DW1 and got marked Ex.B1 to B6 namely Title deed, Pattadar pass book of D2; registered gift deed executed by Chilaka Tirupathamma

W/o. Gangaiah in favour of her son/Chilaka Samuel, S/o. Gangaiah dt.29.4.1968; Mee-seva copy of registered sale deed executed by Chilaka

Mallikharjuna Rao/D4 in favour of D2 dt.29.11.2008; Mee-seva copy of registered mortgage deed executed by D2 in favour of Kandula

Satyanarayana Reddy dt.8.9.2009 and Mee-seva copy of registered sale deed in favour of Bhupathiraju Satyanaranayana Raju dt.26.6.2015.

7) Heard. Perused the material available on record.

8) Now, the points for determination are:

9) ISSUES No.1 & 2 a)It is the case of the plaintiff that she has 1/5th share in the plaint schedule property. As defendants failed to co-operate for partition and sold the property to one D. Satyanarayana Raju, without her consent, hence she was constrained to file the suit.

b) Per contra, it is pleaded by D2 that the suit schedule property was already partitioned and plaintiff has approached this Hon'ble Court by sup- pressing the fact that she already got her share from her father during her marriage and she relinquished her right over the property orally. Thus, D2 prays to dismiss the suit with exemplary costs.

c) Plaintiff to substantiate her pleading got examined P.Ws.1 to 3 and exhibited Exs.A1 to A3. Per contra, D2 got examined as D.W.1 and exhibited

Exs.B1 to B6.

d) P.W.1 filed her chief-examination affidavit by reiterating the aver- ments of the plaint by stating that she has 1/5th share in the plaint schedule properties and she filed the suit seeking the relief of Partition, as defendants failed to co-operate for partition. During the cross-examination of P.W.1 by the learned counsel for defendant, P.W.1 stated that her father possess

Ac.1.62 cents of land in Survey No 599/5, her mother possess Ac.1.20 cents 6 of land under B-form patta and also a house. She further admitted that she did not file the suit for partition for the property of Ac. 1.20 cents and also the house and she is claiming partition only in the suit schedule prop- erty. PW2 and 3 also deposed that PW1 is claiming partition of the property only in the plaint schedule property but not in the remaining property. PW2 and 3 deposed in their cross examination that the defendants shared Ac.1.62 cents into equal shares and they are in possession of the same till now. PW1 in her cross examination deposed that D4 sold his share to D2 and D2 sold an extent of Ac 1.20 cents to one Bhupathiraju Satyanarayana. PW1 admit- ted in her cross examination that she do not know about the partition that was done among the defendants. PW1 in her cross examination submitted that the defendants are in possession of the suit schedule property till now which shows that she has knowledge about the partition of the suit schedule property.

e)It is an admitted fact that the suit schedule property was partitioned orally among the defendants equally after the demise of the father of the plaintiff. PW2 and PW3 also deposed the same and if plaintiff has any objec- tion, she would have raised it when the partition was made among the de- fendants, but she did not do so. Moreover, according to the evidence of PW1 to 3 the property was in the possession of the defendants after the demise of their father.

Accordingly this issue is answered in favour of the defendants

and against the plaintiff.

10.ISSUE NO 3:a) It is the case of the plaintiff that she is in joint and constructive possession and enjoyment of the schedule property even after demise of her father Samuel. On the other hand the defendants contended that after demise of the their father, defendants partitioned the joint family properties orally in the year 2006 under partition list. The plaintiff relin- quished her share as she got the property at the time of her marriage.

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b) Plaintiff in her cross examination admitted that at present the defen- dants are in possession of the suit schedule property. PW2 admitted at one point that the defendants are in possession of the suit schedule property and at other point deposed that, at present one Bhupathiraju Sathyanarayana is in possession of the suit schedule property. PW3 deposed that the defen- dants are in possession of the suit schedule property and they did not sell the property to One Bhupathiraju. This creates lot of inconsistency in the statements of the witnesses. Hence this court can not rely on the statements of the witnesses. According to the evidence of PW1, no where in her evi- dence she deposed that she is in possession of the suit schedule property.

This clearly establishes that the plaintiff is not in possession of the suit schedule property since 2006.

Accordingly this issue is answered in favour of the defendants

and against the plaintiff.

11)ISSUE NO 4: a)As per the evidence of PW1, D4 sold his share of the property to D2 and he is possession of the same and later D2 sold the property to one Bhupathi raju Satyanarayana Raju. She further submitted that she came to know about the sale of the property through farmers and she approached the said Bhupathiraju Satyanarayana Raju and informed him that she has got right over schedule property and requested him not to pur- chase the property and she obtained consent from him that he would not ob- tain register sale deed of the property without informing her. Later she also informed sub registrar and issued Ex A1 and A2.

b)When plaintiff has knowledge about the partition of the suit schedule property among the defendants, she did not raise any objection when Ex B4 was executed on 29.11.2008, so also Ex B5 on 26.6.2015. Moreover she ad- mitted in her cross-examination that she met one Bhupathiraju Satya- narayana after she came to know about the sale of the suit schedule prop- erty. When she has the knowledge about the suit schedule property and also 8 about the person who is going to purchase the property, why the said Bhu- pathiraju is not impleaded as a party to the suit is not properly explained.

PW3 deposed that the suit schedule property was not purchased by the said

Bhupathiraju Satyanarayana, but she did not produce any evidence with re- gard to the same. The oral evidence of PW3 is not supported by any docu- mentary evidence. Ex.B5 establishes that the property was purchased by said Bhupathiraju Satyanarayana Raju on 26.6.2015.

c)Moreover PW1 in her cross examination admitted that revenue au- thorities issued Ex B1 and Ex B2 in the name of the defendants after the demise of her father and again she deposed that she do not know whether the revenue department issued pattadar passbook in the name of the defen- dants. When Ex B1 and B2 were confronted to her again she admitted that they were issued in the name of the defendants. This creates lot of ambiguity in the evidence of PW1.

d)PW3, who is the wife of D1 in her evidence deposed that D4 sold his property and their property without their consent to DW1 and hence she came to the court to depose her evidence on behalf of the plaintiff. After go- ing through the evidence of PW3, it reveals that there are disputes between

DW1 and their family with regard to the property. As we all know, previous disputes is a double edged weapon, which can be used in any manner.

e)PW1 also deposed that her father has Ac 1.62 cents of land and her mother has Ac 1.20 cents of land and a house. The present suit was filed only on the property of the father. She did not include all the properties in the suit for partition. The reason why non inclusion of the properties is best known to the plaintiff. Hence the suit is bad for non joinder of the party who purchased the property and non inclusion of all the properties.

Accordingly the issue is answered infavour of the defendants

and against the plaintiff.

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11. ISSUE No. 5: From the above said discussion it can be held that plaintiff has utterly failed to prove her pleadings. Plaintiff has miserably failed to prove that the suit schedule property was in joint and constructive possession of plaintiff and defendants and thus she has share in the suit schedule property.

Accordingly, Issue No.5 is determined in favour of defendants and against the plaintiff.

12) ISSUE No.6 :- In view of findings in issue No.1 to 5, the suit is liable to be dismissed without costs. Costs are not awarded as plaintiff and defendants are same family .

13) RESULT: In the result, the suit is dismissed without costs in the interests of justice.

