Sri R Raghunath Reddy

1 of 14 A.S.No.30 of 2018

IN THE COURT OF V ADDITIONAL DISTRICT JUDGE AT

MIRYALAGUDA, NALGONDA DISTRICT

Wednesday, the 1st day of February, 2023

Present: Sri R.Raghunath Reddy,

V Additional District Judge,

Miryalaguda.

A.S.No.30 of 2018

Between:

1. Dasari Ramaiah, S/o Bixamaiah, Age 54 years, Occ: Agriculture,

2. Dasari Lingamma, W/o Ramaiah, Age 51 years, Occ: Housewife, Both are R/o. Thadakamalla Village of Miryalaguda Mandal, Nalgonda District.

…. Appellants/defendants No.1 and 2

AND

1. Communist Party of India (Marxist), Thadakamalla Village unit, represented by its authorized person Chegondi Saidamma, R/o Thadakamalla Village of Miryalaguda Mandal, Nalgonda District. …. Respondent/plaintiff

2. The District Collector, Nalgonda.

3. The (Tahsildar) Mandal Revenue Officer, Miryalaguda.

… Respondents/defendants No.3 and 4

On being aggrieved by the decree and judgment passed by the Court of Additional Junior Civil Judge, Miryalaguda, dated 09.03.2018 in

O.S.No.136 of 2013

Between:

Communist Party of India (Marxist), Thadakamalla Village unit, represented by its authorized person Chegondi Saidamma, R/o Thadakamalla Village of Miryalaguda Mandal, Nalgonda District. …. Plaintiff AND

1. Dasari Ramaiah, S/o Bixamaiah, Age 49 years, Occ: Agriculture,

2. Dasari Lingamma, W/o Ramaiah, Age 46 years, Occ: Housewife, Both are R/o Thadakamalla Village of Miryalaguda Mandal, Nalgonda District.

3. The District Collector, Nalgonda.

4. The (Tahsildar) Mandal Revenue Officer, Miryalaguda. … Defendants

This appeal suit is coming before me for final hearing on 02.01.2023 in the presence Sri Ch. Raghurama Rao, Advocate for the appellants and of Sri P. Ravindra

Reddy, Advocate for the respondent/plaintiff and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:

2 of 14 A.S.No.30 of 2018

:: JUDGMENT ::

The defendants No.1 and 2 in O.S.No.136 of 2013 on the file of the Court of

Additional Junior Civil Judge, Miryalaguda, filed this appeal against the judgment and

decree dated 09.03.2018 passed in the said suit.

2. The suit schedule property is 432 square yards of open site with Gram

Panchayat door No.3-19 situated at Thadakamalla Village, Miryalaguda Mandal,

Nalgonda District. The suit A-schedule property is 60 square yards at North-West corner of the suit schedule property.

3. For the sake of convenience, the parties herein will be referred to as they stand in the suit before the learned trial Court i.e., „the plaintiff‟ and „the defendants‟.

4. The plaintiff is Communist Party of India (Marxist), Thadakamalla

Village Unit. It has filed this suit for a declaration that it is the absolute owner of the suit schedule property and to direct the defendants No.1 and 2 to handover the vacant possession of the suit A-schedule property to it and also to grant injunction restraining the defendants No.1 and 2, their men, agents, etc., from causing any sort of interference with its possession and enjoyment over the suit schedule property.

5. The averments made in the plaint, in brief, are: The plaintiff is the absolute owner and possessor of the suit schedule property and it raised a small hut at a corner in the said property and has been carrying out its office from the said hut. The

Gram Panchayat, Thadakamalla, assigned door number to the said hut about more than 20 years back and since then, the suit schedule property is being recorded as property of the plaintiff in the concerned records. In the year 2003, the defendant No.1 encroached into an extent of half a gunta of land in the suit schedule property i.e., the suit A- schedule property. On noticing the same, the plaintiff reported the matter to the

Gram Panchayat with a request to get evicted the defendant No.1 from the suit A- schedule property. The Gram Panchayat sent its officials to the defendant No.1 with a direction to remove the defendant No.1 from the suit A-schedule property. But, the defendant No.1 threatened the said officials and, therefore, the then Sarpanch and 3 of 14 A.S.No.30 of 2018

Panchayat Secretary reported the matter to Miryalaguda Rural Police. The defendant

No.1 filed a report with the District Collector (defendant No.3), upon which, the defendant No.3 directed the Mandal Revenue Officer, Miryalaguda (defendant No.4) to enquire into the matter and submit a report thereof. In pursuance of the said directions of the defendant No.3, the defendant No.4 enquired into the matter and submitted his report to the defendant No.3 vide letter No.M/20504/2003 dated 28.10.2004 to the effect that the plaintiff is the owner and possessor of the suit schedule property and the defendant No.1 is in no way concerned with the said property. In the first week of

June, 2008, the defendant No.1 once again tried to encroach into a portion of the suit schedule property, upon which, the plaintiff reported the matter to the Revenue

Divisional Officer, Miryalaguda, who, in turn, directed the Divisional Panchayat

Officer, Miryalaguda, to take suitable action against the defendant No.1. In pursuance of the said direction, the Divisional Panchayat Officer, Miryalaguda, passed orders in

Memo No.A1/173/08 dated 10.06.2008 directing the Panchayat Secretary to prevent the encroachment into the suit schedule property. But, in spite of repeated protests, the defendant No.1 encroached into the suit schedule property in the month of March, 2009 and dug trenches for raising construction and then, the Panchayat Secretary of

Thadakamalla Gram Panchayat reported the matter to the police vide letter dated 20.03.2009, upon which, the police called the defendant No.1 and instructed him not to resort to the acts of encroachment into the suit schedule property and also warned him that in the event of proceeding any further in carrying out the construction in the suit schedule property without producing any piece of paper to show his right over the said portion of land, a criminal case will be booked against him for the offence under

Section 447 of the Indian Penal code. Then, the defendant No.1 retrieved himself from the portion encroached by him. But, in the month of July, 2009, the defendant No.1 again tried to encroach upon the suit schedule property and, therefore, the plaintiff filed a suit being O.S.No.236 of 2009 for perpetual injunction against the defendant

No.1 and the Court granted an ex parte ad interim injunction. But, even after granting 4 of 14 A.S.No.30 of 2018 such an order of injunction, the defendant No.1 continued his act of encroachment and raised a structure at the North-West corner of the suit schedule property in August, 2009 and then, the plaintiff lodged a report with the police of Miryalaguda Rural

Police Station, who, in turn, registered a case in Crime No.152 of 2009 against the defendant No.1 and filed a charge sheet thereof. Thereafter, the defendant No.1 did not come back into the possession of any portion of the suit schedule property and, therefore, the plaintiff felt that it is not necessary to continue the suit i.e., O.S.No.236 of 2009, and hence, the said suit was dismissed for default. After dismissal of said suit, the defendant No.1 played fraud and obtained an assignment order from the defendant

No.4 in the name of the defendant No.2 for the portion encroached by him earlier. On coming to know the same, some of the villagers lodged an objection before the defendant No.4 and the defendant No.4 enquired into the matter and cancelled the assignment certificate granted in favour of the defendant No.2 vide proceedings No.

B2/15035/2012 dated 02.01.2013. But, strangely, at the influence of politicians of ruling party, the defendant No.4, vide order dated 01.02.2013, recalled her own order

dated 02.01.2013 and after passing of such orders by the defendant No.4, the

defendants No.1 and 2 encroached into the suit A-schedule property and started construction work and then, the plaintiff represented the matter to the Revenue

Divisional Officer, Miryalaguda, and sought his indulgence and then, the Revenue

Divisional Officer directed the defendant No.4 to look into the matter and the defendant No.4, in turn, passed orders vide letter No.B/479/2013 dated 01.05.2013 directing the Village Revenue Officer, Thadakamalla, to stop the construction work, if any, being carried out by the defendants No.1 and 2 in the suit schedule property and in pursuance of said orders of the defendant No.4, the Panchayat Secretary, Thadakamalla caused enquiry into the matter and informed the defendant No.4 vide letter bearing

No.33/2013, dated 09.05.2013, about the ground realities of the matter. Despite the said state of affairs, the defendants No.1 and 2 recently started gathering the construction material like stone, metal, sand, centering instruments, etc., near the suit 5 of 14 A.S.No.30 of 2018 schedule property so as to encroach into a portion of the suit schedule property and continue the construction from the stage where it was abandoned in the year 2009. On noticing the said activity of the defendants No.1 and 2, the sympathizers of the plaintiff tried to resist the defendants No.1 and 2 from pooling construction material near the suit schedule property, but, the defendants No.1 and 2 threatened them to implicate in a false case under the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act and, therefore, the said sympathizers could not stop the unlawful activity of gathering the construction material by the defendants No.1 and 2. Hence, the suit.

6. The defendants No.1 and 2 filed written statement specifically denying the ownership and possession of the plaintiff over the suit schedule property. It is stated by them that the suit itself is not maintainable, as, the plaintiff had no right, title or interest over the suit schedule property and that the so called documents on which the plaintiff is relying on are the correspondence letters between the departments concerned and that the said letters do not confer any right, title or interest upon the plaintiff over the suit schedule property. It is further stated by them that they are requesting the sitting MLA Sri Julakanti Ranga Reddy to intervene and protect them from the plaintiff and not to pressurize them to vacate the dwelling small hut which is in the suit schedule property. They, accordingly, prayed to dismiss the suit with costs.

7. Initially, the Assistant Government Pleader filed a memo of appearance for and on behalf of the defendants No.3 and 4, but, the defendants No.3 and 4 did not file any written statement and hence, the learned trial Court set them ex parte.

8. On the basis of above rival pleadings, the learned trial Court framed the following issues for trial:

1. Whether the plaintiff is entitled for the relief of injunction as prayed for?

2. To what relief?

9. The learned trial Court in its judgment framed the following additional issues:

6 of 14 A.S.No.30 of 2018

1. Whether the plaintiff is entitled for declaration that it is the absolute owner of the suit schedule property?

2. Whether the plaintiff is entitle for recovery suit A schedule property after evicting the defendants No.1 and 2 there from alternatively, in the event, this Hon‟ble Court comes to a conclusion that the plaintiff is not in possession of suit A schedule property?

10. During the trial before the learned trial Court, on behalf of the plaintiff,

PWs.1 to 3 were examined and Exs.A1 to A15 were marked, whereas, on behalf of the defendants No.1 and 2, DW.1 was examined and Ex.B1 was marked.

11. The learned trial Court, upon appreciation of evidence adduced by both the parties, vide the impugned judgment and decree, decreed the suit as under:

“In the result the suit of plaintiff is decreed granting declaration that the plaintiff is the absolute owner of suit schedule property and the defendants 1 and 2 are directed to vacate the deliver vacant possession of the suit A schedule property to the plaintiff. The plaintiff is also granted a decree for the relief of permanent injunction restraining the defendants No.1 and 2, their men, servants, relatives, etc., from causing any sort of interference with the possession and enjoyment of plaintiff over the suit schedule property. Time for eviction is two months. Both parties are directed to bear their own cost.”

12. Feeling aggrieved by the impugned judgment and decree, the defendants No.1 and 2 filed this appeal.

13. It is contended by the learned counsel for the defendants No.1 and 2 that as admitted by PW.1 he has not filed any document to show that the suit schedule property belongs to CPI (M) party (plaintiff) and that except the internal correspondence and proceedings of revenue officials, there is no other document to show that the suit schedule property belongs to the plaintiff and that the criminal

Court vide its judgment in C.C.No.728 of 2010 (Ex.B1), which was filed against the defendant No.1 for the offences under Sections 427 and 447 of the Indian Penal

Code, held that the plaintiff failed to prove that the suit schedule property belongs to it and, accordingly, acquitted the defendant No.1 of the offences alleged, but, the learned trial Court did not appreciate the said things in right perspective and it decreed the suit erroneously. It is further contended by him that the defendants No.1 7 of 14 A.S.No.30 of 2018 and 2 are in possession and enjoyment of the suit A – schedule property and that the plaintiff, which has no manner of right, title or interest over the suit schedule property, cannot seek eviction of the defendants No.1 and 2 from the suit A – schedule property. The learned counsel, accordingly, prayed to allow the appeal, set aside the impugned judgment and decree and consequently dismiss the suit.

14. On the other hand, it is contended by the learned counsel for the plaintiff that though the plaintiff did not have any registered instrument in respect of the suit schedule property, it has been in possession and enjoyment of the said property for the last more than 25 years and the Gram Panchayat concerned also recognized the right, interest and possession of the plaintiff over the suit schedule property and that the defendants No.1 and 2 did not have any better title than the plaintiff over the suit schedule property and that the possession, if any, had by the defendants No.1 and 2 over the suit A-schedule property is an illegal and unauthorized one and, therefore, the plaintiff is entitled to seek their dispossession from the said property and that the learned trial Court, having appreciated the factual and legal aspects in right perspective, decreed the suit rightly and, therefore, this

Court cannot upset the impugned judgment and decree passed by the learned trial

Court.

15. In view of the above rival contentions, the following points would arise for determination:

1. Whether the plaintiff is entitled for a declaration that it is the owner of the suit schedule property?

2. Whether the plaintiff is entitled for possession of the suit A-schedule property?

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

4. To what relief?

16. The parties did not adduce any additional evidence in this appeal.

17. Point No.1: Whether the plaintiff is entitled for a declaration that it is the owner of the suit schedule property?

The case of the plaintiff is that it is the owner and possessor of the suit schedule property, which is a Gramakantam of Thadakamalla Village, but, the defendants No.1 8 of 14 A.S.No.30 of 2018 and 2 have occupied a part of the suit schedule property i.e., the suit A-schedule property, illegally. On the other hand, the case of the defendants No.1 and 2 is that the plaintiff is nothing to do with the suit schedule property and that they are in possession and enjoyment of the suit A- schedule property and that the plaintiff has no right to seek their dispossession from the suit A-schedule property.

18. PW.1, Gorla Indra Reddy, who is the authorized person of the plaintiff and PWs.2 and 3, who are stated to be the active members of the plaintiff, have stated that the plaintiff is the absolute owner of the suit schedule property. On the other hand, the defendant No.1 in his evidence as DW.1 has reiterated their case.

