Smt. S P D Vennela

 1 C.C.No.168/2011

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT : NELLORE.

Wednesday, this the 12th day of November, 2014

Present : Smt.S.P.D.Vennela III Addl.Junior Civil Judge, Nellore. FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

CALENDER CASE No.168/2011 (Old Case No.506/2010 on the file of V AJMFC Court, Nellore)

Between: State:Sub-Inspector of Police, Women Police Station

Nellore.....Complainant

And

1.Shaik Mahammad Rafi S/o.Khamal Basha 42 years, Muslim, D.No.13/1/66, Back side of Bhuman Cine Complex, Peddakapu Street Tirupati 2.Shaik Khamal Basha S/o.Uhmanbasha 68 years,Muslim, D.No.13/1/66, Back side of Bhuman Cine Complex, Peddakapu Street Tirupati 3.Shaik Mahaboob Bee W/o.Khamal Basha 60 years, Muslim, D.No.13/1/66, Back side of Bhuman Cine Complex, Peddakapu Street Tirupati 4.Mohammad Humshoom Beguam W/o.Rafi 38 years, Muslim, Back side of Palani Theatre, Gopal Raj Colony Tirupati.

5.Mohammad Rafi, S/o.Late Kalesha, 49 years, Muslim, Back side of Palani Theatre, Gopal Raj Colony Tirupati.

6.Shaik Muneerabeguam W/o.Masthanasaheb 37 years, Muslim, Door No.4/4/722 Nehrunagar, Tirupati 2 C.C.No.168/2011 7.Shaik Masthan Saheb S/o.Late Mohiddinsaheb 46 years, Muslim, D.No.4/4722, Nehrunagar Tirupati 8.Shaik Salma W/o.Rafiahammad age 30 years Muslim by caste Manchalavari Street Near Rajanna park, Tirupathi Town 9.Shaik Parwin W/o.Anwar, age 28 years Muslim by caste,

Takkemetta, Nellore Town. .... Accused

This case is coming on 07.11.2014 for final hearing before me in the presence of learned Asst. Public Prosecutor for the complainant and of Sri P.Vijaya Kumar Reddy, learned counsel for accused, and having stood over till this day for consideration, this court delivered the following : -

JUDGMENT

The Sub-Inspector of Police, Women Police Station, Nellore filed charge sheet against the accused persons 1 to 9 for the offences under

Sections 498-A of Indian Penal Code (herein after it is referred as I.P.C.) and 3 and 4 of Dowry Prohibition Act in Crime No.21/2000 of Women Police Station.

2. The brief facts of the charge sheet are that about 15 years ago the marriage of LW1 was performed with accused No.1 which arranged by the elders of both parties. At the time of marriage the father of LW1-Shaik Susma arranged Rs.2,00,000/- towards dowry and also arranged Rs.50,000/- for house hold articles besides arranging 35 sovereigns gold ornaments to LW1-

Shaik Susma and her husband. For about one month LW1-Shaik Susma spent her marital life happily at her in-laws house. Later the accused started harassment towards LW1-Shaik Susma to bring additional dowry. They also sold away the gold ornaments of LW1-Shaik Susma by saying that they have debts. Later LW1-Shaik Susma blessed with a female child, again when ever she got pregnancy the accused Nos.1 to 3 used to got it abortion to her 5 times by knowing later on as the foetus is female through scanning. At sixth time, LW1-Shaik Susma blessed with a male child. When the baby got 5 3 C.C.No.168/2011 months, the accused took the baby, kept LW1-Shaik Susma in a room for six days, in the seventh day, they beat her and necked out from the house. When

LW1-Shaik Susma requested to hand over her baby they did not gave her baby. When LW1-Shaik Susma was sat in the road upto evening, the neighbours gave warnings to accused and hand over the baby to LW1-Shaik

Susma. Later LW1-Shaik Susma went to her parents house. Later the husband of LW2-Shaik Manzan and brothers Sk.Nazeer Basha, Sk.Rafi and their wives went to the in-laws house of LW1-Shaik Susma and questioned the accused about the harassment towards LW1-Shaik Susma, then they demanded for additional dowry Rs.2,00,000/- and said that otherwise they did not allow LW1-Shaik Susma to lead family life and also behaved indecently.