Typed to my dictation, Corrected and pronounced by me the operative portion of the judgment in the open court, this the 24thday of June- 2020

Principal Junior Civil Judge,

Sattenapalli.

APPENDIX OF EVIDENCE :-

WITNESSES EXAMINED:-

For Plaintiffs : For Defendants:

P.W.1:Pulivarthi Vijaya Lakshmi DW1:Chilaka Krishna

P.W2:Chilaka Yohan

P.W3:Chilaka Mahalakshmi

DOCUMENTS MARKED :-

For Plaintiffs :-

Ex.A1: Proceedings of Sub-Registrar, Krosuru dt.15.12.2014;

Ex.A2: Account D receipt No.22 dt.15.12.2014 issued by Sub-Registrar ,

Krosuru

Ex.A3: Certified copy of gift deed dt.29.4.1968.

For Defendants:- 10

Ex.B1: Title deed,

Ex.B2: Pattadar pass book of D2;

Ex.B3: Registered gift deed executed by Chilaka Tirupathamma W/o.

Gangaiah in favour of her son/Chilaka Samuel, S/o. Gangaiah dt.29.4.1968

Ex.B4:Mee-seva copy of registered sale deed executed by Chilaka

Mallikharjuna Rao /D4 in favour of D2 dt.29.11.2008 ;

Ex.B5:Mee-seva copy of registered mortgage deed executed by D2 in favour of Kandula Satyanarayana Reddy dt.8.9.2009

Ex.B6:Mee-seva copy of registered sale deed in favour of Bhupathiraju

Satyanaranayana Raju dt.26.6.2015.

P.J.C.J.,

Sattenapalli.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

Present: Smt. P. SANTHI,

Principal Junior Civil Judge, Sattenapalli.

Tuesday, the 23 rd day of June, 2020.

ORIGINAL SUIT No.328/2018

Between: Kambhampati Mariaya Dasu S/o. Aseervadam, Hindu, business, aged about 40 years, R/o. Sastry Nagar, Vaddavalli, Sattenapalli Town and Mandal, Guntur District, Sattenapalli D.M.C. … Plaintiff.

And

1. Shaik Ayesha W/o. late Abdul Saleem, Muslim, aged about 34 years, house wife,

2. Shaik Cherri Thahera Sulthana Bi @ Pandu D/o. late Abdul Saleem,

Hindu, aged about 14 years, Student

3. Shaik Shaina Bi D/o. late Abdul Saleem, Muslim, aged about 6 years, student

D2 and D3 being minors rep. by their natural guardian mother Shaik

Ayesha W/o. late Abdul Saleem,

All are resident of Vidya Nagar, 1st line, Amarvathi Road, opp. Jangala

Nagarthamma house, Korusur village and Mandal , Guntur District,

Sattenapalli D.M.C.

… Defendants.

This suit is coming before me for final hearing on 14.2.2020 in the presence of the learned counsel for the plaintiff Sri. J. Seshaiah and the learned counsel for defendants Sri.Sk. Jani Khajavali and having heard and after perusing the material on record, this court delivered the following:-

J UDGMENT

1.This is a suit filed by the plaintiff seeking the relief of recovery of promissory note debt of Rs.4,96,000/-being principal and interest due on the suit promissory note dt.10.12.2017 executed by one Shaik Abdul Saleem (husband of D1 and father of D2 and D3) for Rs.4,00,000/- in his favour, agreeing to repay the same with interest @24% p.a. and subsequent interest and for costs of the suit.

2. Pleadings of the Plaintiff in brief is that:- Plaintiff pleads that, one Shaik Abdul Saleem (husband of D1 and father of D2 and D3) borrowed an amount of Rs.4,00,000/- from him on 10.12.2017 for his family expenses at Sattenapalli Town. On the same date, he executed Ex.A1-suit promissory note in his favour agreeing to repay the same with interest @ 24% per annum either to the plaintiff or his order on demand. Subsequently, inspite of repeated oral demands made by the plaintiff personally and through mediators, the said Shaik Abdul Saleem failed to discharge the debt and postponing the same from time to time. The said Shaik Saleem is working as school writer at Brugaband village. Subsequently, the said Shaik Abdul

Saleem died intestate on 2.11.2018 leaving the defendants as his legal heirs.

Later the plaintiff approached the defendants and demanded them to discharge the promissory note amount but the defendants did not choose to repay the promissory note amount. Later the plaintiff got issued legal notice to the defendant no.1 on 17.11.2018 demanding them to discharge the promissory note debt but the defendant no.1 received the same and kept quiet. Hence the suit.

3) Summons was served on defendants. They filed written statement by opposing the suit claim.

4) Pleadings of defendants in brief: Apart from denying the averments in plaint, they plead that, the plaintiff never demanded either personally or through mediators. The defendants are not in possession of any estate of the deceased. The plaintiff is not entitled decree against the defendants as they neither borrowed the amount nor any estate of the deceased in the hands of the defendants. The names of the defendants were incorrectly mentioned in the plaint. The real names of defendants are 1.

Shaik Bee bi Ayesha 2. Shaik Chisty Taharen Khatun and 3. Shaik Hassa

Tabassum. Hence the suit is liable to be dismissed. They further pleaded that husband of D1 never borrowed any amount on 10.12.2017 or any other date.

Due to misunderstandings between the husband of the D1 and plaintiff, the plaintiff hatched a plan to harass the husband of the D1, the plaintiff forged the signature of the husband of the D1 and created the suit promissory note.

After demise of the husband of the D1, the plaintiff filed this unrighteous suit only to gain wrongfully from the defendants and hence the suit is liable to dismiss with costs..

5) Basing on the rival contentions of the parties, the following issues are settled for trial.

ISSUES:

1. Whether the suit promissory note dt.10.12.2017 for Rs.4,00,000/- is executed by one Shaik Abdul Saleem (husband of D1 and father of D2 and

D3) is true, valid and binding on the defendants?

2. Whether the suit promissory note is forged one?

3. Whether the plaintiff is entitled for recovery of suit amount as prayed for? And

4. What relief?

6) a) Plaintiff to substantiate his case, got examined himself as P.W.1, the scribe and attestor of Ex.A1 as P.W2 & PW3 apart from exhibiting the documents Ex.A1 to Ex.A3 namely Ex.A1 - promissory note dt.10.12.2017 for

Rs.4,00,000/- executed by Shaik Abdul Saleem in favour of plaintiff, Office copy of legal notice dt.17.11.2018; Postal receipts dt.17.11.2018.

b) On behalf of defendants, defendant no.1 got examined herself as

D.W.1 and one third party as DW2. No documents were marked on behalf of defendants.

7) Heard on both sides. Perused the material on record.