19. Apart from relying on oral evidence of PWs.1 to 3, the plaintiff is relying on certain documentary evidence to prove that it is the absolute owner of the suit schedule property. Ex.A1 is letter No.M/20504/2003, dated 28.10.2004, addressed by the Mandal Revenue Officer, Miryalaguda, to the District Collector, Nalgonda. From this letter, it appears that the defendant No.1 submitted a representation to the District

Collector (defendant No.3) about the suit schedule property and the defendant No.3, in turn, directed the Mandal Revenue Officer (defendant No.4) to enquire into the matter and submit a report thereof and the defendant No.4 caused enquiry into the matter and found that in Gram Panchayat records, the suit schedule property is recorded as the property of CPI (M) office (plaintiff) and the defendant No.1 has encroached upon half gunta of land in the suit schedule property and raised a hut therein with pulmera leaves and that he has no evidence to establish his right over the said land and on the other hand, he has a pucca house opposite to the suit schedule property. Ex.A2 is memo

No.A1/173/2008 dated 10.06.2008 issued by the Divisional Panchayat Officer,

Miryalaguda, from which, it appears that the plaintiff approached the Revenue

Divisional Officer, Miryalaguda, complaining the encroachment into the suit schedule property made by the defendant No.l and the Revenue Divisional Officer required the

Divisional Panchayat Officer to prevent the encroachment into the suit schedule property and the Divisional Panchayat Officer, in turn, required the Panchayat 9 of 14 A.S.No.30 of 2018

Secretary, Tadakamalla Gram Panchayat to take action for preventing the encroachment into the suit schedule property. Ex.A6 is photo copy of certificate dated 17.07.2009 issued by the Panchayat Secretary, Tadakamalla Gram Panchayat and

Ex.A11 is certified copy of said certificate, wherein he Panchayat Secretary certified that as per the revenue record of Gram Panchayat, the suit schedule property is being recorded as the office of CPI (M) (plaintiff) since 1995-96 onwards. Ex.A13 is certified copy of letter No.B1/1246/2009, dated 19.02.2010, addressed by the

Tahsildar, Miryalaguda, to the Sub-Inspector of Police (Rural), Miryalaguda. It appears from the said letter that the Sub-Inspector of Police required some information about the suit schedule property and the Tahsildar informed the Sub-Inspector of Police that as per the Revision Book of Gram Panchayat, Thadakamalla, for the years 1995-1996 and 2000-2001, the suit schedule property is standing in the name of communist party (Marxist) and the house tax was assessed at Rs.15.80/- and the Grandalaya cess was assessed at Rs.1.20, but, the defendant No.1 has encroached into the suit schedule property to an extent of 69 square yards and started constructing a house therein.

Ex.A12 is certified copy of letter No.B/479/2013, dated 01.05.2013, from the Tahsildar to the Special Officer/Panchayat Secretary, Thadakamalla Village. From this letter, it appears that one Gattikoppula Ram Reddy approached the Revenue Divisional Officer,

Miryalaguda, complaining that the defendant No.2 has been making illegal construction in the suit schedule property belonging to the plaintiff and the Revenue

Divisional Officer, in turn, required the Tahsildar to look into the matter and the

Tahsildar, in turn, directed the Special Officer/Panchayat Secretary to furnish the title deed and other related documents relating to the suit schedule property to Md. Jani,

Village Revenue Officer, Thadakamalla. Ex.A5 is photo copy of letter No.33/2013,

dated 09.05.2013 addressed by the Panchayat Secretary, Gram Panchayat,

Thadakamalla to the Tahsildar, Miryalaguda and Ex.A9 is certified copy of said letter, wherein the Panchayat Secretary informed the Tahsildar that as per the Gram

Panchayat records, the defendant No.2 has no manner of right or interest over the plot 10 of 14 A.S.No.30 of 2018 in which she is making construction and on the other hand, as per the revision records of 2000-2001, the said plot (suit schedule property) belongs to the Communist Party (Marxist) office.

20. From the above documentary evidence, it is obvious that in the Gram

Panchayat records, the suit schedule property is being recorded as the property of the plaintiff since 1995-1996 and it was assessed to tax also in the name of the plaintiff. It is true, as rightly contended by the learned counsel for the defendants No.1 and 2, the above documents are not the documents of title. But, it is to be noted that as per the said documents, the suit schedule property is Gramakantam and that vested with the

Gram Panchayat and the plaintiff has been in long standing possession of said property and that the Gram Panchayat also recognized the said property as the property of the plaintiff. Further, it is not that the defendants No.1 and 2 have got any right, title or interest over any part of the suit schedule property. In this regard, it is necessary to notice their case as pleaded in the written statement and the same reads as under:

“The plaintiff did not file any documents in proof of the said unit at Thadakamalla village from Central Committee of C.P.I. (M) Party. At least from the office of C.P.I. (M) State Committee. Moreover, the C.P.I. (M) Party alleged to have been support the poor, to protect the Dalit people from exploitation of the Boorguva people and also to protect the weaker sections people from domination of the upper caste people. The first suit filed by the

O.S.No.236 of 2009 was Gattikoppula Rami Reddy and the present suit filed

by the Gorla Indra Reddy, both are most influential persons and belonging to

Mighty caste “Reddy”. Against the manifesto of the C.P.I (M) party the said suits were filed to harass the defendants No.1 and 2 since 2009 to get vacate them from their lawful possession and actual possession over the suit land by dwelling in the same along with their family members.

The defendant Nos. 1and 2 are requesting the sitting M.L.A. Sri

Julakanti Ranga Reddy to intervene to protect them from the plaintiffs in

O.S.No.236 of 2009 and in the present suit and also requesting him not to

pressurized them from vacating the their dwelling small hut, which is in the suit schedule plot.”

21. From the above, the case of the defendants No.1 and 2 appears to be that since they belong to a scheduled caste, they are entitled to squat over a part of the suit 11 of 14 A.S.No.30 of 2018 schedule property i.e., the suit A–schedule property and they are pursuing the matter with the MLA to continue in possession of said property. But, it is to be noted that they did not even state as to how and when they came in possession of the suit A-schedule property and under what right they want to continue in possession of said property. As held by the Hon‟ble High Court of Andhra Pradesh in Atluri Kuchela Rao v. District

Collector, Hyderabad 1 , if the plaintiff establishes certain broad aspects and tenets of title and the defendant is not able to establish any superior title, a decree for declaration of title must follow and such a decree would operate only against the defendant and not against others, who are not parties to the suit. In the instant case also, the documents referred to above probablise the title of the plaintiff over the suit schedule property and the defendants No.1 and 2, admittedly, did not file any piece of paper showing their right, title or interest over any part of the suit schedule property. Further, if really the plaintiff has no right, title or interest over the suit schedule property, which is a

Gramakantam and vested with the Gram Panchayat, it is for the Gram Panchayat to resume the said property by following due process of law. But, the defendants No.1 and 2, who have, admittedly, no right, title or interest over the said property, cannot question the right and title of the plaintiff over the said property. So, in view of the above proposition of law, the plaintiff can be declared as the owner of the suit schedule property.

22. It is contended by the learned counsel for the defendants No.1 and 2 that the suit schedule property vests with the Revenue Department and the Tahsildar,

Miryalaguda Mandal, assigned patta in respect of 121 square yards out of the suit schedule property, vide file No.B2/15035/2012 dated 26.12.2012, in favour of the defendant No.2 and, therefore, the defendant No.2 can be said to have some right and interest over the suit schedule property. On the other hand, it is contended by the learned counsel for the plaintiff that the suit schedule property is a Gramakantam and the same vests with the Gram Panchayat, but, not with the Revenue Department and on 1 2012 (3) ALT 621 12 of 14 A.S.No.30 of 2018 coming to know the same, vide proceedings No.B2/15035/2012 dated 02.01.2013 (Ex.A3), the Tahsildar, Miryalaguda Mandal, cancelled the assignment patta granted in favour of the defendant No.2. The learned counsel further contended that the defendants No.1 and 2 did not plead anywhere that the Tahsildar has granted such a patta in favour of the defendant No.2 and in the absence of such a pleading, any evidence or contention in that regard cannot be entertained. It is true, as seen from

Ex.A3, the patta granted in favour of the defendant No.2 was cancelled by the

Tahsildar, Miryalaguda Mandal. Further, as seen from the case of the defendants No.1 and 2, which is noticed above, they did not plead anywhere that the Tahsildar has granted a patta in favour of the defendant No.2 and they did not even state the extent of land in their occupation in the suit schedule property. In the circumstances, it cannot be said that either the defendant No.1 or the defendant No.2 has got any right, title or interest over any extent of the suit schedule property.

23. It is next contended by the learned counsel for the defendants No.1 and 2 that the Court of Special Magistrate, Miryalaguda, vide its judgment dated 27.03.2015 in C.C.No.728 of 2010 (Ex.B1), which was filed against the defendant No.1 by the plaintiff alleging the offences under Sections 447 and 427 of the Indian Penal Code, held that the plaintiff herein failed to prove that it is the owner of the suit schedule property and consequently, acquitted the defendant No.1 and, therefore, the plaintiff cannot be held to be the owner of the suit schedule property. It is true that the Court of

Special Magistrate, Miryalaguda, held so in Ex.B1. But, it is a well settled law that the judgment of a criminal Court is not binding on a civil Court. Further, it is not that the defendants No.1 and 2 have got any document to show that they have got any right, title or interest over any extent of the suit schedule property. On the other hand, the documents referred to above show that the plaintiff has got some right and interest over the suit schedule property and it has been in long standing possession of the said property.

13 of 14 A.S.No.30 of 2018

24. For the reasons recorded above, there cannot be any hesitation to hold that the plaintiff is the owner of the suit schedule property. This point is, therefore, answered in favour of the plaintiff and against the defendants No.1 and 2.

25. Point No.2: Whether the plaintiff is entitled for possession of the suit A-schedule property?

The plaintiff is seeking possession of the suit A – schedule property by dispossessing the defendants No.1 and 2 from the said property. As seen from Ex.A1, the defendant No.1 occupied an extent of half gunta in the suit schedule property and erected a hut therein with pulmera leaves. The defendants No.1 and 2 are not denying the said fact. They, in fact, in their written statement, have stated that they raised a dwelling hut in the suit schedule plot. But, as held in point No.1, the plaintiff is the owner of the suit schedule property including the suit A- schedule property and the defendants No.1 and 2 have no manner of right, title or interest over the suit A – schedule property. So, the plaintiff would be entitled to the possession of the suit A- schedule property and the same is to be handed over to the plaintiff by dispossessing the defendants No.1 and 2. This point is answered accordingly.

26. Point No.3: Whether the plaintiff is entitled for perpetual injunction as prayed for?

The plaintiff is seeking injunction restraining the defendants No.1 and 2 from causing any sort of interference with its possession and enjoyment over the suit schedule property. As held in point No.1, the plaintiff is entitled for a declaration that it is the owner of the suit schedule property. Since the defendants No.1 and 2 have already occupied a part of the suit schedule property i.e., the suit A- schedule property, the apprehension of the plaintiff that the defendants No.1 and 2 may interfere with its possession over the suit schedule property cannot be said to be a misapprehension. So, it is just and necessary to restrain the defendants No.1 and 2 from causing any sort of interference with the possession and enjoyment of the plaintiff over the suit schedule property by way of permanent injunction. This point is, therefore, answered in favour of the plaintiff and against the defendants No.1 and 2.

14 of 14 A.S.No.30 of 2018

27. Point No.4: To what relief?

The learned trial Court, upon consideration of the evidence adduced by both the parties, decreed the suit declaring the plaintiff as the owner of the suit schedule property and directing the defendants No.1 and 2 to vacate and handover the possession of the suit A- schedule property to the plaintiff within two months from the date of judgment and also granting injunction restraining the defendants No.1 and 2 from causing any sort of interference with the possession and enjoyment of the plaintiff over the suit schedule property. For the reasons recorded and in view of the findings on points No.1 to 3, this Court is also of the opinion that the plaintiff is entitled for such reliefs and hence, the judgment and decree of the learned trial Court cannot be upset by this Court.

28. In the result, the appeal is dismissed, however, without costs, confirming the judgment and decree dated 09.03.2018 passed by the Court of Additional Junior

Civil Judge, Miryalaguda, in O.S.No.136 of 2013. The appellants/defendants No.1 and

2 are, however, granted three months‟ time to vacate and handover the possession of the suit A- schedule property to the plaintiff.

Dictated to the Stenographer (Gr.I) and after transcribed by her, corrected and

pronounced by me in the open Court, on this the 1st day of February, 2023.

Sd/-

V Additional District Judge, Miryalaguda.

Appendix of evidence (Witnesses examined and exhibits marked) -Nil-

Sd/-

V Additional District Judge, Miryalaguda. MUR *

1 of 14 S.C.No.162 of 2017

IN THE COURT OF VIII ADDITIONAL SESSIONS JUDGE:

MIRYALAGUDA

Thursday, the 26th day of May, 2022

Present: Sri R.Raghunath Reddy,

VIII Additional Sessions Judge, Miryalaguda.

S.C.No.162 of 2017

1Name of the complainantThe State of Telangana through the Circle- Inspector of Police, Haliya.

2Name of the accused1.Ramavath Prasad, S/o Ijja, Age: 23 years, Occ: Auto Driver, R/o. Mula Thanda, Presently at R/o. H.No.B/284, Pylon Colony, Nagarjuna Sagar.

2.Jale Chandra Shekhar Reddy @ Shekhar S/o Janaki Reddy, Age: 25 years, Occ: Cab driver, R/o. Manikonda, beside Sreeja Sweets, Gachibowli, Hyderabad.

3.Rayala Sandeep Reddy S/o. Vijay Kumar Reddy, Age: 22 years, Office Boy, Nithya Infractech, R/o. H.No.1-6-9/3A, Palsabgutta, Mahaboubnagar District.

4.Sudireddy Bhupendar Reddy S/o. Thara Chandra Reddy, Age: 23 years, Occ: Consultancy for MBBS study in abroad, R/o. H.No.1073, Charlapally Village, Kothakota Mandal, Mahabubnagar District.

3Offence complained ofUnder Section 302 read with Section 34 of the Indian Penal Code.

4Crime No. & Name of PS78 of 2016 of P.S. Vijayapuri Town 5Plea of the accusedPleaded not guilty 6Finding of the CourtFound not guilty 7Sentence or orderIn the result, A1 to A4 are found not guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, with which they are charged, and they are, accordingly, acquitted of the said offence, under Section 235 (1) of the Code of Criminal Procedure. Their bail bonds shall stand cancelled after expiry of appeal time. MOs 1 to 5 vide C.P.No.6 of 2019 shall be confiscated to the State and MO6 shall be destroyed after expiry of appeal time.