Due to which the husband of LW2-Shaik Manzan got ill health and died after one year. When accused No.1 visited the funerals, the elders requested him to take LW1-Shaik Susma to lead marital life, he replied to talk with her parents. On that the elders took LW1-Shaik Susma to her in-laws house and left her there. After one week the accused again started harassment on her and she bared all the torturing in view of the future of her children. On 16.05.2010 in the afternoon at about 13.30 hours the accused beat LW1-Shaik

Susma with hands and legs on her body indiscriminately and necked out from the house, upto evening she sat in the street and as there is no way she went to her parents hosue. Apart from the above said particular incident all the accused subjected LW1-Shaik Susma to cruelty in both mentally and physically by harassing her regularly. On report of the defacto complainant, the Sub-Inspector of Police, Women Police Station registered the case and investigated into and thus the accused have committed the offence under

Section 498-A IPC and section 3 and 4 of Dowry Prohibition Act.

3. Originally the case was numbered on the file of V Additional

Judicial Magistrate of I Class, Nellore as C.C.No.506/2010 by taking cognizance

for the offences under Sections 498A IPC and 3 and 4 of Dowry Prohibition Act 4 C.C.No.168/2011 against the accused Nos.1 to 9.Subsequently this case was transferred to this court as per the proceedings of the Hon'ble District Judge, Nellore in

Dis.No.4179/2012, dated 25.07.2011 and the same was renumbered as

C.C.No.168/2011.

4. On appearance of the accused, copies of the documents were furnished to them as required Under Section.207 of Criminal Procedure Code 1973.

5. On 17.10.2011, the accused Nos.1 to 9 were examined Under section 239 Cr.P.C. explaining the accusation made against them, and they denied the same. Charges under Sections 498-A I.P.C. and 3 and 4 of Dowry

Prohibition Act was framed against the accused Nos.1 to 9, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6.In order to prove its case, the prosecution has examined PWs.1 to 5 and got exhibited P1 to P3. LW1-Shaik Susma defacto complainant examined as PW1. LW3-Shaik Shajahan examined as PW2. LW2-Shaik Manzan mother of the defacto complainant examined as PW3. LW4-Shaik Inthyaz examined as PW4. LW5-M.Nageswaramma, investigating officer examined as

PW5.

7. After closure of the prosecution side evidence, the accused Nos. 1 to 9 were examined under section 313 Cr.P.C. by explaining the incriminating material appearing against them in the evidence of prosecution witnesses, for which they denied the offence and stated that they have no defence witnesses to be examined on their behalf. Ex.D1 is marked.

8. Heard the arguments of the learned Assistant Public Prosecutor.

Inspite of granting several opportunities the accused did not choose to submit their arguments, hence treated as heard.

 5 C.C.No.168/2011

9. Now the point for determination is that whether the

prosecution proved the guilt of the accused for the offences under

Sections 498-A of IPC and 3 and 4 of Dowry Prohibition Act beyond all

reasonable doubt?

10. In order to prove the guilt of the accused the prosecution examined PWs.1 to 5. PW1 is the defacto complainant. PW2 is the cousin of the defacto complainant. PW3 is the mother of the defacto complainant. PW4 is the friend of PW2. PW5 is the investigating officer.

11.The defacto complainant as PW1 stated in her chief examination that her marriage was performed with accused No.1 in the year 1996 and her parents gave cash of Rs.2,00,000/- and Rs.50,000/- towards house hold articles and 35 sovereigns of gold ornaments towards dowry. After her marraige, she joined matrimonial home at Tirupathi at the house of her in-laws and lived 2 or 3 months happily and later all the accused used to harass her and demanding to bring additional dowry and all the accused has taken away all the gold ornaments from her and sold away the same. She gave a birth to female child after that later when she second time conceived on knowing the foetus is a female in the scan all the accused got it aborted and like wise all the accused aborted 5 times on knowing that female foetus are in her womb.