8) Now, the points for the determination are:-

9) ISSUES NO.1 & 2 : a) It is case of the plaintiff that, one Shaik

Abdul Saleem (husband of D1 and father of D2 and D3) borrowed an amount of Rs.4,00,000/- on 10.12.2017 from him and executed Ex.A1 promissory note in his favour. As the said Shaik Abdul Saleem died without discharging the suit promissory note amount, he was constrained to file the suit against the defendants who are the legal heirs of deceased Shaik Abdul Saleem.

b) To prove the execution of Ex.A1 suit promissory note in favour of the plaintiff, plaintiff got examined herself as PW1, scribe and attestor of Ex.A1 as PW2 and PW3. PW.1 filed his chief-examination affidavit stating that the deceased Shaik Abdul Saleem borrowed suit promissory note amount from him under Ex.A1/pronote. He has also stated about execution of Ex.A1 suit promissory note at Sattenapalli town in his favour by deceased Sk. Abdul

Saleem. At the time of execution of Ex.A1 one Avula Ratna Kumari, PW2 and

PW3 were present. At the request of the defendant , PW3 scribed Ex.A1- promissory note. PW1 further stated that after death of Shaik Abdul Saleem, he demanded the defendants personally and through legal notice to discharge the promissory note amount but they did not discharge the same.

c) PW-2 stated in her chief-examination affidavit about the fact of borrowing amount by deceased Shaik Abdul Saleem from the plaintiff under

Ex.A1 and she attested as second witness in Ex.A1. PW2 further stated that that, at the time of execution of Ex.A1, herself, PW1 & P.W3, and one Ratna kumar were present.

d) PW-3 stated in his chief-examination affidavit about the fact of borrowing amount by deceased Shaik Abdul Saleem from the plaintiff under

Ex.A1 and execution of the suit promissory note Ex.A-1 by the deceased

Abdul Saleem infavour of the plaintiff at the house of the plaintiff. PW3 further deposed that, he scribed Ex.A-1/pronote at the request of deceased

Sk. Adbul Saleem. Thus, PW.'s 1 to 3 reiterated the plaint pleadings relating to borrowing of amounts by the deceased Abdul Saleem and execution of suit promissory note in favour of the plaintiff by Sk. Abdul Saleem. Though,

P.W's.1 to 3 were subjected to cross examination, nothing material was elicited to disprove Ex.A1/pronote suit.

e) PW1 deposed in his cross-examination that he lend suit promissory note amount to the husband of D1 on 10.12.2017 at about 6.00 p.m. and at the time of lending amount, the attestors, scribe were present. On the date of lending amount, he had Rs.6,00,000/- and gave Rs.4,00,000/- to the husband of the D1. He acquired through business. The learned counsel for the defendants put suggestion to PW1 that he never lend amount to the husband of the D1 and Ex.A1 was created one and never issued legal notice but in vain as he denied the same. The learned counsel for the defendants put suggestion to PW1 that he has no capacity to lend such huge amount to the defendant but in vain as denied the same. Moreover he voluntarily deposed that he had an amount of Rs.6,00,000/- at the time of lending amount to the deceased Sk. Abdul Saleem and the said amount was acquired through business. PW1 deposed in his evidence that he know the

D1 prior to two years of lending amount and he also informed D1 about lending amount to her husband. The counsel or the defendants put suggestion to PW1 that PW1 and his brother used to drink along with the husband of the defendant no.1 and used to spend money from his cards but in vain as he denied the same.

f) During cross-examination of PW2 , he deposed that husband of D1 borrowed an amount of Rs.4,00,000/- from the plaintiff at plaintiff’s residence at about 6-00 to 6-30 p.m. and at that time, herself, Mariyadasu and Ratnakumari were present and Ex.A1 was scribed in the year 2017. The learned counsel for the defendant put suggestion that she does not know anything about the case but in vain as she denied he same.

g) PW3 who is scribe of Ex.A1 deposed in his cross-examination that the deceased Abdul Saleem worked as writer in another school and he was well acquainted with the deceased Abdul Saleem. There are no disputes between himself and the deceased Abdul Saleem who borrowed amount from the plaintiff. He was present at the time of executing Ex.A1. He further deposed in his cross-examination that the deceased Abdul Saleem borrowed the suit amount from the plaintiff to clear the debts spent for his family expenses. He know D1 to D3. On 10.12.2017, the deceased Abdul Saleem borrowed amount from the plaintiff at the residence of plaintiff around 6-00 p.m. to 6.30 p.m. Himself, plaintiff, PW2 and Ratna Kumari were present at the time of executing Ex.A1. The denomination of promissory note amount was

Rs.2,000/- notes. The learned counsel for the defendants put suggestion to

PW3 that he has habit of the lending amount from his co-employees by taking commission but in vain as he denied the same.

h) Thus, even during the cross-examination of P.W's.1 to 3 the fact of borrowing amount by husband of D1 from the plaintiff remained unimpeached. As plaintiff has discharged his initial burden of proving the execution of Ex.A1 suit promissory note in her favour, the burden shifts to the defendants to disprove the same.

i) Defendant no.1 got examined herself as D.W.1. She filed her chief- examination affidavit reiterating the contents of written statement stating that, plaintiff never demanded her either personally or through mediators.

Defendants did not acquire any estate of deceased Sk. Abdul Saleem. The plaintiff wrongly mentioned the names of the defendants in the plaint. Due to misunderstandings between her husband and plaintiff, plaintiff filed false suit against the defendants by forging the signature of her husband. Ex.A1 suit promissory note is forged and her husband never executed suit promissory note in favour of plaintiff. Thus, DW1 denies the execution of Ex.A1 suit promissory note by husband of D1 in favour of the plaintiff.

j) On perusal of record, though the defendants pleads that the plaintiff did not demand either personally or though mediators but during cross- examination of DW1, she deposed that plaintiff issued legal notice to her but she did not give any reply notice. DW1 further deposed that she does not know about the disputes between PW1 and her husband Sk. Abdul Saleem but she pleaded in the written statement that due to misunderstandings between her husband and Plaintiff, suit was filed against the defendant which shows defendants took false plea. Though the defendants pleads that suit promissory note was fabricated by the plaintiff by forging signatures of deceased Sk. Abdul Saleem but DW1 admitted in her cross-examination that she did not file any criminal case against the plaintiff for forging her husband’s signature in Ex.A1. Even the defendants did not file petition under sec.45 of Indian Evidence Act to send the document for expert opinion though the deceased Sk. Abdul Saleem was an employee whom signatures were available in the office. The defendants pleads in the written statement that the suit is liable to be dismissed as the names of the defendants were wrongly mentioned in the plaint. But DW1 admitted in her evidence that she did not file any documentary proof with regard to the change in the names of her children, which were incorrectly mentioned in the plaint. Moreover DW1 admitted that there are no disputes either with the scribe & attestors or the plaintiff, but the learned counsel for the defendants did not put suggestion to

PW1 with regard to necessity of plaintiff to file false suit against the defendants.

The defendants to prove their case, got examined one third party as

DW2. DW2 filed his chief examination affidavit by reiterating the contents of the written statement stating that husband of the D1 never borrowed any amount from the plaintiff. The defendants are not in possession of any of the properties left by the deceased. The plaintiff and scribe of Ex.A1 forged the signature of the deceased Sk. Abdul Saleem. During cross-examination, DW2 deposed that the bike of husband of the D1 is with him. About two years back, the husband of the deceased informed that he do not have any debts.

The evidence of DW2 is not useful to disprove the Ex.A1 as the defendants utterly failed to prove the suit promissory note is fabricated one by forging signature of deceased Sk. Abdul Saleem by adducing documentary evidence.

k) Be that as it is, this is a suit filed basing on promissory note executed by husband of D1, hence, defendants are personal liable to discharge the same. The property which is lying in their hands, if any of deceased Sk. Abdul

Saleem will be liable for the suit amount.

l) In view of the aforesaid reasons, this court holds that, deceased Sk.