2 of 14 S.C.No.162 of 2017

This Sessions Case is coming before me on 27.04.2022 for final hearing in the presence of Sri M.Manohar Reddy, Addl. Public Prosecutor for the State and of Sri G.Venkat Reddy, Advocate for A1 and of Sri M.C.Koti Reddy, Advocate for A2 to A4 and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:

:: JUDGMENT ::

The Circle Inspector of Police, Haliya, laid a charge-sheet against A1 to

A4 in Crime No.78 of 2016 of Vijayapuri Town Police Station for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

2. The case of the prosecution as alleged in the charge-sheet, in brief, is: A1 and the deceased Shiva Kumar are residents of Pylon Colony,

Nagarjunasagar; A2 is a resident of Hyderabad and whereas A3 and A4 are residents of Mahabubnagar. The marriage of the sister of A1 was performed with one Mudavath Anji, resident of Mahabubnagar, about six years back. A2 to A4 are the close friends of said Anji and so, they used to visit the house of A1 very oftenly and that is how they had acquaintance with A1. On 28.10.2016, A2 called

A1 over phone and informed him that himself and A3 and A4 are coming to

Nagarjunasagar. On the same day, A2 to A4 went to Nagarjunasagar on a motorcycle bearing registration No.AP-11-AG-9217 belonging to A2 and first they met the deceased Shiva Kumar, who is also well known to them. Thereafter,

A2 to A4 and the deceased Shiva Kumar went to the house of A1 and at that time

A1 and his cousin Chandra Kala (LW6) were present in the house and on noticing them, the said Chandra Kala (LW6) went away to her house. A2 to A4 remained in the house of A1 for three days. On 30.10.2016, which was Deepavali festival day, at about 12.30 pm, A1 to A4 went to the market on the motorcycle of A2 and on the way, A1 asked his cousin Chandra Kala (LW6) to go to his house. A1 to A4 returned to the house of A1 after purchasing chicken, mutton and liquor in the market and noticed the deceased Shiva Kumar moving closely with Chandra Kala 3 of 14 S.C.No.162 of 2017 (LW6). A1 asked the deceased Shiva Kumar to go out of his house and in that connection, altercation took place between the accused persons and the deceased

Shiva Kumar. Later, A1 asked A2 to A4 to help him in beating and killing the deceased Shiva Kumar for which they agreed. In furtherance of their plan, on 30.10.2016 at 6.30 pm, A1 and A4 went to Shivalayam on a motorcycle bearing registration No.AP-24-AM-0986 belonging to A1, whereas A2 and A3 went to the deceased Shiva Kumar and took him to the said temple. All of them have consumed liquor and A1 to A4 picked up a quarrel with the deceased Shiva

Kumar by saying as to why he is moving closely with Chandra Kala (LW6), beat him with hands indiscriminately and threw him on a stone, as a result, blood oozed from his nose. A1, then, informed the same to the wife of the deceased by name Kammampati Prashanthi (LW1) and took her to Shivalayam. Thereafter,

A1 to A4 escaped from the said place.

3. On the report lodged by the wife of the deceased by name

Kammampati Prashanthi (LW1), Y.Gouri Naidu, Sub-Inspector of Police (LW14) registered a case in Crime No.78 of 2016 for the offence under Section 302 read with Section 34 of the Indian Penal Code and handed over the file to K.Partha

Saradhi, Circle Inspector of Police (LW15) for further investigation. The said

Circle Inspector of Police (LW15) examined the witnesses, conducted scene of offence and inquest panchanamas, effected the arrest of A1 to A4, sent them to the Court, after recording their confessional statements, for remand and after collecting the post mortem examination and FSL reports, he filed charge sheet against A1 to A4 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

4. The above charge sheet was filed before the Court of Judicial

Magistrate of First Class, Nidamanoor, where it was registered as P.R.C No.10 of

2017 for the offence under Section 302 read with Section 34 of the Indian Penal 4 of 14 S.C.No.162 of 2017

Code. The learned Magistrate vide order dated 10.04.2017 committed the case to the Sessions Division, Nalgonda under Section 209 of the Code of Criminal

Procedure. The Hon’ble Sessions Judge, Nalgonda, registered the said case as

S.C.No.162 of 2017 and made over the same to this Court for trial and disposal according to law.

5. Upon appearance of A1 to A4 before this Court and upon consideration of material available on record and after hearing the learned

Additional Public Prosecutor and the learned counsel for the accused persons, this

Court framed a charge under Section 302 read with Section 34 of the Indian Penal

Code against A1 to A4, read over and explained the same to them to which they pleaded not guilty and claimed to be tried.

6. In order to substantiate its case against A1 to A4, the prosecution examined PWs 1 to 13 and got marked Exs.P1 to P21 and MOs 1 to 6.

7. PW1 (Smt.K.Prashanthi) is the wife of the deceased and de facto complainant. She speaks about the accused persons taking away her husband i.e., the deceased, and A1 informing her about the death of her husband and her lodging a report (Ex.P1) with the police. PW2 (P.Saidulu), PW4 (K.Paripoorna

Chary), PW5 (Bheeshma Chary) and PW6 (V.Chandrakala) are cited as circumstantial witnesses. But, they did not support the case of prosecution. PW3 (K.Padmaiah) is also one of the circumstantial witnesses. He states that PW1 informed him over phone that the deceased was beaten and he was fallen on the ground near Shivalayam and then he went to the Government Hospital and saw the dead body of the deceased. PW7 (J.Muthaiah) and PW9 (T.Rama Krishna) are cited as panchas for scene of offence panchanama. But, they did not support the case of the prosecution. PW8 (P.Srinivas Reddy) speaks about his acting as a panch for inquest panchanama (Ex.P9) conducted over the dead body of the deceased. PW10 (Ch.Jangaiah) is stated to be one of the panchas for confession 5 of 14 S.C.No.162 of 2017 and recovery panchanama. PW11 (Dr.A.Satyanarayana), Civil Assistant Surgeon,

K.N. Area Hospital, Nagarjuna Sagar, at the relevant time, speaks about his holding autopsy over the dead body of the deceased and issuing a report under

Ex.P18. PW12 (Y.Gouri Naidu), Sub-Inspector of Police, Vijayapuri Town

Police Station, and PW13 (K.Parthasaradhi), Circle Inspector of Police, Haliya, at the relevant time, are the Investigating Officers in the case.

8. After closure of prosecution evidence, when A1 to A4 were examined under Section 313 of the Code of Criminal Procedure with reference to the incriminating material appearing against them in the evidence of prosecution witnesses, they denied the same. They, however, did not choose to adduce any evidence on their behalf.

9. Heard the learned Additional Public Prosecutor and the learned counsel for the accused persons.

10. Now the point that arises for determination is whether the prosecution is able to prove its case against A1 to A4 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, with which they are charged, beyond reasonable doubt?

11. Point: The case of the prosecution is that A1 to A4 and the deceased

Shiva Kumar are friends and the deceased Shiva Kumar moved closely with the cousin of A1 by name Chandra Kala (PW6), due to which, A1 bore grudge and decided to kill the deceased Shiva Kumar, for which he sought help of A2 to A4 and they agreed for the same and in furtherance of their plan, A1 and A4 went to

Shivalayam whereas A2 and A3 took the deceased to Shivalayam and there all of them have consumed liquor, A1 to A4 picked up a quarrel with the deceased

Shiva Kumar by saying as to why he is moving closely with Chandra Kala (PW6), beat him with hands indiscriminately and threw him on a stone, as a result, blood oozed from his nose and died of said injury. The entire case of the 6 of 14 S.C.No.162 of 2017 prosecution is rested on the evidence of the wife of the deceased i.e., PW1, who stated to have seen the accused persons taking away the deceased, went to the scene of offence on the information given by A1 about the death of her husband and lodged a report (Ex.P1) with the police about the death of her husband. It is now to be seen how far the evidence of PW1 is helpful to the prosecution to connect A1 to A4 with the death of the deceased Shiva Kumar.

12. PW1 has stated that on 30.10.2016, at about 6.00 pm, the accused came to their house and took the deceased along with them; that at about 7.00 pm,

A1 came to their house and told her that his friends beat the deceased and the deceased fell down; that she went to the place of incident i.e., Shivalayam at

Pylon Colony, Nagarjuna Sagar, along with A1 and that PW2/P.Saidulu, PW4/

K.Paripurna Chary and PW5/Bheeshma Chary also came along with them in an auto rickshaw; that she and A1 went there on the bike of A1; that they found the deceased fell in the sand in prone position and they turned him and found sand in his mouth and blood was oozing from his mouth and that she and PW4/

K.Paripurna Chary and PW5/Bheeshma Chary took the deceased in the same auto rickshaw to K.N. Area Hospital, Nagarjuna Sagar. She has further stated that by the time they reached the place of incident, A2 and A3 were there and A1 told her that his frineds i.e., A2 to A4, beat the deceased. She has also stated that after examining the deceased, the duty doctor at K.N. Area Hospital, Nagarjuna Sagar, declared that the deceased was brought dead and that she gave a complaint (Ex.P1) to the police and she knows the contents of Ex.P1.

13. As stated by PW1, on 30.10.2016 at about 6.00 pm the accused came to their house and took the deceased along with them. But, she in her cross- examination has admitted that she did not mention in her complaint that all the accused came to their house on that day at 6.00 pm and took the deceased along with them. She did not even state whether all the accused persons or any of them 7 of 14 S.C.No.162 of 2017 have come and taken away the deceased. As stated by PW1, she went to the place of incident i.e., Shivalayam at Pylon Colony, along with A1 on the bike of A1 and that PWs 2, 4 and 5 also came there in an auto rickshaw. But, PW2 did not speak that A1 also came to the scene of offence along with them and on the other hand he has stated that he does not know A1 to A3 and that himself, PW1 and PW5 went to the place of incident near Shivalayam in the auto rickshaw of PW4. But, surprisingly, PW4 has stated that he does not know PW2 and that himself and

PW5 only went to Shivalayam in the auto rickshaw and further he did not whisper anything about A1 accompanying them to the place of incident. So also, PW5 did not speak about PW2 and A1 accompanying him and PW4 to the place of incident and on the other hand, he has stated that he accompanied PW4 in the auto rickshaw of PW4 and there they found PW1 crying holding the deceased. PW1, in her cross-examination, denied to have not stated before the police that she went to Shivalayam along with A1 on his bike. But, PW13/Investigating Officer, who recorded her statement, has admitted in his cross-examination that PW1 did not state to him that she went to Shivalayam along with A1 on his bike. PW1 denied the suggestion that she did not mention in her complaint (Ex.P1) that A1 was responsible for the death of the deceased. But, Ex.P1/complaint does not contain such a statement. As stated by PW1 in her examination-in-chief, by the time they reached the place of incident, A2 and A3 were there. But, she in her cross- examination has stated that she did not mention in her complaint (Ex.P1) that A3 was near the deceased when they went there and that A2 to A4 left the place after they reached there. Further, PWs 2, 4 and 5, who stated to have accompanied

PW1 to the place of incident, did not speak about the presence of any of the accused persons at the place of incident. On the other hand, PWs 4 and 5 have stated that except the deceased and PW1, no other person was present by the time they went to the place of incident. Further, as admitted by PW13, PWs 1 to 5 did 8 of 14 S.C.No.162 of 2017 not mention the name of A1 in their statements and that he did not examine any of the neighbours to the house of the deceased and PW1 to speak about the accused persons taking away the deceased. It is, thus, obvious that the evidence of PW1 is self-inconsistent and suffers from material omissions and, further, her evidence remained uncorroborated by any other evidence much less by the evidence of

PWs 2, 4 and 5.

14. It is contended by the learned Additional Public Prosecutor that since PW1 has stated that the accused persons have taken away the deceased, it is

for the accused persons to explain as to how the deceased died and since they

failed to explain the same, it can be presumed that they are responsible for the death of the deceased based on ‘last seen together theory’. This Court is unable to accept this contention of the learned Additional Public Prosecutor. As held by the Hon’ble Supreme Court in Anjan Kumar Sarma and others v. State of Assam1 cited by the learned counsel for the accused persons, the circumstance of ‘last seen together’ cannot by itself form the basis of holding the accused guilty of the offence unless the other links have been satisfactorily made out and the circumstances point to the guilt of the accused. In the instant case, as noticed above, except the interested testimony of PW1 there is no other evidence on record to say that the accused persons have taken away the deceased on the date of incident. Further, the evidence of PW1 before the Court, as noticed above, is totally an improvement than her version given in Ex.P1/report as well as the statement given to the police. Thus, absolutely, there is no link or circumstance to say that the deceased was last seen in the company of the accused persons. Hence, the accused persons cannot be held guilty of killing the deceased based on the ‘last seen together’ theory.

15. PW1, in her cross-examination, has stated that Ex.P1 was drafted in 1 2017 SAR (Criminal) 661 9 of 14 S.C.No.162 of 2017 the Police Station at 8.30 pm and she gave the same to the police immediately and that her statement was recorded in the Police Station at about 8.30 pm. But, the evidence of PW12, who registered the First Information Report, is otherwise. He has stated that on 30.10.2016 at 22.00 hours (10.00 pm), he received Ex.P1 from

PW1 and based on the same, he registered a case in Crime No.78 of 2016 for the offence under Section 302 read with Section 34 of the Indian Penal Code and issued First Information Report (Ex.P19). This inconsistency in the evidence of

PW1 and PW12 as regards the time of giving information to the police about the incident creates a serious doubt whether Ex.P1/report stated to have been given by PW1 is the first information to the police about the incident or the police had information about the said incident even prior to that and whether Ex.P1 is a genuine one or not.

16. PW3 has stated that PW1 is his elder brother’s daughter-in-law and on Deepavali festival day of 2016, in the night time, PW1 phoned to him and informed him that her husband was beaten and fallen on the ground near

Shivalayam and that he went to the Government Hospital and saw the dead body of the deceased and that PW1 told him A1 and his friends beat the deceased and killed him. He, in his cross-examination, has stated that he went to

Nagarjunasagar on the next day morning at about 8.00 or 8.30 am and PW1 did not state to him the names of the friends of A1. But, PW1 did not speak of her telling PW3 that A1 and his friends beat her husband and killed him. However, this evidence of PW3 is only hearsay and the same will not in any way connect any of or all the accused persons with the death of the deceased.

17. According to the prosecution, the motive for the accused persons for killing the deceased is that the deceased moved closely with the cousin of A1 by name Chandrakala (PW6), which A1 did not like and, therefore, he with the help of A2 to A4 killed the deceased. But, PW6 has stated that she does not know 10 of 14 S.C.No.162 of 2017 any of A2 to A4 and she does not know the deceased Shiva Kumar and PW1 and that she does not know anything about the case and that the police did not examine her. Hence, she was declared hostile and cross-examined. But, nothing contra was elicited from her that supports the case of the prosecution. She even denied to have stated to the police as in Ex.P6, which is the statement recorded under Section 161 of the Code of Criminal Procedure. It is, thus, obvious that the prosecution failed to prove the motive attributed against A1 to A4 for their alleged killing of the deceased.