Later in her 6th pregnancy it is found that there is a male foetus. After 5th month of her delivery of her son when she went to the house of accused No.1 all the accused snatched away her son and they have arrested in her room and did not give any food to her. On the 7th day all the accused beat PW1 and necked out from their house and when she asked to give her son, they did not gave her son, then she waited till evening hours then neighbours came and asked all the accused to give her son and then only all the accused gave her son to her and she came back to her parents house and when maternal uncles of PW1 and their wives went to the house of accused No.1 for mediation all the accused demanded Rs.1,00,000/- to allow her into their house and after 6 C.C.No.168/2011 six months the father of PW1 died. The accused No.1 came to her house for funerals of her father at that time the daughter of PW1 got matured, then her elders requested accused No.1 to take PW1 and children to his house, then accused No.1 stated to talk with his parents and after that her elders left PW1 and her children at the house of accused No.1 and after one week all the accused started abusing and beaten PW1 and on 16.05.2010 at about noon hours all the accused beat PW1 and necked out from their house. Later she gave a reprot to the police.

12.PW2 and PW3 deposed their evidence in the same lines as that of

PW1 supporting the case of the defacto complainant.

13.The learned Assistant Public Prosecutor submitted the arguments that the evidence of Pws.1 to 4 quite convincing and sufficient to say that the accused harassed PW1, hence the accused are liable for punishment.

14. The learned counsel for the accused submitted arguments that this court has no jurisdiction to try the case as the alleged offence was committed at Tirupati as per the version of PW1 and PW1 made bold allegations against all the accused. Whereas the sisters of Accused No.1 and her husbands are living separately and PW1 made a false complaint before the police against the accused and the police beaten all the accused indiscriminately and got executed the settlement deed in favour of PW1 and her childern. PW1 herself deserted accused No.1 and there are no specific allegations against all the accused. Hence the learned counsel for the accused prayed to acquit the accused.

15.In support of the arguments of the accused, they submitted the following citations. In a case Mothe Rammolian Rao and others Vs. State of Andhra Pradesh and others reported in 2008(2) ALD (Crl.) 368 (A.P).

Wherein the Hon'ble High Court of A.P. held that “... acts of alleged dowry harassment taken place at 7 C.C.No.168/2011

Hyderabad. Magistrate Court at Narayakhed has no territorial judisction.”

16.They also relied on another decision in U.Maha Lakshmi and another Vs., State of Andhra Pradesh and another reported in 2012(2)

ALD (Crl.) 542 (AP). The Hon'ble High Court of A.P. held that “... A bald and sweeping allegation made against sisters that they instigated their brother to demand more dowry and that they joined their brother in driving out defacto complainant from matrimonial home. Case against husband, main accused, abetted on account of his death. It is, therefore, not just and reasonable to proceed against sisters. More so when allegations against them are bald and superficial.”

17.They also relied on another decision in Shaik Kaleemullah and others Vs. State of Andhra Pradesh and another reported in 2011(1)

ALD (Crl.) 120 (AP). The Hon'ble High Court of A.P. held that

“... Petitioners, brother, sisters and brother-in-laws of

accused-husband of defacto complainant arraigned as accused along with husband. No specific allegation against any of the petitioners of subjecting defacto complainant to harassment by way of beating or abusing her, much less demanding to bring Rs.1 lakh towards

additional dowry. Alleged additional dowry, if brought,

then none of them would be beneficiaries and would get no share in such amount. General and omnibus allegations are made against them though they are residents of different places and different localities. One of the borthers, even no more by date of giving report to police. Such indiscriminate activity on part of complainant, held, cannot be supported by High Court.”

18.Section 498-A reads as follows: Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation:For the purpose of this Section, “Cruelty” means:-

a) any willful conduct which is of a such a nature as is likely to drive the 8 C.C.No.168/2011 woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or

(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

19.On plain reading of the above section, it is clear that to constitute the offence under Section 498-A IPC, the case shall fall under any of the explanations enumerated above to satisfy the term “cruelty”.

20.The PW1 to PW3 categorically stated that accused harassed the

PW1 for additional dowry and accused No.1 got aborted PW1 for 5 times on knowing the gentle of foetus as female and the accused No.1 demanded to bring additional dowry since he suffered loss in his business. Admittedly the accused No.1 suffered loss in his business and indebted to several persons and he tried to sell away his lodge and in view of the loss suffered in his business accused No.1 demanded and harassed PW1 for additional dowry.

Though PW1 stated all the accused harassed PW1, Accused No.4 to 9 who are sisters of accused No.1 and their husbands are living separtely and accused

Nos.2 and 3 who are parents of accused No.1 are old aged persons and no specific overt acts are made out against accused Nos.2 to 9. The evidence of prosecution establishes that accused No.1 harassed PW1 for additional dowry.