Abdul Saleem executed Ex.A1 suit promissory note in favour of the plaintiff.

Accordingly, Issues Nos.1 and 2 are determined in favour of the

plaintiff and against defendants.

10) ISSUE No.3: In view of the findings in Issues Nos.1 and 2, this

Court holds that the plaintiff is entitled for the suit relief against the estate of deceased Sk. Abdul Saleem.

Accordingly, Issue No-3 is determined in favour of the

plaintiff.

11) ISSUE No.4: In view of findings in Issues No.1 & 2, 3 this Court holds that, the suit is to be decreed with costs 12) RESULT :- In the result, the suit is decreed with costs in the interests of justice against the estate of deceased Shaik Abdul Saleem for a sum of Rs.4,96,000/- together with interest at the rate of 12% per annum from the date of the filing of the Suit, till the date of the decree and thereafter at6% per annum on the principal sum of Rs.4,00,000/- from the date of the decree, till the date of realization of the decree.The plaintiff has to recover or realize the above said amounts from the estate of the deceased

Shaik Abdul Saleem, if any lying in the hands of defendants.

Typed my to Dictation by the Personal Assistant, corrected and

pronounced by me the operative portion of the Judgment in the open court,

this the 23rd day of June, 2020.

Principal Junior Civil Judge,

Sattenapalli.

APPENDIX OF EVIDENCE :-

WITNESSES EXAMINED:- For Plaintiff :- P.W.1: Khambhampati Mariya Das P.W.2: Munipalli Sujatha P.W.3: Turaka Dasu

For Defendants:- DW1: Shaik Aayesha DW2: Mallala Tana Vijaya Kumar DOCUMENTS MARKED :- For Plaintiff :- Ex.A1 – Promissory note executed by Sk. Abdul Saleem dt. 10.12.2017 for an amount of Rs.4,00,000/-

Ex.A2 - Office copy of registered notice dt.17.11.2018

Ex.A3 – Postal receipt dt.17.11.2018

For Defendants:- - NIL -

P.J.C.J., Sattenapalli.

1

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

PRESENT : Smt P. SANTHI

II Addl. Junior Civil Judge, Sattenapalli FAC II Addl. Junior Civil Judge, Narasaraopet

Dated this the 1st day of May, 2019

C.C.12/2019

Between :

State: Proh. & Excise, Inspector Sattenapalli. (Cr.No.87/18) … COMPLAINANT

Vs.

Meda Koteswaramma, W/o Venkateswarlu, 50 years, Caste – Erukala, R/o Vemuluripadu Village,

Phirangipuram Mandal. ... ACCUSED

This case is coming on before me for final hearing in the presence of learned APP for the State and Sri S.Srinivasa Rao, counsel for the accused and after perusing the case records, hearing upon the arguments on both sides and having stood over for consideration till this date, this Court has delivered the following :

J U D G M E N T

1.Accused stand charge sheeted by the Proh. & Excise

Inspector, Sattenapalli, for offence punishable under Section 34 (a) of A.P.

Excise Act.

2.In brief, it is the case of the prosecution, that on 10-10-2018,

Lws.1 and 2 along with other staff, while conducting raids for Proh. and Excise offences, in the Government hired vehicle bearing ResgistrationNo.AP03 TV 5629 TATA SUMO, reached at the at the Irrigation Canal bridge, in the way to

Phirangipuram Village and Mandal, at about 07.00 am and noticed the accused, standing there by holding a black polythene bag, in her right hand and on seeing the Excise Officials in uniform, the accused got perturbed and tried to skulk away. Having observed the same, Lw.2 on suspicion got detained the accused, with the help of staff and on enquiry, the accused 2 admitted possession of Liquor bottles, in the black polythene bag, held by her.

In order to verify the said cover, in the presence of mediators, Lw.2 sent Lw.1 to bring mediators. After 30 minutes Lw.1 returned and reported that the village officials were not available then in the village and that the village elders refused to some forward to act as mediators in Excise cases. Lw.2 decided to proceed under special report and on verification of the black polythene bag, in possession of accused, found it containing 10 – 180 ml. Old

Tavern Fine Whisky bottles. On enquiry the accused furnished her name and address particulars. On further enquiry, the accused confessed that she purchased the said liquor bottles at the wine shop with a view to sell them in her village at higher rate and the accused replied that she was not possessed any bill, or permit or license pertaining to the said liquor bottles. Lw.2 had taken one bottle, as the samples for analysis, kept the remaining 9 - bottles in the same bag, tied the same and affixed identity slips, to the sample bottle and the bag, seized the same and arrested the accused and booked a case against the accused.

Basing on the special report, this case in Cr.No.87/2018 under

Section 34 (a) of A.P. Excise Act was registered by Lw.2 and produced the accused before this court, then the seized sample was sent to Chemical

Examiner for analysis and report and upon receiving the analysis report and on completion of investigation, Lw.3 laid charge sheet against the accused under Section 34 (a) of A.P. Excise Act.

3.The charge sheet was taken on file against accused under Section 34

(a) of A.P. Excise Act.

4.On appearance of the accused, copies of the charge sheet and other documents were furnished to her under Section 207 Cr.P.C. She was examined under Section 239 Cr.P.C. A Charge under Section 34 (a) of A.P.

Excise Act was framed against her, read over and explained to her. She 3 denied the charge and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.W.1 and Pw.2 examined. Exs.P1 to P5 and Mo.1 got marked.

6.After closure of prosecution evidence, accused was examined under

Section 313 Cr.P.C with the incriminating material available on record. She denied the prosecution evidence and reported no defence evidence and no documents were marked on behalf of the defence.

7.Heard both sides and perused the case record.

8. Now the point for determination is whether the prosecution proved the guilt of accused for the offence under Section 34 (a) of A.P. Excise Act beyond reasonable doubt ?

9. POINT :

PW.1 – B.Subhashini, Constable deposed that on 10-10-2018 at about 07.00 am she along with Lw.2 and 3 proceeded to conduct petrolling of Proh&

Excise offences and they reached Irrigation canal bridge, the road that leads from Vemuluripadu to Phirangipuram and they found accused with black polythene bag and on seeing them in uniform accused tried to skulk away and

Lw.2 detained accused with the help of other staff and on enquiry accused confessed that accused in possession of liquor bottles and Lw.2 deputed her for securing mediators but no body came forward to act as mediators as VRO and VRA were not available later Lw.2 decided to scribe special report and opened the bag found 10 – 180 ml Old Tavern Fine Whisky bottles containing full of liquor Lw.2 had drawn one bottle as sample for chemical analysis and seized the remaining property under the cover of special report and affixed identity slips to the sample and seized the property. Ex.P1 is Special Report.

Later Lw.2 arrested accused and brought to the police station. Later they return from scene of offence along with accused and case property.

10. PW.2 –B.Kameswara Rao, P & E Inspector deposed that on 4 10-10-2018 at about 07.00 himself, Pw.1 along with other staff produced the accused along with case property seized from the possession along with with special report. Basing on which he registered a case in Cr.No.87/2018

U/s.34(a) of A.P.Excise Act 1968 under Ex.P2 and he submitted original FIR to this court and copies to all concerned and produced the accused before this court and he sent sample to Government chemical examiner P & E

Labouratory, Guntur who reported under Ex.P3 that he forwarded the same for chemical analysis, Ex.P4 he received the proposal the confiscation property and orders awaited, Ex.P5 is chemical analysis report after completion of investigation Lw.3 filed charge sheet.