18. PW13/Investigating Officer has stated that on 01.11.2016 at 3.00 pm, he apprehended A1 to A4 at the house of A1 at Pylon Colony and when they were about to confess the offence, he secured the presence of PW10/Jangaiah and

LW12/Syed Niranjan Ali and in their presence, he recorded the confessional statements of A1 to A4 individually and from A1, he seized one Samsung mobile phone (MO3) and a Bajaj Discover bike (MO1) under a cover of confession-cum- seizure panchanama; that from A2, he seized a Pulsor Bike (MO2) and a Nokia cell phone (MO4) under a cover of confession-cum-seizure panchanama and from

A3, he seized a Cuba cell phone (MO5) under a cover of confession-cum-seizure panchanama. He has further stated that after the said confessional statements and seizure, A1 to A4 lead them to the scene of offence and from there, he seized

MO6/stone at their instance under Ex.P17, seizure panchanama. PW10, in his examination-in-chief, has supported this version of PW13. But, he, in his cross- examination, has admitted that he goes to the Police Station now and then and that he might have given evidence in 30 to 40 cases. From this, it is obvious that

PW10 is a stock witness of the police and hence, his evidence cannot be believed to say that the accused persons have confessed before him and in pursuance of the said confession, MOs 1 to 6 were seized from them. Even otherwise, the alleged confession made by the accused persons cannot be used against them in view of 11 of 14 S.C.No.162 of 2017 the bar contained in Sections 25 and 26 of the Indian Evidence Act, as, the said confession was stated to have been made whilst they were in the custody of

PW13, who is a police officer.

19. PW13 has stated that he proceeded to the scene of offence i.e., a place near Shivalayam, Nagarjunasagar, on 31.10.2016 and there he conducted scene of offence panchanama (Ex.P20) and drafted a rough sketch (Ex.P21) in the presence of PW7 and 9. But, PWs 7 and 9 did not support this version of PW13.

They have stated that no panchanam was conducted in their presence and when they went to Police Station in connection with the death of a buffalo of PW7, the police obtained their signatures on white papers. However, even if it is believed to be true that PW13 has visited the scene of offence and conducted the scene of offence panchanama and drafted a rough sketch there, the same would not in any way connect the accused persons with the death of the deceased.

20. It is in the evidence of PW13 that he proceeded to K.N. Area

Hospital, Nagarjunasagar and there he observed the dead body in the mortuary and held inquest (Ex.P9) over the dead body of the deceased in the presence of

PW8 and Shankaraih. Pw8 has also stated about his acting as a panch for inquest panchanama conducted over the dead body of the deceased. PW13 has further stated that he sent a requisition to the Medical Officer, K.N. Area Hospital,

Nagarjunasagar for post mortem examination. PW11, doctor, has supported this evidence of PW13 by stating that on the requisition of the police, he conducted autopsy over the dead body of the deceased on 31.10.2016 and issued a report under Ex.P18 by opining that the death was due to shock due to internal hemorrhage of the left parietal region. But, mere proving the fact of conducting inquest and autopsy over the dead body of the deceased would not be suffice to say that all or any of the accused persons have caused the death of the deceased.

21. As noticed above, except PW1 no other witness has spoken 12 of 14 S.C.No.162 of 2017 anything against the accused persons. The evidence of PW1 also cannot be said to be reliable and trustworthy, as, as noticed above, the same is self-inconsistent and suffers from material omissions. The evidence of PWs 11 to 13, who are official witnesses, is formal in nature and the same does not in any way connect the accused persons with the offence alleged.

22. According to PW13, he seized MO1 i.e., motorcycle bearing registration No.AP-24-AM-0986, and MO3/Samsung cell phone from A1; MO2/ motorcycle bearing registration No.AP-11-AG-9217 and MO4/Nokia cell phone from A2 and MO5/Cuba cell phone from A3. But, the accused persons did not claim MOs 1 to 5 as of them. They even denied the seizure of MOs 1 to 5 from them by putting a suggestion to PW13. Hence, MOs 1 to 5 are to be confiscated to the State.

23. For the reasons recorded above, this Court is of the opinion that the prosecution failed to prove its case against A1 to A4 beyond reasonable doubt and hence, they are to be acquitted of the offence under Section 302 read with Section 34 of the Indian Penal Code, with which they are charged.

24. In the result, A1 to A4 are found not guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, with which they are charged, and they are, accordingly, acquitted of the said offence, under Section 235 (1) of the Code of Criminal Procedure. Their bail bonds shall stand cancelled after expiry of appeal time. MOs 1 to 5 vide C.P.No.6 of 2019 shall be confiscated to the State and MO6 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer (Gr.I) and after transcribed by him, corrected

and pronounced by me in the open Court, on this the 26th day of May, 2022.

Sd/-

VIII Additional Sessions Judge, Miryalaguda.

13 of 14 S.C.No.162 of 2017

Appendix of evidence Witnesses Examined

On behalf of the prosecution:

PW1LW1Smt.K.Prashanthi, De facto complainant. PW2LW2P.Saidulu, Circumstantial witness. PW3LW3K.Pandaiah, Circumstantial witness PW4LW4K.Paripurna Chary, Circumstantial witness PW5LW5Bheeshma Chary, Circumstantial witness PW6LW6N.Chandra Kala, Circumstantial witness PW7LW7J.Muthaiah, Panch for scene of offence panchanama PW8LW9P.Srinvias Reddy, Panch for inquest panchanama PW9LW8T.Rama Krishna, Panch for scene of offence panchanama PW10LW11Ch.Jangaiah, Panch for confession and recovery panchanama PW11LW13Dr.A.Satyanarayana, Conducted post mortem examination PW12LW14Y.Gouri Naidu, S.I of Police, 1st Investigating officer PW13LW15K.Parthasaradhi, C.I of Police, 2nd Investigating Officer

On behalf of the accused: -None-

Exhibits marked

On behalf of the prosecution:

Ex.P1Report lodged by PW1 dated 30.10.2016 Ex.P2Relevant portion in the statement of PW2 recorded under Section 161 of the Code of Criminal Procedure. Ex.P3Relevant portion in the statement of PW2 recorded under Section 161 of the Code of Criminal Procedure. Ex.P4Statement of PW4 under Section 161 of the Code of Criminal Procedure Ex.P5Statement of PW5 under Section 161 of the Code of Criminal Procedure Ex.P6Statement of PW6 under Section 161 of the Code of Criminal Procedure Ex.P7Signature of PW7 on scene of offence panchanama Ex.P8Signature of PW7 on rough sketch Ex.P9Inquest panchanama Ex.P10Signature of PW9 on scene of offence panchanama Ex.P11Signature of PW9 on rough sketch Ex.P12Relevant portion in confession panchanama of A1 Ex.P13Relevant portion in confession panchanama of A1 Ex.P14Relevant portion in confession panchanama of A2 Ex.P15Relevant portion in confession panchanama of A3 Ex.P16Relevant portion in confession panchanama of A4 Ex.P17Seizure panchanama Ex.P18Post mortem examination report Ex.P19First information report Ex.P20Scene of offence panchanama Ex.P21Rough sketch

On behalf of the accused: -Nil- 14 of 14 S.C.No.162 of 2017

Material Objects Marked

MO1Motorcycle bearing registration No.AP-24-AM-0986 MO2Motorcycle bearing registration No.AP-11-AG-9217 MO3Samsung cellphone MO4Nokia cell phone MO5Cuba cell phone MO6Stone

Sd/-

VIII Additional Sessions Judge, Miryalaguda. AK *

1 of 12 A.S.No.27 of 2019

IN THE COURT OF V ADDITIONAL DISTRICT JUDGE AT

MIRYALAGUDA, NALGONDA DISTRICT

Thursday, the 2nd day of February, 2023

Present: Sri R.Raghunath Reddy,

V Additional District Judge,

Miryalaguda.

A.S.No.27 of 2019

Between:

Virigineni Ramesh, S/o Venkataratnam, Aged 43 years, Occ: Business, R/o Vijaya Laxmi Pawn Brokers, R/o H.No.15-131/5, Kummari Bazar, Narsaraopet Town and Mandal, Guntur District. …. Appellant/defendant

AND

Vinjam Prameela, W/o Ravi, Aged 40 years, Occ: Housewife and Business, R/o H.No.18-1226, Ashoknagar, Miryalaguda Town and Mandal, Nalgonda District.

… Respondent/plaintiff

On being aggrieved by the decree and judgment passed by the Court of Senior Civil

Judge, Miryalaguda, dated 01.05.2018

in

O.S.No.45 of 2015

Between:

Vinjam Prameela, W/o Ravi, Aged 40 years, Occ: Housewife and Business, R/o H.No.18-1226, Ashoknagar, Miryalaguda Town and Mandal, Nalgonda District. …. Plaintiff AND

Virigineni Ramesh, S/o Venkataratnam, Aged 43 years, Occ: Business, R/o Vijaya Laxmi Pawn Brokers, R/o H.No.15-131/5, Kummari Bazar, Narsaraopet Town and Mandal, Guntur District. … Defendant

This appeal suit is coming before me for final hearing on 03.01.2023 in the presence Sri Y. Chandra Sekhar Reddy, Advocate for the appellant and of Sri G. Sai Kumar Yadav, Advocate for the respondent and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:

:: JUDGMENT ::

This appeal is directed by the defendant in O.S.No.45 of 2015 on the file of the

Court of Senior Civil Judge, Miryalaguda, against the judgment and decree, dated 01.05.2018, rendered in the said suit, whereby, he was directed to pay the suit amount with interest and costs to the respondent/plaintiff.

2 of 12 A.S.No.27 of 2019

2. For the sake of convenience, the parties herein will be referred to as they stand in the suit before the learned trial Court i.e., „the plaintiff‟ and „the defendant‟.

3. Undisputed facts are: The plaintiff and the defendant are own sister and brother. On 04.10.2013, the defendant has borrowed an amount of Rs.3,60,000/- from the plaintiff by executing a promissory note promising to repay the said amount with interest at Rs.1.50 paise per hundred per month.

4. The case of the plaintiff is that the defendant has borrowed the amount and executed the promissory note at Miryalaguda and that he did not repay the said amount as agreed and thereby, he became due of Rs.4,59,980/- by the date of filing of the suit and hence, he is liable to pay the said amount with future interest thereon and costs.

5. As seen from the written statement, the case of the defendant is that he has borrowed the amount and executed the promissory note in favour of the plaintiff at

Narsaraopet, but, not at Miryalaguda and that one Sathuluri Chandra Shekar Rao has scribed the promissory note and G.Ch. Venkataiah signed the said promissory as a witness and, therefore, the Court at Miryalaguda has no territorial jurisdiction to entertain and try the suit. His further case is that on 07.06.2014, when the plaintiff came to his house at Narsaraopet, he repaid the amount borrowed together with interest, totally Rs.4,03,700/-, to the plaintiff in the presence of Thatikonda Srinivasa

Rao and Puchakayala Ravindra and one Gonuguntla Venkateshwarlu scribed Chellu

Raseedu (receipt) and the plaintiff signed the said receipt and Thatikonda Srinivasa

Rao and Puchakayala Ravindra signed the said receipt as witnesses and when he asked the plaintiff to return the promissory note, she told that she forgot to bring the promissory note and she will return the same on her next visit to Narsaraopet and, therefore, he is not in due of any amount much less the suit amount to the plaintiff and hence, the suit is liable to be dismissed with costs.

6. On the basis of above rival pleadings, the learned trial Court framed the following issues for trial:

3 of 12 A.S.No.27 of 2019

1. Whether the defendant discharged the debt due under suit promissory note?

2. Whether this Court is having territorial jurisdiction to try this matter?

3. Whether the plaintiff is entitled to get decree for suit claimed amount?

4. To what other relief?

7. Since the defendant took a plea of discharge, he was asked to lead the evidence first. He himself was examined as DW.1 and got marked Exs.B1 to B3. He also got examined the purported scribe and the attestors of the receipt (Ex.B1) as

DWs.2 to 4 respectively and the scribe of Ex.A1/promissory note as DW.5. On the other hand, the plaintiff herself was examined as PW.1 and got marked Exs.A1 to A8.

She got examined the purported attestor of Ex.A1/promissory note as PW.2.

8. Upon appreciation of oral and documentary evidence adduced by both the parties, the learned trial Court disbelieved the case of the defendant that he has repaid the amount borrowed from the plaintiff and consequently, by the impugned judgment, directed the defendant to pay the suit amount with interest and costs to the plaintiff, against which, the defendant filed this appeal.

9. It is contended by the learned counsel for the defendant that the defendant has repaid the amount borrowed from the plaintiff in the presence of

DWs.2 to 4 and the plaintiff, in turn, passed a receipt vide Ex.B1 acknowledging the receipt of said amount and DWs.2 to 4 have categorically stated the said fact in their evidence before the Court and that the plaintiff did not produce any evidence contradicting the evidence of DWs.2 to 4, but, the learned trial Court did not appreciate the evidence available on record and the factual situation in right perspective and it decreed the suit erroneously. It is further contended by him that as stated by DW.2, scribe of suit promissory note/Ex.A1, the plaintiff lent the amount to the defendant at Narsaraopet, which is not within the local limits of jurisdiction of the learned trial Court, and that though a separate issue was framed in that regard, the learned trial Court did not record any finding thereof. The learned counsel, accordingly, prayed to allow the appeal, set aside the impugned judgment and decree and dismiss the suit.

4 of 12 A.S.No.27 of 2019

10. On the other hand, the learned counsel for the plaintiff filed written arguments by contending that the plaintiff is a resident of Miryalaguda and the defendant along with DW.5 came to the plaintiff at her house at Miryalaguda and borrowed the amount under Ex.A1, promissory note, and therefore, the learned trial

Court has territorial jurisdiction to entertain and try the suit. It is further contended by him that the evidence of DWs.2 to 4 as regards the defendant repaying the amount to the plaintiff and the plaintiff passing a receipt vide Ex.B1 is contradictory to each other and that the learned trial Court appreciated the factual situation and the evidence available on record in right perspective and decreed the suit rightly. It is also contended by him that the learned trial Court did not commit any illegality or irregularity in passing the impugned judgment and, therefore, this Court cannot and need not interfere with the said judgment of the learned trial Court. He, accordingly, prayed to dismiss the appeal.

11. In view of the above rival pleadings, the following points would arise for determination:

1. Whether the trial Court i.e., the Court of Senior Civil Judge, Miryalaguda, has territorial jurisdiction to entertain and try the suit?

2. Whether the defendant has repaid the amount borrowed under Ex.A1, promissory note, to the plaintiff?

3. Whether the plaintiff is entitled to the suit amount from the defendant?

4. Whether the impugned judgment and decree suffer from any illegality or irregularity warranting interference by this Court?

5. To what relief?

12. The parties did not adduce any additional evidence in this appeal.

13. Point No.1: Whether the trial Court i.e., the Court of Senior Civil

Judge, Miryalaguda, has territorial jurisdiction to entertain and try the suit?