21.The learned counsel for the accused submitted the arguments that as per the version of PW1 the entire offence was committed at Tirupati and this court has no jurisdiction to try the case. The offence under Section 498-A IPC is continuing offence and PW1 necked out from the house of her in- laws at Tirupati and she came to her parents house at Nellore, but the accused No.1 did not taken her back and she suffered mentally at her parents house at Nellore and offence under Section 498-A IPC continuing offence, this 9 C.C.No.168/2011 court has also jurisdiction to try this case. There is no proof to show that the parents of PW1 given Rs.2,00,000/- and Rs.50,000/- towards house hold articles and 35 sovereings of gold ornaments as dowry to the parents of accused No.1. Therefore, it can be said that there is absolutely no case about the offence under Section 3 and 4 of Dowry Prohibition Act. As there is no case is made out against accused Nos.2 to 9 for the offence under Section 498-A IPC and for the offence under Section 3 and 4 of Dowry Prohibition Act and accordingly they are entitled for acquittal.

22.In the result, the accused Nos.2 to 9 are found not guilty for the offence under Sections 498-A IPC and 3 and 4 of Dowry Prohibition Act and accordingly they are acquitted under Section 248(1) Cr.P.C. for the said offences. Bail bonds of accused Nos.2 to 9 shall stands cancelled after expiry of appeal time. However, accused No.1 is found not guilty for the offence under Section 3 and 4 of Dowry Prohibition Act and accordingly he is acquitted under Section 248(1) Cr.P.C. for the said offence. The accused No. 1 is found guilty for the offence under Section 498-A IPC and accordingly he is convicted under Section 248(2) Cr.P.C. for the said offence.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 12th day of November, 2014.

III Additional Junior Civil Judge, Nellore FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

12.11.2014

The accused No.1 is present and when the accused No.1 is questioned about the quantum of sentence to be imposed against him, he submitted that he has old aged parents aged about 60 and 70 years respectively and they are also suffering with ill-health and he is only earning person for his family and he has to take care of his parents and prays to take lenient view.

 10 C.C.No.168/2011

Considering the facts and circumstances of the case and in view of the nature of the offence, this is not a fit case to invoke the Benevolent Provision of Probation of offenders Act or under Section 360 Cr.P.C. to the accused No.1.

In view of the submissions made by the accused No.1, I feel that the following sentence would meet the ends of justice.

In the result, accused No.1 is sentenced to under go a simple imprisonment for a period of 6(six) months and also sentenced to pay a fine of

Rs.5,000/- (Rupees five thousands only) and in default of payment of fine he shall under go a simple imprisonment for a period of 1(one) month.

The said fine amount shall be given to the defacto complainant under

Section 357(1) Cr.P.C. for the harassment suffered by her after expiry of appeal time. The remand period of the accused No.1 if any undergone during trial and also during remand period shall be set off under Section 428 Cr.P.C,

The accused No.1 informed about his right of appeal against this judgment before the Hon’ble District Court, Nellore and he reported means to engage a counsel to prefer an appeal.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 12th day of November, 2014

III Additional Junior Civil Judge, Nellore FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

Appendix of Evidence

Witnesses examined

For Prosecution: For defence:

PW1:Shaik Susma -none- PW2:Shaik Shajahan PW3:Shaik Majahar @ Manzan PW4:Shaik Inthyaz PW5:M.Nageswaramma 11 C.C.No.168/2011

Documents marked

For Prosecution:

Ex.P1: Report of PW1 Ex.P2: Relevant portion in 161 Cr.P.C.Statement of PW4. Ex.P3: First Information Report.

For defence: Ex.D1: Paper publication in Eenadu Daily News Paper Chittoor Edition, dated 09.10.2010.