11. Coming to the appreciation of evidence on record, it is the main contention of the learned defence counsel that as all the witnesses are official witnesses, their evidence shall be discarded. But, it is settled law that when only the police person has been examined, their evidence is not liable to be discarded, but it should be weighed with utmost care and caution. In such situation, it is also the duty of court to see whether there is a possible opportunity for the police officer to secure the mediators and whether the arresting police officials made any effort to secure mediators. However, when there is possible opportunity for the police officer to secure the mediators and if he fails to do so, it can be considered as a lapse on the part of the investigating agency.

12. Pw.1 deposed in her cross examination that they did not secure mediators while starting from Sattenapalli and the boundaries of the scene of offence is not mentioned in Ex.P1 and Ex.P1 was scribed is not mention and the scene of offence is a mandal head quarters and he did not issue any instruction to Pw.1 for securing mediators. Ex.P1 does not contain the boundaries of scene of offene and Lw.2 did not examine any customer at the scene of offence and the source of supply of liquor bottles is not ascertain by 5

Lw.2 and the seized bottles are similar to liquor bottles in this case are available in open market.

13. In MUDAVATH MOTHIA V/S STATE OF ANDHRA PRADESH

reported in 2002(1) ALT (Crl.) 437 AP. The Hon’ble High Court

observed in Para No.5 that: “Adverting to the same, the offence under

Section 34 of the A. P. Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, ex. P -5 panchanama is hit by Sections 25,27 of the Indian EV I DEN CE A CT, 1872 and Section 161 of Cr. P. C. The benefit if any arises due to the invalidity of the investigation only goes to the accused and once the Ex. P-5 is hit by sections 25 and 27 of the Indian Evidence act, and Section 161 of Cr. P. C.

and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the

Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr.P.C. It is not a case where the property was seized by virtue of confession made. W hen it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt. Both the courts have not looked into the evidence from proper angle. The conviction and sentence awarded is, therefore, liable to be set aside due to the illegality of the proceedings drafted. Moreover, only one sample of sachet was produced

before the court and not all the sachets seized and it is for the prosecution to

establish that all the samples of sachets seized contain I. D Liquor and it is 6 not proved”.

14. In GAJAMKERNARAYANA V/S STATE OF ANDHRA PRADESH

2005 (3) ALT Crl.(1) AP. The Hon’ble High Court observed in Para

No.5 that:

“ Here, in the case on hand, the accused was found in possession of I.D.

liquor at bypass road Rangadampally near Siddipet. The evidence of P.W. 1, the Excise Sub- Inspector, discloses that there are residential houses at a distance of 25 yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W. 1, they took the punch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of

P.W. 3, the then Excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the Excise Officials picked up punch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W. 1 nor that of P.W.

3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators.

Ex. P -1, Panchanama, also does not disclose that any effort was made by

Excise Officials to secure independent respectable inhabitants of the locality.

Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100 (4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D.

liquor. Therefore, the seizure made in this case is illegal”.

15. In such facts and circumstances of the case, when the excise officials failed to secure independent persons as mediators, though they have a possible opportunity and thus failed to follow the procedure for seizure, the court is of view that in absence of any independent evidence, it is not safe to 7 rely on the evidence of Pws.1 and 2 are i.e., the Excise officials for convicting the accused.

16. For the foregoing reasons and in the light of principles of ratio laid down by Hon’ble High Court in above case I am of the opinion that there is no convincing and satisfactory evidence to prove that accused was found in possession of liquor bottles as alleged, Ex.P1 could not be relied upon.

Though Ex.P3 discloses that the contents of M.O.1 contained the Indian alcohol, as there is no convincing evidence to prove that the contents of

M.O.1 was drawn from seized liquor bottles said to be found from the possession of accused Ex.P3 could not be relied upon. Thus, the court holds that the prosecution has failed to establish the guilt of accused for offence punishable u/Sec. 34(a) of A.P Excise Act beyond reasonable doubt and thus accused is entitled to benefit of doubt. Accordingly, the point is answered against the prosecution.

18. In the result, accused is found not guilty for the offence under

Sec.34(a) of A.P Excise Act, 1968 and she is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per Sec.437 A

Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in the open Court on this the 1st day of May, 2019.

Sd/-P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

APPENDIX OF EVIDENCE

NO. OF WITNESS EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 –B.Subhashini, Constable PW2 –B.Kameswara Rao, P & E Inspector NIL 8

EXHIBITS MARKED

Ex.P1 – Special Report Nil Ex.P2 –Original FIR Ex.P3 – Letter of the request EX.P4 – Letter of Advice Ex.P5 – Chemical analysis report.

M.O’s MARKED

Mo.1 – Sample bottle

FAC II-AJCJ,NRT.

// True Copy //

II-A.J.C.J,NRT.

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

9

CALENDER AND JUDGEMENT

C.C.NO.12/2019

Date of offence :10-10-2018 Date of report/complaint :10-10-2018 Date of apprehension of accused : --- Date of release on bail : –- Taking of cognizance :11-02-2019 Furnishing of copies to the accused :22-03-2019 Recording plea of the accused :22-03-2019 Date of commencement of trial :29-03-2019 Date of closure of trial :26-04-2019 Examination U/s 313 Cr.P.C. :26-04-2019 Date of Judgment :01-05-2019 Explanation for delay : No delay. Name of the complainant : Proh. & Excise Inspector,Sattenapalli. --------------------------------------------------------------------------------------- Description of the Accused

Meda Koteswaramma, W/o Venkateswarlu, 50 years, Caste – Erukala, R/o Vemuluripadu Village, Phirangipuram Mandal. ______________________________________________________________

Offence U/Secs. : 34-(a) of AP. Excise Act. Finding : Found not guilty. Result: In the result, accused is found not guilty for the offence under Sec.34(a) of A.P Excise Act, 1968 and she is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per Sec.437 A Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Sd/-P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

Copy Submitted to: The Hon'ble Chief Judicial Magistrate, Guntur for favour of information. Copy to The Superintendent of Police, Guntur Rural.

// True Copy //

II-A.J.C.J,NRT.

1

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

PRESENT : Smt P. SANTHI II Addl. Junior Civil Judge, Sattenapalli FAC II Addl. Junior Civil Judge, Narasaraopet.

Dated this the 01st day of May, 2019

C.C.13/2019

Between :

State: Proh. & Excise, Inspector Sattenapalli. (Cr.No.95/18) … COMPLAINANT

Vs.

Sale Kumari @ Lakshmi, W/o Balaiah, 60 years,

Caste – Mala, R/o Phirangipuram Village and Mandal. ... ACCUSED

This case is coming on before me for final hearing in the presence of learned APP for the State and Sri S.Srinivasa Rao, counsel for the accused and after perusing the case records, hearing upon the arguments on both sides and having stood over for consideration till this date, this Court has delivered the following :

J U D G M E N T

1.Accused stand charge sheet by the Proh. & Excise Inspector,

Sattenapalli, for offence punishable under Section 34 (a) of A.P. Excise Act.