It is not in dispute that the defendant has borrowed an amount of Rs.3,60,000/- from the plaintiff on 04.10.2013 and executed Ex.A1, promissory note, for the said amount in favour of the plaintiff. But, from the rival pleadings, the issue is as to where the defendant has borrowed the amount and executed Ex.A1, promissory note, i.e., whether at the house of the plaintiff at Miryalaguda or at the house of the defendant at

Narsaraopet. The plaintiff/PW.1 in her evidence has stated that the defendant came to 5 of 12 A.S.No.27 of 2019 her house at Miryalaguda and borrowed the amount and executed the promissory note in her favour and at that time, G. Ch. Venkataiah, Ch. Kotaiah (PW.2) and Sathuloori

Chandra Shekhar Rao (DW.5) were present and DW.5 has scribed the promissory note as per the instructions of the defendant and G. Ch. Venkataiah and PW.2 have attested the promissory note as witnesses. PW.2 also has stated so in his evidence. He denied the suggestion that he put the signature on Ex.A1 just before filing the suit and that he was not present at the time of execution of Ex.A1, promissory note, by the defendant.

On the other hand, the defendant/DW.1 in his evidence has reiterated his case that he has borrowed the amount from the plaintiff at Narsaraopet, Guntur District in the presence of G.Ch. Venkataiah and Sathuloori Chandra Shekhar Rao (DW.5) and executed Ex.A1, promissory note, and that DW.5 has scribed the promissory note and

G. Ch. Venkataiah has signed the promissory note as one of the witnesses. DW.5 also has stated that he is the scribe of Ex.A1, promissory note, and the transaction under

Ex.A1 took place at Narsaraopet. He, in his cross-examination, has stated that he is working as a clerk under DW.1. He has further stated that the recitals in Ex.A1 do not show that the transaction took place at Narsaraopet. He denied the suggestion that he along with DW.1 came to Miryalaguda and scribed Ex.A1.

14. It is a common knowledge that, normally, the borrower goes to the place of the creditor and borrows the amount. In the instant case, admittedly, the plaintiff is a resident of Miryalaguda, which is within the local limits of jurisdiction of the learned trial Court i.e., the Court of Senior Civil Judge, Miryalaguda. So, a presumption also can be drawn that the defendant has borrowed the amount from the plaintiff at her house at Miryalaguda, unless the contrary is proved. To prove his contrary case that he has borrowed the amount from the plaintiff at his place i.e., at Narsaraopet, he got examined DW.5, who is, admittedly, the scribe of Ex.A1, promissory note. But, as stated by DW.5, in his cross-examination, he is working as a clerk under the defendant (DW.1). So, normally, he would support the defendant/DW.1. Further, it is to be noted that the defendant did not state as to on what occasion and under what circumstances 6 of 12 A.S.No.27 of 2019 the plaintiff came to his place and lent the amount. Another thing to be noted is that it was not even suggested to the plaintiff/PW.1 that the defendant borrowed the amount from her at Narsaraopet, but, not at Miryalaguda. Further, it is not that there is any mention in Ex.A1, promissory note, that the transaction covered by Ex.A1, promissory note, took place at Narsaraopet. In the circumstances, it can be taken that the transaction under Ex.A1 took place at Miryalaguda and consequently, it can be held that the learned trial Court i.e., the Court of Senior Civil Judge, Miryalaguda, has territorial jurisdiction to entertain and try the suit. This point is, therefore, answered in favour of the plaintiff and against the defendant.

15. Point No.2: Whether the defendant has repaid the amount borrowed under Ex.A1, promissory note, to the plaintiff?

The defendant took a specific plea that on 07.06.2014, when the plaintiff came to his house at Narsaraopet, he repaid the amount covered by Ex.A1, promissory note, together with interest, totally Rs.4,03,700/-, to her (plaintiff) in the presence of DWs.2 to 4 and DW.2 has scribed a Chellu Raseedu (receipt) (Ex.B1) in respect of the said transaction and the plaintiff has signed the said receipt acknowledging the receipt of said amount from the defendant and DWs.3 and 4 have signed the said receipt (Ex.B1) as witnesses, which, the plaintiff is vehemently denying. According to her, the defendant did not repay the amount borrowed and that the signature of the executant appearing on Ex.B1/receipt does not belong to her and that the defendant in collusion with DWs.2 to 4 has created the said receipt only to evade the repayment of the amount borrowed. So, it is for the defendant to prove that he has repaid the amount to the plaintiff and the plaintiff, in turn, passed a receipt thereof under Ex.B1.

16. The defendant/DW.1, in his evidence, has reiterated his case that on 06.06.2014, the plaintiff demanded him to repay the amount borrowed under the suit promissory note by saying that she is coming to Narsaraopet on 07.06.2014 for executing a release deed in favour of one Smt. Gurram Subhashini; that on 06.06.2014, he was having Rs.1,00,000/- and odd with him and so, he went to his bank i.e., Karur 7 of 12 A.S.No.27 of 2019

Vyshya Bank, Narsaraopet, on 06.06.2014 and withdrew Rs.3,00,000/- for paying the same to the plaintiff; that the plaintiff came to Narsaraopet on 07.06.2014 and executed a release deed bearing document No.4067/2014, dated 07.06.2014, in favour of Smt.

Gurram Subhashini and on the same day, she (plaintiff) came to his house at

Narsaraopet and in the presence of two witnesses by name Thatikonda Srinivasa Rao (DW.4) and Puchakayala Ravindra (DW.3) he paid the amount of Rs.4,03,700/- to the plaintiff and Gonuguntla Venkateshwarlu (DW.2) scribed a Chellu Rasheedu/receipt (Ex.B1) for the said amount and the plaintiff signed the said receipt in the presence of above witnesses and when he asked the plaintiff to return the suit promissory note, she replied that she forgot to bring the same and she will return the same on her next visit to Narsaraopet and, thereafter, disputes arose between him and the family members of the plaintiff and, therefore, she filed the suit by misusing the suit promissory note to gain wrongfully for herself and cause wrongful loss to him. DW.2, who is the father-in- law of the defendant/DW.1, has spoken about his scribing Ex.B1/receipt and DWs.3 and 4 have spoken about their attesting Ex.B1/receipt as witnesses.

17. According to the defendant, when he repaid the amount to the plaintiff under Ex.B1, the plaintiff did not bring the suit promissory note i.e., Ex.A1, and she assured to return the same to him on her next visit to Narsaraopet. But, DW.2, in his cross-examination, has stated that he has seen the promissory note and made calculation and DW.4 has stated that in his presence calculation was made by the plaintiff and defendant by seeing the promissory note, whereas, DW.3 has stated that the plaintiff did not bring the promissory note and by seeing in a day book, calculation was made when the defendant gave the details. Another thing to be noted is that DWs.3 and 4, in their cross-examination, have stated that the plaintiff put her signature on

Ex.B1 in Telugu, but, as seen from Ex.B1 and as stated by DW.2, the signature stated to be of the plaintiff on Ex.B1/receipt is in English. As stated by the defendant/DW.1 and DWs.2 and 3, along with them DW.4 was also present when the defendant/DW.1 paid the amount of Rs.4,03,700/- to the plaintiff and the plaintiff passed a receipt 8 of 12 A.S.No.27 of 2019 (Ex.B1) thereof. DW.4 also, in his examination-in-chief, has stated so. But, he, in his cross-examination, has stated that after Ex.B1 was scribed, he was called when he visited a rice mill opposite to the office of the defendant/DW.1 and by the time, he went there, all the three put their signatures on Ex.B1 and later, he attested Ex.B1.

Admittedly, DW.2 is father-in-law of the defendant/DW.1 and he is residing with the defendant/DW.1 and DW3 is a close friend and DW4 is a cousin of the defendant/DW1. All the above inconsistencies improbablise the case of the defendant that he has repaid the amount due under Ex.A1, promissory note, to the plaintiff and the plaintiff, in turn, passed a receipt (Ex.B1) thereof and on the other hand, the said circumstances and the relationship of DWs.2 to 4 with the defendant/DW.1 probablise the case of the plaintiff that the defendant in collusion with DWs.2 to 4 has created and fabricated Ex.B1/receipt only to evade the payment of the amount due under Ex.A1, promissory note. The learned trial Court, having noticed the above discrepancies/ inconsistencies in the evidence of DWs.2 to 4, rightly disbelieved their evidence.

18. It is a fact that the plaintiff got issued a legal notice dated 13.11.2014 (Ex.A2) calling upon the defendant to repay the amount covered by Ex.A1/promissory note. It is also a fact that the defendant got issued a reply notice dated 27.11.2014 setting out his plea of repayment and denying his liability to pay the amount to the plaintiff and the same was received by the advocate for the plaintiff. But, as admitted by the defendant/DW.1, in his cross-examination, he did not mention in the said reply notice that DWs.2 to 4 were present at the time of execution of Ex.B1 by the plaintiff.

Further, if really, the defendant has repaid the amount and the plaintiff did not return the promissory note, the defendant ought to have got issued a notice demanding the plaintiff to return the promissory note. But, admittedly, he did not issue any such notice. In the reply notice dated 27.11.2014 also, there is no such demand by the defendant. Another thing to be noted is that the plaintiff got issued a re-reply notice

dated 04.12.2014 (Ex.A5) denying the repayment of the amount borrowed by the

defendant and requiring the advocate for the defendant to supply a copy of alleged 9 of 12 A.S.No.27 of 2019 receipt dated 07.06.2014. But, the defendant is denying the receipt of Ex.A5, notice, by his advocate. To prove that Ex.A5/notice was received by the advocate for the defendant, the plaintiff has filed Exs.A6 and A7, letters addressed by her advocate to the Superintendent of Post Offices, and Ex.A8/reply given by the Superintendent of

Post Offices. As seen from Ex.A8, Ex.A5/notice, which was addressed to the advocate of the defendant i.e., Sri K. Buchi Danta Chari, Upstairs, Kalam Jewellers, Fareed

Complex, Arundalpet, Narsaraopet, Guntur District, Andhra Pradesh, was delivered on 10.12.2014. It is not the case of the defendant that his advocate, by the date of issuance of Ex.A5/notice, was not residing at the said address. On the other hand, he, in his cross-examination, has stated that his advocate K.Buchi Danta Chari did not change his address. If really, his advocate did not receive Ex.A5/notice, he (defendant) ought to have at least produced a letter or certificate to the said effect from his advocate. But, he did not produce any such letter or certificate. These things also improbablise the case of the defendant that he has repaid the amount to the plaintiff and the plaintiff in turn passed a receipt thereof vide Ex.B1.

19. It is contended by the learned counsel for the defendant that the defendant in his written statement itself has specifically pleaded that he has repaid the amount to the plaintiff on 07.06.2014 itself and the plaintiff has passed a receipt thereof and if really, the plaintiff had not received the said amount from the defendant, she would have filed a rejoinder denying the said plea of the defendant, but, admittedly, she did not file any such rejoinder and, therefore, it can be taken that the plaintiff has admitted the plea of discharge taken by the defendant without requiring any further proof thereof. It is true that the plaintiff did not file any rejoinder denying the plea of discharge taken by the defendant. But, it is to be noted that the law does not require the plaintiff to deny the case pleaded by the defendant in his written statement either by filing rejoinder or additional pleadings. On the other hand, Order VIII Rule 5 of the Code of Civil Procedure requires the defendant to specifically deny the allegation of fact made in the plaint, otherwise, it shall be deemed that he has admitted 10 of 12 A.S.No.27 of 2019 the case of the plaintiff. In this regard, it is necessary to notice a judgment of the

Hon‟ble High Court of Andhra Pradesh in T. Bheem Reddy and another v. Smt. P.

Laxmi Bai 1 cited by the learned counsel for the plaintiff, wherein, at para No.23, the

Hon‟ble High Court held as under:

“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if not specifically denied they are deemed to have been admitted under Order VIII

Rule 5 CPC. But, that is applicable only to the plaint averments, but there is no such provision under CPC by which the plaintiff is obliged to deny the averments made by the defendants in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in the written statement. Under order

VIII Rule 9 CPC, no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court.” 20. As held by the Hon‟ble High Court in the above decision, the law does not compel the plaintiff to file a rejoinder challenging the allegations made in the written statement and the failure to file rejoinder cannot be treated as an admission of the plea in the written statement. So, merely because the plaintiff did not file rejoinder denying the plea of discharge taken by the defendant in his written statement, it cannot be treated as an admission of said plea of the defendant by the plaintiff.

21. To prove his case that on 07.06.2014, he was ready with money and the plaintiff came to his house at Narsaraopet, the defendant is relying on Exs.B2 and B3.

Ex.B2 is statement of account relating to the bank account of the defendant with Karur

Vysya Bank Limited, Narsaraopet, for the period from 01.04.2014 to 31.03.2015 and as seen from this statement, the defendant had withdrawn an amount of Rs.3,00,000/- on 06.06.2014. Ex.B3 is certified copy of mortgage release deed bearing document

No.4067/2014, dated 07.06.2014 executed by the plaintiff in favour of one Gurram

Subhashini at the office of Sub-Registrar, Narsaraopet. The plaintiff is not disputing 1 2012 (5) ALT 345 11 of 12 A.S.No.27 of 2019 the fact of her going to Narsaraopet on 07.06.2014 and executing Ex.B3. But, she is specifically denying that on that day, she went to the house of the defendant at

Narsaraopet and the defendant repaid the amount. So, it is for the defendant to prove his said plea. But, as noticed above, he failed to prove the same. It is no doubt true that as seen from Ex.B2, he has withdrawn Rs.3,00,000/- from the bank. But, it does not mean that he has paid the said amount to the plaintiff. As stated by him in his cross- examination, the bank account under Ex.B2 relates to his personal and business transactions and he withdraws and deposits the amount every month. So, as rightly contended by the learned counsel for the plaintiff, the defendant might have withdrawn the said amount of Rs.3,00,000/- on 06.04.2014 for his personal and business purposes.

22. It is next contended by the learned counsel for the defendant that during the cross-examination of DW.2, the advocate for the plaintiff suggested to him that they obtained the signature of the plaintiff on a plain white paper and fabricated Ex.B1 as a receipt and, in fact, no repayment was made by the defendant to PW.1 at any time, which suggests that the signature of the executant appearing on Ex.B1/receipt belongs to the plaintiff and if that be so, it can be taken that the plaintiff has passed

Ex.B1/receipt after receiving the amount mentioned therein from the defendant. It is true that such a suggestion was given to DW.2. But, the case of the plaintiff as regards the alleged repayment made by the defendant is to be considered in its entirety.

Through Ex.A5/re-reply notice itself, she has specifically denied the case of the defendant that he repaid the amount and she passed a receipt thereof. In the plaint also, she has denied the said case of the defendant. It was also suggested to DWs.1, 3 and 4 that they have created and fabricated Ex.B1. So, based on a stray suggestion put to

DW.2, the plea of discharge taken by the defendant cannot be held to have been admitted by the plaintiff.

23. For the reasons recorded above, in the opinion of this Court, the defendant failed to prove his case that he repaid the amount admittedly borrowed by him under Ex.A1 from the plaintiff. This point is answered accordingly.

12 of 12 A.S.No.27 of 2019

24. Point No.3: Whether the plaintiff is entitled to the suit amount from the defendant?

Admittedly, the defendant has borrowed Rs.3,60,000/- from the plaintiff by executing Ex.A1, promissory note. As held in point No.2, he failed to establish his case that he has repaid the said amount to the plaintiff. Therefore, the plaintiff would be entitled to the amount due under Ex.A1, promissory note, together with interest i.e., the suit amount, from the defendant. This point is answered accordingly.