Mos. Marked

-nil-

III Additional Junior Civil Judge, Nellore FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

1

IN THE COURT OF THE III ADDITIONAL JUNIOR CIVIL JUDGE: NELLORE

Monday , this the 6th day of April, 2015

Present:: S.P.D. Vennela, B.A.LL.M.,M.H.R.M. III Addl. Junior Civil Judge, Nellore

O.S.No.172/2013

1.Palicherla Venu

2.Palicherla Krishnamma .... Plaintiffs

Vs

Thatiparthi Subbaramaiah .... Defendant

This suit is coming on 18-02-2015before this Court for final hearing in the presence of Sri V.Upendra Rao, Advocate for plaintiffs and Sri M.Surya Prakash Rao, Advocate for the defendant and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs for granting permanent injunction restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property in any manner what so ever and for costs.

2. The brief averments of the plaint are as follows:

Originally the plaint schedule property is Government Poramboke land and it was kept vacant. The plaintiffs occupied the same in the year 1995 and levelled the same and brought the same fit for cultivation with their hard work and earnings and in the beginning raised dry crops therein depending upon the seasons. Subsequently the plaintiffs installed borewell in the plaint schedule property and obtained electricity service connection bearing service

No.3511532000319 in the name of 1st plaintiff and now raising lemon garden therein which is now aged about 10 years and came up for yielding. Since the year 1995 nobody objected the peaceful possession and enjoyment of the plaint schedule property by the plaintiffs including the revenue authorities. The 1st plaintiff also availed crop loan from the plaint schedule land in Andhra Pragathi

Grameena Bank, Kasumur. The Revenue authorities also recognized the possession of plaintiffs over the plaint schedule property and the name of 1st 2 plaintiff is entered in the revenue records as enjoydar. The defendant also is in the possession of Government Poramboke land adjacent to the plaint schedule property towards northern side of it. The defendant has no right over the plaint schedule property. The defendant kept evil eye on the lemon garden raised by the plaintiffs in the plaint schedule property and with intent to grab the plaint schedule property he got issued legal notice dated 03.02.2013 to the 1st plaintiff and others with false allegations claiming false claims over the plaint schedule property and since then the defendant and his men are repeatedly causing obstructions to the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property. The defendant and his men are giving threats to the plaintiffs that they will change the physical features of the plaint schedule property and grab the same. The threats of the defendant and his men are causing reasonable apprehension to the plaintiffs that at any moment the defendant and his men dispossess the plaintiffs from the plaint schedule property and grab the same. The possession of the plaintiffs over the plaint schedule property is legal. The defendant is highly influenced person in the village and having the support of unruly elements. The plaintiffs are unable to resist the highhanded acts of the defendant, hence the plaintiffs filed the present suit.

3. The defendant filed written statement. The brief averments of written statement filed by defendant are as follows:

The defendant filed written statement denying some of the material allegations of the plaint and further contends that the defendant is the absolute owner of the land in an extent of Ac.3-49 cents of dry land comprises in Survey

No.170/4 of Palicherlapadu village, Venkatachalam Mandal, having allotted to him by the Government of Andhra Pradesh, Land Revenue in the year 1977 under D-Form patta for cultivating the land. Since then the defendant has been using the said land for cultivation and eking out his livelihood by raising dry crops therein and getting the yields therefrom. Except the defendant, no one 3 has got right, title or interest over he said land. Since more than 30 years of period the said land is in the occupation and enjoyment of the defendant only.

The defendant never made any transfer of property or alienated the same to anybody and his name also mutated in the revenue records as an enjoyer. The defendant has been granted pattadar passbook from the revenue authorities and also mutated his name in the revenue records and obtained the 10-1 account and NO.3 adangals in his which clearly show that the defendant is the absolute owner over the plaint schedule property since from the allotment to him by the Government and the revenue authorities got the property under ROR registration. The Mandal Tahsildar, Venkatachalam also issued endorsement treating the plaint schedule property is in occupation, possession and enjoyment of the defendant, dated 21.12.2012 clearly disclosing the ownership of the defendant over the said property. In all corners the defendant perfected his right and title over the schedule property. While so, recently when the defendant is intending to harvest the crops standing in the plaint schedule property by engaging people, the plaintiffs all of a sudden came there and trespassed into the plaint schedule property along with their men and unruly elements and created nuisance at the land and obstructed the defendant.