2.In brief, it is the case of the prosecution, that on 14-11-2018,

Lw.1 to 3 along with other staff, while conducting raids for Proh. and Excise offences, reached in the right side margin of the road, at railway gate, in

Phirangipuram to 113 Thalluru road, which is within the limits of

Phirangipuram Mandal, at about 06.30 am and noticed the accused, standing there by holding a black polythene bag, in her right hand and on seeing the

Excise Officials in uniform, the accused got perturbed and tried to skulk away.

Having observed the same, Lw.3 on suspicion got detained the accused, with the help of staff and on enquiry, the accused admitted possession of Liquor bottles, in the black polythene bag, held by her. In order to verify the said cover, in the presence of mediators, Lw.3 sent Lw.1 to bring mediators. After 2 some time Lw.1 returned and reported that the village officials were not available then in the village and that the village elders refused to some forward to act as mediators in Excise cases. Lw.3 decided to proceed under special report and on verification of the black polythene bag, in possession of accused, found it containing 8 – 180 ml. Original Choice Reserve Whisky bottles. On enquiry the accused furnished her name and address particulars.

On further enquiry, the accused confessed that she purchased the said liquor bottles at the wine shop with a view to sell them in her village at higher rate and the accused replied that she was not possessed any bill, or permit or license pertaining to the said liquor bottles. Lw.3 had taken one bottle, as the samples for analysis, kept the remaining 7 - bottles in the same bag, tied the same and affixed identity slips, to the sample bottle and the bag, seized the same and arrested the accused and booked a case against the accused.

Basing on the special report, this case in Cr.No.95/2018 under

Section 34 (a) of A.P. Excise Act was registered by Lw.3 and produced the accused before this court, then the seized sample was sent to Chemical

Examiner for analysis and report and upon receiving the analysis report and on completion of investigation, Lw.4 laid charge sheet against the accused under Section 34 (a) of A.P. Excise Act.

3.The charge sheet was taken on file against accused under Section 34

(a) of A.P. Excise Act.

4.On appearance of the accused, copies of the charge sheet and other documents were furnished to her under Section 207 Cr.P.C. She was examined under Section 239 Cr.P.C. A Charge under Section 34 (a) of A.P.

Excise Act was framed against her, read over and explained to her. She denied the charge and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.W.1 and Pw.2 examined. Exs.P1 to P5 and Mo.1 got marked.

3

6.After closure of prosecution evidence, accused was examined under

Section 313 Cr.P.C with the incriminating material available on record. She denied the prosecution evidence and reported no defence evidence and no documents were marked on behalf of the defence.

7. Heard both sides and perused the case record.

8. Now the point for determination is whether the prosecution proved the guilt of accused for the offence under Section 34 (a) of A.P. Excise Act beyond reasonable doubt ?

9. POINT :

PW.1 – P.Padmaja, Constable deposed that on 14-11-2018 at about 106.30 am she along with Lw.2 to 4 proceeded to conduct petrolling of Proh&

Excise offences and they reached Railway gate road, Phrangipuram to

Thalluru and they found accused with black polythene bag and on seeing them in uniform accused tried to skulk away and Lw.3 detained accused with the help of other staff and on enquiry accused confessed that accused in possession of liquor bottles and Lw.3 deputed her for securing mediators but no body came forward to act as mediators as VRO and VRA were not available later Lw.3 decided to scribe special report and opened the bag found 8 – 180 ml Original Choice Reserve Whisky bottles containing full of liquor Lw.3 had drawn one bottle as sample for chemical analysis and seized the remaining property under the cover of special report and affixed identity slips to the sample and seized the property. Ex.P1 is Special Report. Later Lw.3 arrested accused and brought to the police station. Later they return from scene of offence along with accused and case property.

10. PW.2 –B.Kameswara Rao, P & E Inspector deposed that on 14-11-2018 at about 06.30 am himself, Pw.1 and other staff produced the accused along with case property seized from the possession along with with special report. Basing on which he registered a case in Cr.No.95/2018

U/s.34(a) of A.P.Excise Act 1968 under Ex.P2 and he submitted original FIR 4 to this court and copies to all concerned and produced the accused before this court and he sent sample to Government chemical examiner P & E

Labouratory, Guntur who reported under Ex.P3 that he forwarded the same for chemical analysis, Ex.P4 he received the proposal the confiscation property and orders awaited, Ex.P5 is chemical analysis report after completion of investigation Lw.4 filed charge sheet.

11. Coming to the appreciation of evidence on record, it is the main contention of the learned defence counsel that as all the witnesses are official witnesses, their evidence shall be discarded. But, it is settled law that when only the police person has been examined, their evidence is not liable to be discarded, but it should be weighed with utmost care and caution. In such situation, it is also the duty of court to see whether there is a possible opportunity for the police officer to secure the mediators and whether the arresting police officials made any effort to secure mediators. However, when there is possible opportunity for the police officer to secure the mediators and if he fails to do so, it can be considered as a lapse on the part of the investigating agency.

12.Pw.1 deposed in her cross examination that they did not secure mediators while starting from Sattenapalli and the boundaries of the scene of offence is not mentioned in Ex.P1 and Ex.P1 was scribed is not mention and the scene of offence is a mandal head quarters and Pw.2 did not issue any instruction to Pw.1 for securing mediators. Ex.P1 does not contain the boundaries of scene of offene and Lw.3 did not examine any customer at the scene of offence and the source of supply of liquor bottles is not ascertain by

Lw.3 and the seized bottles are similar to liquor bottles in this case are available in open market.

13. In MUDAVATH MOTHIA V/S STATE OF ANDHRA PRADESH

reported in 2002(1) ALT (Crl.) 437 AP. The Hon’ble High Court

5 observed in Para No.5 that:

“Adverting to the same, the offence under Section 34 of the A. P.

Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, ex. P -5 panchanama is hit by Sections 25,27 of the Indian EV I DEN CE A CT, 1872 and Section 161 of Cr. P. C. The benefit if any arises due to the invalidity of the investigation only goes to the accused and once the Ex. P-5 is hit by sections 25 and 27 of the Indian Evidence act, and Section 161 of Cr. P. C. and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian EVIDENCE

ACT, 1872 and Sec. 161 of Cr.P.C. It is not a case where the property was seized by virtue of confession made. W hen it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt. Both the courts have not looked into the evidence from proper angle. The conviction and sentence awarded is, therefore, liable to be set aside due to the illegality of the proceedings drafted. Moreover, only one sample of sachet was produced before the court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I. D Liquor and it is not proved”.

14. In GAJAMKERNARAYANA V/S STATE OF ANDHRA PRADESH

2005 (3) ALT Crl.(1) AP. The Hon’ble High Court observed in Para

No.5 that:

6 “ Here, in the case on hand, the accused was found in possession of I.D.

liquor at bypass road Rangadampally near Siddipet. The evidence of P.W. 1, the Excise Sub- Inspector, discloses that there are residential houses at a distance of 25 yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W. 1, they took the punch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of

P.W. 3, the then Excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the Excise Officials picked up punch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W. 1 nor that of P.W.

3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators.

Ex. P -1, Panchanama, also does not disclose that any effort was made by

Excise Officials to secure independent respectable inhabitants of the locality.

Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100 (4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D.

liquor. Therefore, the seizure made in this case is illegal”.

15. In such facts and circumstances of the case, when the excise officials failed to secure independent persons as mediators, though they have a possible opportunity and thus failed to follow the procedure for seizure, the court is of view that in absence of any independent evidence, it is not safe to rely on the evidence of Pws.1 and 2 are i.e., the Excise officials for convicting the accused.