25. Point No.4: Whether the impugned judgment and decree suffer from any illegality or irregularity warranting interference by this Court?

The learned trial Court disbelieved the case of the defendant that he has repaid the amount to the plaintiff and consequently, decreed the suit directing him to pay the suit amount to the plaintiff. In view of the findings recorded on points No.2 and 3, this

Court is also of the view that the defendant failed to prove his plea of discharge and, therefore, the plaintiff is entitled to the suit amount from him. This Court does not find any illegality or irregularity in the impugned judgment passed by the learned trial

Court and hence, the same needs no interference by this Court. This point is answered accordingly.

26. Point No.4: To what relief?

In the result, the appeal is dismissed, with costs, confirming the judgment and decree dated 01.05.2018 passed by the Court of Senior Civil Judge, Miryalaguda, in O.S.No.45 of 2015.

Dictated to the Stenographer (Gr.I) and after transcribed by her, corrected and

pronounced by me in the open Court, on this the 2nd day of February, 2023.

Sd/-

V Additional District Judge, Miryalaguda. Appendix of evidence (Witnesses examined and exhibits marked) -Nil-

Sd/-

V Additional District Judge, Miryalaguda. MUR *

1 of 13 Crl.Appeal No.10 of 2019

IN THE COURT OF VIII ADDITIONAL SESSIONS JUDGE:

MIRYALAGUDA

Monday, the 30th day of May, 2022

Present: Sri R.Raghunath Reddy,

VIII Additional Sessions Judge, Miryalaguda.

Crl.Appeal No.10 of 2019

Between: Manduri Naga Mohan Rao S/o. John Kotaiah, Age: 40 years, Occ: Government Teacher, R/o. H.No.21-92, Maqdoomnagar, Huzurnagar Town and Mandal, Suryapet District. Appellant/accused No.2 AND

The State Represented by Sub-Inspector of Police, Miryalaguda I Town Police Station. Respondent/complainant

On being aggrieved by the judgment of the Court of I Additional Judicial

Magistrate of First Class, Miryalaguda dated 28.12.2018

in

C.C.No.427 of 2013

Between: The State Represented by Sub-Inspector of Police, Miryalaguda I Town Police Station. … Prosecution

And

1Nampally Jakka Rao S/o. Lingaiah, Age: 40 years, Occ: Agriculture and Business, R/o. Plot No.20, Krishna Manasa Colony, Miryalaguda Town N/o. Kalvalapalem village, Vemulpally Mandal, Nalgonda District. 2Manduri Naga Mohan Rao S/o. John Kotaiah, Age: 40 years, Occ: Government Teacher, R/o. H.No.21-92, Maqdoomnagar, Huzurnagar Town and Mandal, Suryapet District. 3Karikunta Prem Kumar S/o. Narayana, Age: 39 years, Occ: Senior Assistant, MPDO Office, Chinthapally Mandal, R/o. H.No.14-48, Srinagar Colony, Huzurnagar, Suryapet District. … Accused No.1 to 3

This appeal is coming before me for final hearing on 19.05.2022 in the presence of Sri P.Ravindra Reddy, Advocate, for the appellant/A2 and of Sri

M.Manohar Reddy, Additional Public Prosecutor for the respondent/ complainant and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:

2 of 13 Crl.Appeal No.10 of 2019

:: JUDGMENT ::

Accused No.2 by name Manduri Naga Mohan Rao in C.C.No.427 of 2013 on the file of the Court of I Additional Judicial Magistrate of First Class,

Miryalaguda, filed this appeal under Section 374 of the Code of Criminal

Procedure against the judgment dated 28.12.2018 rendered in the said case, whereunder he was convicted for the offences under Sections 420, 464, 467, 468 and 471 of the Indian Penal Code and sentenced to undergo imprisonment for one year and pay a fine of Rs.500/- per count, in default of payment of fine, to undergo simple imprisonment for 15 days per count.

2. Ch.Satyanarayana, Sub-Inspector of Police, Miryalaguda I Town

Police Station (LW9) laid a charge-sheet against A1/Namapally Jakka Rao, A2/

Manduri Naga Mohana Rao and A3/Karlakunta Prem Kumar in Crime No.71 of 2012, from which the case of the prosecution, in brief, is: A1 is a resident of

Miryalaguda Town and he worked as Manager in Sri Sai Venkateshwara Chit

Funds Private Limited, Miryalaguda branch from 2007 to October 2011 and thereafter, he started doing money lending business. When he was working in the

Chit Fund Company, A2, who is working as teacher in Z.P.High School,

Mattampally, and A3, who is working as Senior Assistant in the office of M.P.D.O

Chinthapally Mandal, joined as members in a chit conducted by the said chit fund company and there they had acquaintance with A1. Out of the said acquaintance, once A3 obtained a loan of Rs.25,000/- from A1, for which A2 stood as a guarantor. Some days thereafter, A3 again asked A1 to lend some more amount, for which A1 refused by saying that he did not repay the amount borrowed earlier.

A1, however, promised A3 that he will provide loan to another government employee. Then, A3 approached A2 and requested him to obtain loan from A1 and give the amount to him, for which A2 has agreed. A2 and A3 together approached A1 in the year 2007 and requested him to arrange an amount of 3 of 13 Crl.Appeal No.10 of 2019

Rs.30,000/- as loan to A2, and A1 while agreeing to arrange the said amount asked for the salary certificate , ID card and cheque of A2. A2 informed A3 that he has no cheque book. A3, during his tenure as typist in the office of M.P.D.O,

Mattampally, maintained a cheque book of the office with account

No.52121700566 issued by State Bank of Hyderabad, Huzurnagar. So, he stole a blank cheque bearing No.902098 from the said cheque book and gave the same to

A2 by saying that the said cheque relates to his account and asked A2 to use the said cheque as of him. A2, accordingly, signed the said blank cheque and handed over the same to A1 along with other documents as security. A2 signed a blank promissory note also and A3 signed the said blank promissory note as a guarantor.

A3 agreed to repay the loan amount to A1. Thereafter, A1 provided a loan of

Rs.30,000/- to A2 and at that time, A1 obtained the signature of A2 on a blank paper duly affixed with a revenue stamp. A2 handed over the said amount of

Rs.30,000/- to A3. Thereafter, in spite of repeated demands to repay the amount borrowed, A2 did not repay the same and on the other hand, he stated to A1 that while obtaining the loan, A3 has agreed to repay the loan amount and, therefore, he can ask A3 to repay the amount. But, A1 did not heed the said words of A2 and insisted him to repay the amount borrowed. On 05.01.2012, A2 has agreed to repay the loan amount to A1 on 15.01.2012. But, A1 forced A2 to give a written undertaking to the said effect. Due to fear, A2 gave an undertaking to A1 agreeing to repay the loan amount on 15.01.2012. But, he did not repay the same. So, A1 decided to collect Rs.1,00,000/- instead of Rs.30,000/- from A2. In furtherance of his said decision, on 20.04.2012, he filled up the blank cheque bearing

No.902098 given by A2 in his own hand writing for Rs.1,00,000/- with the date 13.04.2012 and presented the same to his bank i.e., Axis Bank, Miryalaguda, for realization. Rini Mathews (PW3), Manager of the said bank, sent the cheque to

State Bank of Hyderabad, Huzurnagar for realization. A.Giri Babu (PW6), 4 of 13 Crl.Appeal No.10 of 2019

Manager of State Bank of Hyderabad, Huzurnagar Branch, verified the cheque and found that the said cheque relates to the account of the office of M.P.D.O,

Mattampally, and the signature of the drawer was also found not tallied. So, PW6 retuned the cheque to PW3 unpaid with an endorsement “title of account required/title of account wrong/incomplete. On 07.05.2012, PW3 called A1 and returned the cheque to him and A1, in turn, informed A2 and A3 over phone about the return of cheque unpaid. On the report lodged by J.Venkateshwara Rao,

M.P.D.O, Mattampally Mandal (PW1), at the relevant time, R.G.Rajeshwara Rao,

Inspector of Police (PW7), registered the case and handed over the file to

Ch.Satyanarayana, S.I of Police (LW9), who investigated into the matter and filed charge-sheet against A1 for the offences punishable under Sections 419, 420, 468, and 384 of the Indian Penal Code; against A2 for the offences punishable under

Sections 419, 420 and 468 of the Indian Penal Code and against A3 for the offences punishable under Sections 419, 420, 468 and 381 of the Indian Penal

Code.

3. The learned trial Court framed charges against A1 for the offences punishable under Sections 419, 420, 468 and 384 of the Indian Penal Code; against A2 for the offences punishable under Sections 420, 464, 467, 468 and 471 of the Indian Penal Code and against A3 for the offences punishable under

Sections 409, 381 and 420 of the Indian Penal Code, read over and explained the same to them, to which they pleaded not guilty and claimed to be tried.

4. The prosecution, to prove its case against A1 to A3, examined PWs 1 to 8 and got marked Exs.P1 to P8. The accused persons did not adduce any evidence on their behalf.

5. PW1 (J.Venakteshwara Rao), who worked as M.P.D.O.,

Mattampally, at the relevant time, is the de facto complainant. PW2 (P.Krishna

Murthy), who worked as Superintendent in the office of M.P.D.O., Mattampally, 5 of 13 Crl.Appeal No.10 of 2019 at the relevant time, is cited as a circumstantial witness, as, he stated to have informed PW1 about the misuse of a cheque relating to the bank account of the office. PW3 (Ch.Rini Mathews), Branch Managar, Axis Bank, Miryalaguda

Branch, at the relevant time, speaks about A1 presenting the cheque for payment and its dishonour. PW4 (T.Veera Reddy), Panchayat Secretary, Yadgarpally, is stated to be one of the Panchas for confession panchanama of A1 to A3. PW5 (K.Somi Reddy), Panchayat Secretary, Goguvarigudem, at the relevant time, is stated to be another panch for confession panchanama of A1 to A3. But, he did not support the case of prosecution. PW6 (A.Giribabu), Manger, State Bank of

Hyderabad, Huzurnagar Branch, at the relevant time, speaks about his returning the cheque unpaid with an endorsement that the signature differs or mandate of the account holder is required. PW7 (R.Rajeshwar Rao), Inspector of Police,

Miryalaguda I Town, at the relevant time, is the Investigating Officer and PW8 (A.Raja Naik) is Scientific Officer in FSL, Hyderabad.

6. On appreciation of oral and documentary evidence available on record, the learned trial Court, by the impugned judgment, while acquitting A1 and A3, convicted and sentenced A2 for the offences under Sections 420, 464, 467, 468 and 471 of the Indian Penal Code as above and feeling aggrieved by the same, he filed this appeal.

7. It is contended by the learned counsel for the appellant/A2 that there is a considerable delay in initiating criminal action; that the signature of the drawer appearing on Ex.P1/cheque does not belong to the appellant/A2 and that the appellant/A2 did not give the said cheque to A1 in any transaction; that the evidence of the handwriting expert/PW8 is not a conclusive one and further, the same is not corroborated by any other evidence; that the prosecution even failed to prove that Ex.P1/cheque belongs to the bank account of the office of M.P.D.O.,

Mattampally, from where it was alleged to have been stolen; that the 6 of 13 Crl.Appeal No.10 of 2019 standard/specimen signatures stated to be of the appellant/A2 and stated to have been examined by PW8 were not obtained by and before the Court and that there is no evidence to show that the said standard/specimen signatures belong to the appellant/A2, but, the learned trial Court did not consider all these things in right perspective and it convicted and sentenced the appellant/A2 by carrying away with the evidence of PW8/expert only. It is further contended by him that the learned trial Court having acquitted A1 and A3 ought not to have convicted the appellant/A2. The learned counsel, ultimately, prayed to allow the appeal and acquit the appellant/A2 of the offences for which he was convicted and sentenced.

8. The learned Additional Public Prosecutor supported the impugned judgment and prayed to dismiss the appeal.

9. The points that would arise for determination are:

1)Whether Ex.P1/cheque relates to the bank account of the office of M.P.D.O., Mattampally, and issued by the State Bank of Hyderabad, Huzurnagar Branch?

2)Whether the signatures of the drawer appearing on Ex.P1/cheque are of the appellant/A2?

3)Whether the judgment of the learned trial Court suffers from any illegality or irregularity warranting interference by this Court?

4)To what relief?

10. Point No.1: Whether Ex.P1/cheque relates to the bank account of the office of M.P.D.O., Mattampally, and issued by the State Bank of Hyderabad, Huzurnagar Branch?

The case of the prosecution is that once A3 has availed a loan from A1 and without repaying the same, when he (A3) again asked A1 to provide some more amount as loan, A1 refused to provide the same by stating that he did not repay the amount borrowed earlier and he (A1), however, stated that he would provide loan to another government employee and then A3 approached the appellant/A2, who is a government teacher, and requested him to borrow the amount from A1 and give the same to him; that when the appellant/A2 and A3 approached A1 and 7 of 13 Crl.Appeal No.10 of 2019 requested him to give loan to A2, he (A1) insisted to produce the salary certificate, cheque and ID card of the appellant/A2 and the appellant/A2 told to

A3 that he has no cheque book and then A3 stole a cheque leaf bearing

No.902098 from the office of M.P.D.O., Mattampally, where he worked earlier, and gave the same to the appellant/A2 and the appellant/A2 put his signature on the said cheque and gave the same to A1, upon which, A1 lent Rs.30,000/- to the appellant/A2 and he, in turn, gave the said amount to A3 and when the appellant/A2 did not repay the said loan amount, A1 filled the said cheque for

Rs.1,00,000/- and presented the same to the bank for realization, but, the bank returned the said cheque unpaid with a remark „title of account required/title of account wrong/incomplete‟.

11. All the above things stated to have come to light when PW6,

Manager of the Bank, has brought the dishonour of cheque to the notice of PW2, who was the Superintendent in the office of M.P.D.O., Mattampally and the case came to be registered on the report/Ex.P2 lodged by PW1, who was the Mandal

Parishad Development Officer.

12. It is contended by the learned counsel for the appellant/A2 that there is nothing on record to say that Ex.P1/cheque relates to the bank account of the office of M.P.D.O., Mattampally and further, PWs 1 and 2 did not state as to how the said cheque leaf went missing from their office and that as per Ex.P2/ report given to the police, the account number of the office of MPDO is 52121700566, whereas on Ex.P1/cheque, the account number affixed with a rubber seal is 62121700566, but, the learned trial Court did not advert into these aspects and record any finding thereof.

13. Ex.P2 is the report dated 22.05.2012 given by PW1/MPDO,

Mattampally, at the relevant time, to the Station House Officer, Miryalaguda

Police Station, wherein it is stated that the office of MPDO, Mattampally, has 8 of 13 Crl.Appeal No.10 of 2019 account with State Bank of Hyderabad, Huzurnagar vide account number 52121700566. But, on Ex.P1/cheque, the account number affixed with rubber seal is 62121700566 and above the first digit „6‟, the digit „5‟ is written in ink.

PW6, Manager of the Bank where the said account was maintained, has categorically admitted about the said discrepancy. He has also admitted that the said rubberstamp was affixed by their bank persons. But, he did not offer any explanation as to why the digit „5‟ was written in handwriting above digit „6‟ and who has written the same. Then, it is not known what exactly is the bank account number of the office of MPDO, Mattampally i.e., whether it is 52121700566 or 62121700566, and to which account Ex.P1/cheques relates to.

14. As stated by PW1 in his cross-examination, when he took charge and the cheque book, the cheque leaves were from 902050 to 902100 and he went for training on 13.02.2012 for a period of three months and that he did not mention as to how many cheques were used and how many cheques were unused and that he did not mention the numbers of cheque leaves that were handed over to his Superintendent while going on training and that he did not state before the police as to how many cheques he has handed over to his superintendent. PW6, in his cross-examination, has admitted that they maintain a cheque book issue register and they enter the particulars of cheque books that were issued to the customers. But, admittedly, no such cheque book issue register was produced

before the Court to show the cheque book containing Ex.P1/cheque leaf was

issued to the office of MPDO. When PW1 is not able to say the numbers of unused cheque leaves that were handed over to his Superintendent while going on training and when PW6 did not place any register to show that Ex.P1/cheque leaf was part of cheque book issued to the office of MPDO, it is not possible to take that Ex.P1/cheque leaf relates to the bank account of the office of MPDO,

Mattampally maintained with the bank of PW6.

9 of 13 Crl.Appeal No.10 of 2019

15. In view of the above circumstances, it is not possible to take that

Ex.P1/cheque leaf relates to the bank account of the office of MPDO,

Mattampally, and it was issued by State Bank of Hyderabad, Huzurnagar.

16. Point No.2: Whether the signatures of the drawer appearing on Ex.P1/cheque are of the appellant/A2?

As noticed above, the case of the prosecution is that A3 stole Ex.P1/cheque leaf from the office of MPDO, Mattampally, and handed over the same to the appellant/A2 and he, in turn, put his signature on the said cheque as its drawer and handed over the same to A1 as security in a loan transaction. As stated by

PW1, in his cross-examination, the cheque book would be in the custody of the

Superintendent under lock and key. PW2/Superintendent also, in his cross- examination, has stated that the cheque book will be kept in the almirah under lock and key. If that be so, it is not known as to how Ex.P1/cheque leaf went missing from their office. It is also not their case that A3 was working in their office at the relevant point of time and he stole the said cheque. Further, as stated by PW2 in his cross-examination, they did not give any report to the police or to their superior officers that there is theft of a cheque book or any other items from their office. The learned trial Court also in its judgment observed that PWs 1 and 2 did not speak anything as to how the cheque was misplaced from their office.

Further, as held in point No.1, the prosecution even failed to prove that

Ex.P1/cheque leaf relates to the bank account of the office of MPDO,

Mattampally, maintained with the State Bank of Hyderabad, Huzurnagar.

However, even if it is assumed for a moment that the said cheque relates to the bank account of the office of MPDO, Mattampally, for the reasons stated hereinabove, it cannot be said that the said cheque was misplaced or stolen by somebody from the said office. If that be so, the signatures of the drawer on

Ex.P1/cheque cannot be said to be of the appellant/A2.

10 of 13 Crl.Appeal No.10 of 2019

17. The learned trial Court convicted and sentenced the appellant/A2 solely based on the evidence of PW8/Expert. So, it is to be verified whether the said finding of the learned trial Court is sustainable. According to the prosecution,

Ch.Satyanarayana, Sub-Inspector of Police, Miryalaguda I-Town Police Station (LW9), collected/seized Ex.P1/cheque, salary and service certificate dated 07.08.2007 stated to be of the appellant/A2 and issued by the Mandal Educational

Officer, Mattamplally, a written receipt in Telugu dated 05.01.2012 stated to have been issued by the appellant/A2, a promissory note with receipt and surety bond in blank form with the signatures stated to be of the appellant/A2 and a white paper affixed with a revenue stamp and containing the signature stated to be of the appellant/A2 from A1 under a panchanama in the presence of PWs 4 and 5.

The said S.I. of Police also stated to have obtained the specimen signatures of the appellant/A2 on a white paper in the presence of the said panchas. PW8/Expert has stated that he marked the questioned signatures on the cheque (Ex.P1) as Q1 and Q2, the signature on the salary certificate and service certificate as S1, the signatures on the receipt as S2 and S3, the signatures on the pronote as S4 and S5, the signature on the white paper as S6 and the specimen signatures contained on a white paper as S7 to S16. He has further stated that after careful examination by using magnifiers and stereo micro scope, his opinion is the person who wrote the red enclosed signatures marked as S1 to S16 also wrote the red enclosed signatures marked as Q1 and Q2. The learned trial Court believed this evidence of

PW8 and found the appellant/A2 guilty of committing forgery. But, the appellant/A2 is vehemently contending that the signatures of the drawer on

Ex.P1/cheque, which are marked as Q1 and Q2, and the signatures, which are marked as S1 to S16 by PW8, do not belong to him at all and further, PW8 did not state that those signatures were written by him. So, it is for the prosecution to prove beyond all reasonable doubt that the signatures marked as Q1 and Q2 and 11 of 13 Crl.Appeal No.10 of 2019

S1 to S16 by PW8 were written by the appellant/A2. But, it is to be noted that the

Sub-Inspector of Police, who stated to have collected the said documents/signatures is not examined before the Court for the reason that he died. The role of investigation done by the Sub-Inspector of Police is spoken to by PW7, who stated to have registered the case, issued First Information Report under Ex.P7 and handed over the file to the said Sub-Inspector of Police for further investigation. He, in his cross-examination, has admitted that after entrusting the case record to the Sub-Inspector of Police, he did not participate in the investigation and that he has no personal knowledge about the case. Further

A1, to whom the appellant/A2 stated to have given Ex.P1/cheque by signing the same, also did not state that the signatures of the drawer appearing on

Ex.P1/cheque were put/written by the appellant/A2 before him. Another thing to be noted is that the documents that allegedly contained the admitted/standard signatures of the appellant/A2 were not exhibited in evidence and confronted to the appellant/A2 and thereby he lost the opportunity to explain about the same. It is also to be noted that the said documents were not sent to FSL through the Court and they were sent to FSL directly by the Police. If that be so, as rightly contended by the learned counsel for the appellant/A2, the signatures that were marked as S1 to S16 and examined by PW8 cannot be said to be the admitted/standard signatures of the appellant/A2. Yet another thing to be noted is that as held by the learned trial Court, the prosecution failed to prove that A3 stole

Ex.P1/cheque from the office of MPDO, Mattampally, and handed over the same to the appellant/A2 and acquitted A3 of the offences for which he was charged and the said finding of the learned trial Court has become final, as, the prosecution did not file any appeal questioning the same. When the prosecution failed to prove that A3 stole the cheque leaf from the office of MPDO and handed over the same to the appellant/A2, the question of A2 committing any forgery by 12 of 13 Crl.Appeal No.10 of 2019 affixing his signature on Ex.P1/cheque does not arise. In these circumstances, the opinion of PW8 that the questioned signatures and standard signatures were written by one and the same person is of no help to the case of the prosecution.

18. PW8, in his cross-examination, has admitted that Q1 signature contains a small stroke of letter “a” immediately after “n” and in continuation with a line drawn horizontally in the letter “n” is not found anywhere in the specimen signatures “S7” to “S16”. He has added that it contains in the specimen signature marked as “S16” He has admitted that the said stroke is not found in „S16‟ with a naked eye and that there is a lot difference in the signatures Q1 and

Q2 and S1 to S6. These admissions made by PW8 also render his above opinion nugatory. Besides all, as held by the Hon‟ble Supreme Court in S.P.S. Rathore v.

C.B.I. and another1 the evidence of handwriting expert is only opinion evidence and not conclusive and before acting on such evidence, it is usual to see if it is corroborated by clear direct evidence or by circumstantial evidence and that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same cannot be relied upon either for conviction or for acquittal.

As noticed above, there is no corroboration to the opinion given by PW8 under

Ex.P8. The prosecution even failed to prove the collection of documents containing the disputed and standard signatures of the appellant/A2. So, in view of the ratio laid down by the Hon‟ble Supreme Court in the above decision, the opinion given by PW8 cannot be made as basis to hold that the appellant/A2 has committed the offence of forgery. But, the learned trial Court did not appreciate the evidence of PW8 in right perspective. Further, the learned trial Court having found that the prosecution failed to prove that A3 stole cheque leaf and gave the same to the appellant/A2, could not have held the appellant/A2 guilty of committing forgery.

12016 (2) ALD (Crl.) 851 (SC) 13 of 13 Crl.Appeal No.10 of 2019

19. For the reasons recorded above, there cannot be any hesitation to hold that the prosecution failed to prove the signatures of the drawer appearing on

Ex.P1/cheque belong to the appellant/A2 and he has fabricated the said document by committing forgery. This point is answered accordingly.

20. Point No.3: Whether the judgment of the learned trial Court suffers from any illegality or irregularity warranting interference by this Court?

For the reasons recorded in points No.1 and 2, the judgment of the learned trial Court finding the appellant/A2 guilty for the offences 420, 464, 467,468 and 471 of the Indian Penal Code and convicting and sentencing him thereof would not be sustainable and hence, the same is liable to be set aside. This point is answered accordingly.

21. Point No.4: In the result, this appeal is allowed setting aside the conviction and sentence recorded against the appellant/A2 by the Court of I

Additional Judicial Magistrate of First Class, Miryalaguda, in C.C.No.427 of

2013 dated 28.12.2018 and consequently, the appellant/A2 is acquitted under

Section 248(1) of the Code of Criminal Procedure of the offences under Sections 420, 464, 467,468 and 471 of the Indian Penal Code for which he was convicted and sentenced by the learned trial Court. His bail bonds, if any, shall stand cancelled. The fine amount shall be refunded to the appellant/A2 after expiry of appeal time.

Dictated to the Stenographer (Gr.I) and after transcribed by him, corrected

and pronounced by me in the open Court, on this the 30th day of May, 2022.

VIII Additional Sessions Judge, Miryalaguda. Appendix of evidence (Witnesses examined and exhibits marked) -Nil-

VIII Additional Sessions Judge, Miryalaguda. AK *

1 of 10 O.S.No.16 of 2019

IN THE COURT OF V ADDITIONAL DISTRICT JUDGE AT

MIRYALAGUDA, NALGONDA DISTRICT

Wednesday, the 25th day of January, 2023

Present: Sri R.Raghunath Reddy,

V Additional District Judge, Miryalaguda.

O.S.No.16 of 2019

Between:

Thodima Laxmamma, W/o Buchi Reddy, Age 48 years, Occ: Housewife, R/o Vutlapally Village of Peddavoora Mandal, Nalgonda District. …. Plaintiff AND

Marru Raghuvardhan Rao, S/o Hanumantha Rao, Age 53 years, Occ: Govt. Employee in MPPS, Rekya Thanda, Nampally Mandal, Nalgonda District, R/o Pothunur Village of Peddavoora Mandal, Nalgonda District, presently residing at H.No.8-4-17, Flat No.203, Kamala Rainbow Vista Apartments, Sai Ram Nagar Colony, Hyderabad – 500079.

… Defendant

This suit is coming before me for final hearing on 29.12.2022 in the presence of Sri L. Sreenivasulu, Advocate, for the plaintiff and of Sri G. Rama Krishna Reddy and Sri N. Krupananda Reddy, Advocates, for the defendant and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:

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

The plaintiff filed this suit for recovery of Rs.23,83,990/- with future interest thereon and costs from the defendant.

2. The averments made in the plaint, in brief, are: The defendant is well acquainted to the plaintiff since a long time. Out of said acquaintance, in the month of April, 2016, he approached the plaintiff and requested her to advance an amount of Rs.12,80,000/- to meet his family necessities and other needs. Owing to the said request of the defendant, on 01.05.2016, the plaintiff lent an amount of

Rs.12,80,000/- to the defendant and the defendant, in turn, executed a promissory note promising to repay the said amount with interest at 30% per annum. The said transaction took place in the house of the plaintiff at Vutlapally Village, Peddavoora

Mandal, Nalgonda District in the presence of witnesses. The plaintiff demanded the defendant to repay the said amount, but, he failed to repay the same and thereby, he 2 of 10 O.S.No.16 of 2019 became due of Rs.23,83,990/- by the date of filing of the suit and he is liable to pay the said amount with future interest and costs. Hence, the suit.

3. The defendant filed written statement specifically denying his acquaintance with the plaintiff and borrowal of amount from her and his liability to pay the suit amount to the plaintiff. The averments of the said written statement, in brief, are: The defendant and the husband of the plaintiff by name Thodima Buchi

Reddy are known to each other. Out of said acquaintance, on 14.11.2013, the defendant borrowed an amount of Rs.15,00,000/- from the husband of the plaintiff for one Kadari Anjaiah, who is a common friend of the defendant and the husband of the plaintiff. At the time of lending of said amount, the husband of the plaintiff, instead of taking promissory note from Kadari Anjaiah, insisted the defendant to execute the promissory notes. The defendant, therefore, handed over three signed blank promissory notes to the husband of the plaintiff towards guarantee for repayment of the said loan amount. Having received the three signed blank promissory notes, the husband of the plaintiff got scribed the two promissory notes, one for Rs.10,00,000/- and another for Rs.5,00,000/-, through one Y. Chenna Reddy, who is also a common friend of the defendant and the husband of the plaintiff. The husband of the plaintiff kept the third signed blank promissory note given by the defendant with him for the guarantee of payment of interest on the borrowed amount of Rs.15,00,000/-. By the end of June, 2015, the defendant repaid the total principal amount of Rs.15,00,000/- to the husband of the plaintiff and the husband of the plaintiff, in turn, returned two promissory notes dated 14.11.2013 i.e., one for

Rs.10,00,000/- and another for Rs.5,00,000/-, to the defendant. But, he retained the signed blank promissory note with him by assuring that he would return the same after making payment of interest on the amount covered by two promissory notes

dated 14.11.2013. The defendant, initially, agreed to pay interest at 30% per annum

on Rs.15,00,000/-, but, the same was reduced to 24% per annum on mutual understanding between the defendant and the husband of the plaintiff. Thus, the 3 of 10 O.S.No.16 of 2019 interest amount was worked out at Rs.6,60,000/- i.e., at 24% per annum from 14.11.2013 to 31.08.2015. On constant demands made by the husband of the plaintiff, the defendant paid an amount of Rs.1,60,000/- to him by way of cash in

July, 2015, for which, the husband of the plaintiff did not pass any receipt. The defendant paid Rs.5,00,000/- on 01.09.2015 towards balance interest and also towards full and final settlement of the amount borrowed on 14.11.2013 to the husband of the plaintiff and demanded him to return the third signed blank promissory note. But, the husband of the plaintiff, having passed a receipt for

Rs.5,00,000/- in favour of the defendant, represented the defendant that the signed blank promissory note is misplaced and promised to return the same as and when it is found. Ever since the date of clearing the loan amount, the defendant has been demanding the husband of the plaintiff to return the third signed blank promissory note, but, he (husband of the plaintiff) has been postponing the return of said promissory note by saying cock and bull stories. The defendant by anticipating that the husband of the plaintiff may misuse the signed blank promissory notice got issued a legal notice dated 11.03.2018 calling upon him (husband of the plaintiff) to return the signed blank promissory note. But, the husband of the plaintiff did not return the promissory note or give any reply to the said notice. The husband of the plaintiff, in connivance with Y. Chenna Reddy and P. Satyam Reddy, got filed the suit through the plaintiff by fabricating the suit promissory note and he could do so after receipt of legal notice dated 11.03.2018 got issued by the defendant. In fact, the defendant did not borrow any amount from the plaintiff and execute any promissory note in her favour. He does not even know the plaintiff. So, the suit of the plaintiff is liable to be dismissed with costs.