16. For the foregoing reasons and in the light of principles of ratio laid down by Hon’ble High Court in above case I am of the opinion that there is no convincing and satisfactory evidence to prove that accused was found in 7 possession of liquor bottles as alleged, Ex.P1 could not be relied upon.

Though Ex.P3 discloses that the contents of M.O.1 contained the Indian alcohol, as there is no convincing evidence to prove that the contents of

M.O.1 was drawn from seized liquor bottles said to be found from the possession of accused Ex.P3 could not be relied upon. Thus, the court holds that the prosecution has failed to establish the guilt of accused for offence punishable u/Sec. 34(a) of A.P Excise Act beyond reasonable doubt and thus accused is entitled to benefit of doubt. Accordingly, the point is answered against the prosecution.

18. In the result, accused is found not guilty for the offence under

Sec.34(a) of A.P Excise Act, 1968 and she is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per Sec.437 A

Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in the open Court on this the 1st day of May, 2019.

Sd/- P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

APPENDIX OF EVIDENCE

NO. OF WITNESS EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 –P.Padmaja, Constable PW2 –B.Kameswara Rao, P & E Inspector NIL

EXHIBITS MARKED

Ex.P1 – Special Report Nil Ex.P2 –Original FIR Ex.P3 – Letter of the request EX.P4 – Letter of Advice Ex.P5 – Chemical analysis report.

M.O’s MARKED

Mo.1 – Sample bottle

FAC II-AJCJ,NRT.

// True Copy // 8

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

CALENDER AND JUDGEMENT

C.C.NO.13/2019

Date of offence :14-11-2018 Date of report/complaint :14-11-2018 Date of apprehension of accused : --- Date of release on bail : –- Taking of cognizance :11-02-2019 Furnishing of copies to the accused :22-03-2019 Recording plea of the accused :22-03-2019 Date of commencement of trial :29-03-2019 Date of closure of trial :26-04-2019 Examination U/s 313 Cr.P.C. :26-04-2019 Date of Judgment :01-05-2019 Explanation for delay : No delay. Name of the complainant : Proh. & Excise Inspector,Sattenapalli. --------------------------------------------------------------------------------------- Description of the Accused

Sale Kumari @ Lakshmi, W/o Balaiah, 60 years, Caste – Mala, R/o Phirangipuram Village and Mandal. ______________________________________________________________

Offence U/Secs. : 34-(a) of AP. Excise Act.

Finding : Found not guilty.

Result: In the result, accused is found not guilty for the offence under Sec.34(a) of A.P Excise Act, 1968 and she is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per

Sec.437 A Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Sd/-P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

Copy Submitted to: The Hon'ble Chief Judicial Magistrate, Guntur for favour of information. Copy to The Superintendent of Police, Guntur Rural.

// True Copy //

II-A.J.C.J,NRT.

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IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

PRESENT : Smt P. SANTHI FAC II Addl. Junior Civil Judge, Narasaraopet.

Dated this the 30th day of April, 2019

C.C.14/2019

Between :

State: Proh. & Excise, Inspector Sattenapalli. (Cr.No.96/18) … COMPLAINANT

Vs.

Bodala Rajesh, S/o Kotaiah, 30 years, Caste Madiga,

R/o Phirnagipuram Village and Mandal. ... ACCUSED

This case is coming on before me for final hearing in the presence of learned APP for the State and Sri S.Srinivasa Rao, counsel for the accused and after perusing the case records, hearing upon the arguments on both sides and having stood over for consideration till this date, this Court has delivered the following :

J U D G M E N T

1.Accused stand charge sheeted by the Proh. & Excise

Inspector, Sattenapalli, for offence punishable under Section 34 (a) of A.P.

Excise Act.

2.In brief, it is the case of the prosecution, that on 16-11-201 Lw.1 to 3 along with other staff, while conducting raids for Proh. and Excise offences, reached in the right side margin of the road, at railway gate, in

Phirangipuram to 113 Thalluru road, which is within the limits of phirangipuram, at about 6.30 am and noticed the accused, standing there by holding a black polythene bag, in his right hand and on seeing the Excise

Officials in uniform, the accused got perturbed and tried to skulk away.

Having observed the same, Lw.3 on suspicion got detained the accused, with the help of staff and on enquiry, the accused admitted possession of Liquor bottles, in the black polythene bag, held by him. In order to verify the said 2 cover, in the presence of mediators, Lw.3 sent Lw.1 to bring mediators. After some time Lw.1 returned and reported that the village officials were not available then in the village and that the village elders refused to some forward to act as mediators in Excise cases. Lw.3 decided to proceed under special report and on verification of the black polythene bag, in possession of accused, found it containing 10 – 180 ml. DK Double Kick Fine Whisky bottles.

On enquiry the accused furnished his name and address particulars. On further enquiry, the accused confessed that he purchased the said liquor bottles at the wine shop with a view to sell them in his village at higher rate and the accused replied that he was not possessed any bill, or permit or license pertaining to the said liquor bottles. Lw.3 had taken one bottle, as the samples for analysis, kept the remaining 9 - bottles in the same bag, tied the same and affixed identity slips, to the sample bottle and the bag, seized the same and arrested the accused and booked a case against the accused.

Basing on the special report, this case in Cr.No.96/2018 under

Section 34 (a) of A.P. Excise Act was registered by Lw.3 and produced the accused before this court, then the seized sample was sent to Chemical

Examiner for analysis and report and upon receiving the analysis report and on completion of investigation, Lw.4 laid charge sheet against the accused under Section 34 (a) of A.P. Excise Act.

3.The charge sheet was taken on file against accused under Section 34

(a) of A.P. Excise Act.

4.On appearance of the accused, copies of the charge sheet and other documents were furnished to her under Section 207 Cr.P.C. She was examined under Section 239 Cr.P.C. A Charge under Section 34 (a) of A.P.

Excise Act was framed against her, read over and explained to him. He denied the charge and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.W.1 and Pw.2 examined. Exs.P1 to P5 3 and Mo.1 got marked.

6.After closure of prosecution evidence, accused was examined under

Section 313 Cr.P.C with the incriminating material available on record. he denied the prosecution evidence and reported no defence evidence and no documents were marked on behalf of the defence.

7. Heard both sides and perused the case record.

8. Now the point for determination is whether the prosecution proved the guilt of accused for the offence under Section 34 (a) of A.P. Excise Act beyond reasonable doubt ?

9. POINT :

PW.1 – G.Sandeep, Head-Constable, deposed that on 16-11-2018 at about 6.30 am he along with Lw.2 to 4 proceeded to conduct petrolling of Proh& Excise offences. Accordingly they reached Railway gate road, 113 Thalluru the road leads to

Phirnaipuram they found accused with black polythene bag and on seeing them in uniform accused tried to skulk away and Lw.3 detained accused with the help of other staff and on enquiry accused confessed that accused in possession of liquor bottles and he deputed Lw.3 for securing mediators but no body came forward to act as mediators as VRO and VRA were not available later Lw.3 decided to scribe special report and opened the bag found 10 – 180 ml DK Double Kick Fine Whisky bottles containing full of liquor Lw.3 had drawn one bottle as sample for chemical analysis and seized the remaining property under the cover of special report and affixed identity slips to the sample and seized the property. Ex.P1 is Special Report. Later

Lw.3 arrested accused and brought to the police station. Later they return from scene of offence along with accused and case property.

10. PW.2 –B.Kameswara Rao, P & E Inspector deposed that on 16- 11-2018 at about 6.30 himself, Pw.1 and Lw.2 produced the accused along with case property seized from the possession along with with special report.

Basing on which he registered a case in Cr.No.96/2018 U/s.34(a) of

A.P.Excise Act 1968 under Ex.P2 and he submitted original FIR to this court and copies to all concerned and produced the accused before this court and 4 he sent sample to Government chemical examiner P & E Labouratory, Guntur who reported under Ex.P3 that he forwarded the same for chemical analysis,

Ex.P4 he received the proposal the confiscation property and orders awaited,

Ex.P5 is chemical analysis report after completion of investigation Lw.4 filed charge sheet.

11. Coming to the appreciation of evidence on record, it is the main contention of the learned defence counsel that as all the witnesses are official witnesses, their evidence shall be discarded. But, it is settled law that when only the police person has been examined, their evidence is not liable to be discarded, but it should be weighed with utmost care and caution. In such situation, it is also the duty of court to see whether there is a possible opportunity for the police officer to secure the mediators and whether the arresting police officials made any effort to secure mediators. However, when there is possible opportunity for the police officer to secure the mediators and if he fails to do so, it can be considered as a lapse on the part of the investigating agency.

12. Pw.2 deposed in his cross examination that they did not secure mediators while starting from Sattenapalli and the boundaries of the scene of offence is not mentioned in Ex.P1 and Ex.P1 was scribed is not mention and the scene of offence is a mandal head quarters and he did not issue any instruction to Pw.1 for securing mediators. Ex.P1 does not contain the boundaries of scene of offene and Lw.2 did not examine any customer at the scene of offence and the source of supply of liquor bottles is not ascertain by

Lw.2 and the seized bottles are similar to liquor bottles in this case are available in open market.

13. In MUDAVATH MOTHIA V/S STATE OF ANDHRA PRADESH

reported in 2002(1) ALT (Crl.) 437 AP. The Hon’ble High Court

observed in Para No.5 that: “Adverting to the same, the offence under 5

Section 34 of the A. P. Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, ex. P -5 panchanama is hit by Sections 25,27 of the Indian EV I DEN CE A CT, 1872 and Section 161 of Cr. P. C. The benefit if any arises due to the invalidity of the investigation only goes to the accused and once the Ex. P-5 is hit by sections 25 and 27 of the Indian Evidence act, and Section 161 of Cr. P. C.

and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the

Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr.P.C. It is not a case where the property was seized by virtue of confession made. W hen it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt. Both the courts have not looked into the evidence from proper angle. The conviction and sentence awarded is, therefore, liable to be set aside due to the illegality of the proceedings drafted. Moreover, only one sample of sachet was produced

before the court and not all the sachets seized and it is for the prosecution to

establish that all the samples of sachets seized contain I. D Liquor and it is not proved”.

14. In GAJAMKERNARAYANA V/S STATE OF ANDHRA PRADESH

2005 (3) ALT Crl.(1) AP. The Hon’ble High Court observed in Para

No.5 that:

“ Here, in the case on hand, the accused was found in possession of I.D.

6 liquor at bypass road Rangadampally near Siddipet. The evidence of P.W. 1, the Excise Sub- Inspector, discloses that there are residential houses at a distance of 25 yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W. 1, they took the punch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of

P.W. 3, the then Excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the Excise Officials picked up punch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W. 1 nor that of P.W.

3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators.

Ex. P -1, Panchanama, also does not disclose that any effort was made by

Excise Officials to secure independent respectable inhabitants of the locality.

Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100 (4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D.

liquor. Therefore, the seizure made in this case is illegal”.

15. In such facts and circumstances of the case, when the excise officials failed to secure independent persons as mediators, though they have a possible opportunity and thus failed to follow the procedure for seizure, the court is of view that in absence of any independent evidence, it is not safe to rely on the evidence of Pws.1 and 2 are i.e., the Excise officials for convicting the accused.

16. For the foregoing reasons and in the light of principles of ratio laid down by Hon’ble High Court in above case I am of the opinion that there is no convincing and satisfactory evidence to prove that accused was found in possession of liquor bottles as alleged, Ex.P1 could not be relied upon.

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Though Ex.P3 discloses that the contents of M.O.1 contained the Indian alcohol, as there is no convincing evidence to prove that the contents of

M.O.1 was drawn from seized liquor bottles said to be found from the possession of accused Ex.P3 could not be relied upon. Thus, the court holds that the prosecution has failed to establish the guilt of accused for offence punishable u/Sec. 34(a) of A.P Excise Act beyond reasonable doubt and thus accused is entitled to benefit of doubt. Accordingly, the point is answered against the prosecution.

18. In the result, accused is found not guilty for the offence under

Sec.34(a) of A.P Excise Act, 1968 and he is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per Sec.437 A

Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in the open Court on this the 30th day of April, 2019.

Sd/-P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

APPENDIX OF EVIDENCE

NO. OF WITNESS EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 –G.Sandeep, Head-Constable PW2 –B.Kameswara Rao, P & E Inspector NIL

EXHIBITS MARKED

Ex.P1 – Special Nil Ex.P2 –Original FIR Ex.P3 – Letter of the request EX.P4 – Letter of Advice Ex.P5 – Chemical analysis report.

M.O’s MARKED

Mo.1 – Sample bottle

Sd/-P.Santhi

FAC II-AJCJ,NRT.

// True Copy //

II-A.J.C.J,NRT.

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM – II-ADDL

JUDICIAL MAGISTRATE OF FIRST CLASS ::NARASARAOPET

8

CALENDER AND JUDGEMENT

C.C.NO.14/2019

Date of offence :16-11-2018 Date of report/complaint :16-11-2018 Date of apprehension of accused : --- Date of release on bail : –- Taking of cognizance :11-02-2019 Furnishing of copies to the accused :22-03-2019 Recording plea of the accused :22-03-2019 Date of commencement of trial :29-03-2019 Date of closure of trial :26-04-2019 Examination U/s 313 Cr.P.C. :26-04-2019 Date of Judgment :30-04-2019 Explanation for delay : No delay. Name of the complainant : Proh. & Excise Inspector,Sattenapalli. --------------------------------------------------------------------------------------- Description of the Accused

Bodala Rajesh, S/o Kotaiah, 30 years, Caste Madiga, R/o Phirnagipuram Village and Mandal. ______________________________________________________________

Offence U/Secs. : 34-(a) of AP. Excise Act.

Finding : Found not guilty.

Result: In the result, accused is found not guilty for the offence under Sec.34(a) of A.P Excise Act, 1968 and he is acquitted U/s. 248 (1) Cr.P.C., for the same. The bail bonds of the accused shall be in 6 months as per Sec.437 A Cr.P.C. M.O.1 shall be destroyed after appeal time is over.

Sd/-P.Santhi

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

FAC II ADDL. JUNIOR CIVIL JUDGE,

NARASARAOPET.

Copy Submitted to: The Hon'ble Chief Judicial Magistrate, Guntur for favour of information. Copy to The Superintendent of Police, Guntur Rural.

// True Copy //

II-A.J.C.J,NRT.