4. On the basis of above rival pleadings, the following issues were settled for trial:

1) Whether the defendant executed the suit promissory note?

2) Whether the plaintiff is entitled to recover the suit amount from the defendant?

3) To what relief?

4 of 10 O.S.No.16 of 2019

5. On behalf of the plaintiff, she herself is examined as PW.1 and got marked the suit promissory note as Ex.A1. She also got examined Poshamreddy

Sathyam Reddy, who is stated to be one of the attesotrs to the suit promissory note, as PW.2. On the other hand, the defendant himself is examined as DW.1 and got marked Exs.B1 to B5. He got summoned Y. Chenna Reddy and examined him as

DW.2.

6. Heard the learned counsel appearing for the parties and perused the written arguments filed by the learned counsel for the plaintiff.

7. Issue No.1: Whether the defendant executed the suit promissory note?

The case of the plaintiff is that the defendant, being a known person, has borrowed an amount of Rs.12,80,000/- from er on 01.05.2016 by executing a promissory note promising to repay the said amount with interest at 30% per annum, but, he failed to keep up the said promise and thereby, he became due of

Rs.23,83,990/- by the date of filing of the suit. On the other hand, the case of the defendant is that he does not know the plaintiff and he did not borrow any amount from her at any time and that on 14.11.2013, he borrowed an amount of

Rs.15,00,000/- from the husband of the plaintiff for one Kadari Anjaiah, who is a common friend to him and the husband of the plaintiff, and at that time, the husband of the plaintiff has obtained three signed blank promissory notes towards the guarantee for repayment of the said amount and got scribed two promissory notes, one for Rs.10,00,000/- and another for Rs.5,00,000/-, through Y. Chenna Reddy and kept the third signed blank promissory note with him for guarantee of payment of interest and that he repaid the said amount of Rs.15,00,000/- in June, 2015 and the husband of the plaintiff having received the said amount, returned two promissory notes, but, he retained the third signed blank promissory note with him by assuring that he would return the same after making of payment of interest and that he later paid the amount due towards interest also, but, the husband of the plaintiff did not return the third signed blank promissory note by saying that it is misplaced and later, 5 of 10 O.S.No.16 of 2019 he (husband of the plaintiff), in connivance with one Y. Chenna Reddy and P.

Satyam Reddy, got fabricated the suit promissory note by misusing his (defendant’s) signed blank promissory note and filed this suit through the plaintiff.

8. The plaintiff in her evidence as PW.1 has reiterated her case. Ex.A1 is promissory note dated 01.05.2016 for Rs.12,80,000/- stated to have been executed by the defendant in favour of the plaintiff. She denied the suggestion that the defendant did not borrow any amount much less Rs.12,80,000/- from her at any time much less on 01.05.2016.

9. PW.2, Poshamreddy Satyam Reddy, has stated that he knows the plaintiff and the defendant and on 01.05.2016, the defendant approached the plaintiff to advance Rs.12,80,000/- as loan to meet his family necessities and other needs and the plaintiff paid the said amount of Rs.12,80,000/- to the defendant and after receiving the said amount, the defendant executed a promissory note in favour of the plaintiff promising to repay the said amount with interest at 30% per annum as and when demanded and that the said transaction took place in the house of the plaintiff at Vutlapally Village and he was present at that time and he signed the promissory note as one of the witnesses. He denied the suggestion that the defendant did not borrow any amount much less Rs.12,80,000/- on 01.05.2016 and he did not execute promissory note much less Ex.A1 in favour of the plaintiff for any amount on that day.

10. The plaintiff/PW.1, in her cross-examination, has stated that the defendant is a family friend of her husband and she lent the amount to the defendant in her house at Vutlapally village and that her husband was present at that time and that one Chenna Reddy and Satyam Reddy were also present at that time and Chenna

Reddy has scribed the promissory note (Ex.A1) and that the defendant is a resident of Pothunur Village. PW.2, in his cross-examination, has stated that the subject transaction took place on 01.05.2016 and the defendant called him to Vutlpally village on the date of transaction and by the time he went to the house of the 6 of 10 O.S.No.16 of 2019 plaintiff, the plaintiff and her husband were present and that himself, the defendant and Chenna Reddy together went to the house of the plaintiff on that day and that the defendant brought the promissory note form and Chenna Reddy filled its contents and that himself, the defendant and Chenna Reddy put their signatures on the promissory note. He has further stated that the defendant came to Rangareddy

Gudem gate at about 11.00 or 11.30 a.m. and from there, he took him to the house of the plaintiff at Vutlpalaly and Chenna Reddy also came along with them to the house of the plaintiff.

11. The defendant in his evidence as DW.1 has reiterated his case. Ex.B1 is office copy of legal notice dated 11.03.2019 got issued by the defendant calling upon Thodima Buchi Reddy, husband of the plaintiff, to return his signed blank promissory note. Ex.B2 is postal acknowledgment from Thodima Buchi Reddy for receipt of Ex.B1/notice. Exs.B3 and B4 are promissory notes dated 14.11.2013 for

Rs.10,00,000/- and Rs.5,00,000/- respectively executed by the defendant in favour of the husband of the plaintiff. Ex.B5 is original receipt dated 01.09.2015 for

Rs.5,00,000/- stated to have been passed by the husband of the plaintiff in favour of the defendant. He, in his cross-examination, has admitted that the signature of the executant on Ex.A1, promissory note, is his signature. He denied the suggestion that he gave two promissory notes only to Buchi Reddy (husband of the plaintiff) while borrowing the amount from him and that he did not give any signed blank promissory note to Buchi Reddy at that time for any purpose. He further denied the suggestion that on 01.05.2016, he borrowed an amount of Rs.12,80,000/- from the plaintiff in the presence of witnesses and he, in turn, executed Ex.A1 in her favour.

He also denied the suggestion that he sustained losses in real estate business and that to evade the repayment of the amount borrowed from the plaintiff, he has created a false story that he gave a signed blank promissory note to Buchi Reddy at the time of borrowal of amount from him and that Buchi Reddy has misused the said signed blank promissory note and got filed this suit through his wife. It is also denied by 7 of 10 O.S.No.16 of 2019 him that 15 days prior to filing of this suit, the plaintiff came to him and demanded him to repay the amount covered by Ex.A1, but, he did not give proper response to her and that by apprehending that the plaintiff may file a suit against him, he got fabricated Ex.B1.

12. From the evidence of the plaintiff/PW.1 and PW.2, it is obvious that the defendant approached the plaintiff and borrowed an amount of Rs.12,80,000/- from her on 01.05.2016 and having received the said amount, he executed a promissory note (Ex.A1) in favour of the plaintiff promising to repay the said amount with interest at 30% per annum i.e., at Rs.2.50 paise per hundred per month.

As elicited from PWs.1 and 2 during their cross-examination, the said transaction took place in the house of the plaintiff at Vutlapally Village and one Chenna Reddy and Satyam Reddy (PW.2) were present at that time. It was also elicited from PW.2 that the defendant himself took him to the house of the plaintiff on that day. Further, as admitted by the defendant/DW.1 in his cross-examination, the signature of the executant on Ex.A1 is his signature. So, a presumption under Section 118(a) of the

Negotiable Instruments Act, 1881, also arises that the defendant has executed Ex.A1, promissory note, for the contents mentioned therein, unless the contrary is proved.

His contrary case, as noticed above, is that he gave a signed blank promissory in some other transaction to the husband of the plaintiff, but, he, in connivance with one Y.Chenna Reddy and Satyam Reddy (PW2), has got fabricated the suit promissory note by misusing the said signed blank promissory note and filed this sought through his wife. To prove his said case, he got summoned Y. Chenna Reddy and examined him as DW.2. He (DW.2), in his evidence, has confirmed the fact of the defendant borrowing the amount from the husband of the plaintiff and his scribing the promissory notes (Exs.B3 and B4) at that time. He has also stated that in 2015, the defendant took him to the house of Buchi Reddy (husband of the plaintiff) by saying that he has got the amount and he wants to pay the same to Buchi Reddy and the defendant paid Rs.5,00,000/- to Buchi Reddy and after receiving the said 8 of 10 O.S.No.16 of 2019 amount, Buchi Reddy wrote a receipt (Ex.B5) and he signed the said receipt as a witness. But, the plaintiff is not denying the said case of the defendant and during her cross-examination, when the said case of the defendant was suggested to her, she has pleaded ignorance of the same by saying that she does not know. But, as suggested to the defendant/DW.1, the case of the plaintiff is that he (defendant) gave two promissory notes only to Buchi Reddy while borrowing the amount from him and that he did not give any signed blank promissory note to Buchi Reddy at that time for any purpose. DW.2 also, during the cross-examination by the advocate for the plaintiff, while confirming the case of the plaintiff, has categorically admitted that the transaction under Ex.A1 and the promissory notes under Exs.B3 and B4 are different with each other and that the amount under Ex.B5 is nothing to do with the amount due under Ex.A1 and these admissions of DW.2 remained unchallenged, as, nothing contra was elicited from him to dislodge his said version. Another thing to be noted is that in Exs.B3 and B4, promissory notes, the rate of interest to be paid is also mentioned. The defendant/DW.1 also, in his cross-examination, has admitted that the interest column in Exs.B3 and B4 is already filled up. This also falsifies his case that the husband of the plaintiff has obtained a signed blank promissory note from him as a guarantee for payment of interest on the amount covered by Exs.B3 and B4, promissory notes. All these circumstances put together improbablise the above defence setup by the defendant and on the other hand, the said circumstances including the evidence of DW.2 probablise the case of the plaintiff that the defendant having borrowed an amount of Rs.12,80,000/- from her has executed Ex.A1, promissory note, in her favour.

13. It is contended by the learned counsel for the defendant that the plaintiff has filed this suit on 18.03.2019, but, on 11.03.2019 itself, the defendant got issued Ex.B1/notice calling upon the husband of the plaintiff to return the signed blank promissory note and if really the signed blank promissory note is not with the husband of the plaintiff, the defendant ought not to have got issued the said notice. It 9 of 10 O.S.No.16 of 2019 is further contended by him that after receipt of Ex.B1/notice, the husband of the plaintiff got fabricated the suit promissory note by misusing the signed blank promissory note of the defendant and filed this suit through the plaintiff only to gain wrongfully for himself. It is true that Ex.B1/notice was got issued prior to filing of this suit and from Ex.B2, it appears that the same was received by the husband of the plaintiff. But, it is to be noted that the plaintiff, in the plaint itself, has stated that finally on 05.03.2019, she demanded the defendant to repay the loan amount, but, he failed to repay the same. It was also suggested to the defendant/DW.1 by the advocate for the plaintiff that 15 days prior to filing of this suit, the plaintiff came to him and demanded him to pay the loan amount under Ex.A1, but, he did not give proper response to her and that by apprehending that the plaintiff may file a suit against him he got issued such a notice, which he denied. This case of the plaintiff appears to be probable. If really, the blank promissory note of the defendant was with the husband of the plaintiff, the defendant would have got issued a notice similar to Ex.B1 soon after payment of interest amount under Ex.B5 on 01.09.2015.

But, till 11.03.2019, on which date Ex.B1 was got issued i.e., for about 3 ½ years, he did not take any steps to get back his alleged signed promissory note from the husband of the plaintiff.

14. For the reasons recorded above, there cannot be any hesitation to hold that the defendant has executed suit promissory note (Ex.A1) and the same is supported by consideration. This issue is, therefore, answered in favour of the plaintiff and against the defendant.

15. Issue No.2: Whether plaintiff is entitled to recover the suit amount from the defendant?

The plaintiff filed this suit for Rs.23,83,990/- based on Ex.A1, promissory note. As held in issue No.1, Ex.A1/promissory note was executed by the defendant and it is supported by consideration. It is not the case of the defendant that he has paid any amount to the plaintiff. It is also not his case that the amount claimed by the 10 of 10 O.S.No.16 of 2019 plaintiff is not true and correct. Therefore, the plaintiff would be entitled to recover the suit amount from the defendant. This issue is answered accordingly.

16. Issue No.3: To what relief?

In the result, the suit is decreed, with costs, directing the defendant to pay the suit amount of Rs.23,83,990/- (Rupees Twenty Three Lakhs Eighty Three

Thousand Nine Hundred Ninety Only) to the plaintiff with interest on the principal sum of Rs.12,80,000/- (Rupees Twelve Lakhs Eighty Thousand Only) at 12% per annum from the date of suit till the date of decree and with further interest thereon at 6% per annum from the date of decree till the date of realization.

Dictated to the Stenographer (Gr.I) and after transcribed by her, corrected and

pronounced by me in the open Court, on this the 25th day of January, 2023.

Sd/-

V Additional District Judge, Miryalaguda.

Appendix of evidence

(Witnesses examined) For the plaintiff:

PW.1Thodima Laxmamma (Plaintiff) PW.2Poshamreddy Sathyam Reddy

For the defendant: DW.1Marru Raghuvardhan Rao (Defendant) DW.2Y. Chenna Reddy

Exhibits marked

For the plaintiff: Ex.A1Original promissory note, dated 01.05.2016.

For the defendant: Ex.B1Office copy of legal notice, dated 11.03.2019. Ex.B2Postal acknowledgment. Ex.B3Original promissory note, dated 14.11.2013, for Rs.10,00,000/- Ex.B4Original promissory note, dated 14.11.2013, for Rs.5,00,000/- Ex.B5Original receipt, dated 01.09.2015 for Rs.5,00,000/-.

Sd/-

V Additional District Judge, Miryalaguda. MUR *