Thereby the defendant could resist their illegal and highhanded acts with the assistance of the neighbouring land owners. There the plaintiffs openly proclaimed that the schedule property belong to them as the defendant sold away the same and that obtained loan from the banks in their names. Thereby defendant came to know and astonished to hear about the same when he approached the Manager of Andhra Pragathi Grameena Bank, Kasumuru Branch and came to know that the 1st plaintiff is has availed crop loan from the said bank for a sum of Rs.20,000/- by showing the 10-1 account and No.3 adangal allegedly issued by the Village Revenue Officer, Palicherlapadu in favour of the plaintiff. The defendant immediately obtained necessary documents under Right to Information Act, 2005. The defendant never sold the property to the 1st plaintiff and thus the 1st plaintiff created fabricated and forged documents under 4 coercion with the revenue authorities. On knowing about the illegal and misleading act of the plaintiffs, the defendant got issued a legal notice on 03.02.2013 to the Mandal Tahsildar, revenue authorities as well as bank including the 1st defendant and intimated about all the facts which notice was duly served on the 1st plaintiff. But the 1st plaintiff neither replied nor complied, but now filed the fictitious suit with vexatious allegations without whispering contents to prove his bonafides.

4.Further the plaintiffs now and then came to the plaint schedule property and illegally and highhandedly trying to encroach upon the property belongs to the defendant by hook or crook and by engaging unruly elements to achieve in his attempts. The plaintiff thus influenced the revenue authorities and got obtained the plaint mentioned No.3 adangal and except the said document the other documents filed along with the plaint are no way helpful to the case and contention of the plaintiffs, but cause obstruct to the defendant who is in possession of the property of Ac.3-49 cents since 30 years and cultivating the same for his livelihood and thus it became the absolute property to him as per the Land Reforms Act. The plaintiffs did not show any proof of document that the Government allotted patta in their favour except some fabricated documents and they did not even file any single scrape of papers showing their allotment, purchase or possession and enjoyment. Whileso, on 23.03.2013 when the defendant conducting agricultural operations, the plaintiffs along with their men and unruly elements came upon the defendant and made a big galata and abused him in filthy language and trying to dispossess the defendant. Then the defendant could resist the illegal highhanded acts of the plaintiffs with the help of neighbouring owners who admonished the defendants from doing so. The defendant also approached the SHO, V Satram P.S., to lodge a report, but the police did not take any action since the case is civil in nature.

Having no other go defendant filed a suit in O.S.No.220/2013 on the file of this court and also obtained Ad-interim injunction orders in I.A.No.237/2013 5 restraining the plaintiffs from interfering with the peaceful possession and enjoyment of the defendant in whatsoever manner and the said injunction orders are in force, hence the defendant prays to dismiss the suit.

5. Basing on the above pleadings, the following issues are framed for trial:

1. Whether the plaintiffs are entitled for

permanent injunction as prayed for?

2. To what relief?

6. To establish the case of the plaintiffs, the 1st plaintiff himself examined as PW1 and Ex.A1 to Ex.A5 were marked. On behalf of plaintiffs one

Thatiparti Ramanaiah examined as PW2. One Palicherla Naraiah examined as

PW3 and one Palicherla Rajaiah examined as PW4. On behalf of defendant, the defendant himself examined as DW1 and no documents were marked. On behalf of defendant, one Leburu Venkataiah's affidavit was filed, but he is not present to face the cross-examination, hence his evidence was eschewed. One

Thatiparthi Ramaiah examined as DW3.

7.Heard the arguments of learned counsels appearing on behalf of both the parties. Perused the material on record.

8. Issue No.1:

1. Whether the plaintiffs are entitled for

permanent injunction as prayed for?

The contention of the plaintiff is that originally the plaint schedule property is a Government Poramboke land and it was kept vacant. The plaintiffs occupied the same in the year 1995 and levelled the same and brought the same fit for cultivation and in the beginning they raised dry crops therein depending upon the seasons. Subsequently the plaintiffs installed borewell and obtained electricity service connection in the name of 1st plaintiff and now raising lemon garden therein which is now aged about 10 years and came up for yielding.

6

Further the 1st plaintiff also obtained loan over the plaint schedule property from the Andhra Pragathi Grameena Bank, Kasumur. Since the year 1995, nobody objected the peaceful possession and enjoyment of the plaint schedule property by the plaintiffs including the revenue authorities. The defendant also in the possession of Government Poramboke land adjacent to the plaint schedule property towards northern side of the same. But the defendant is continuously interfering in the peaceful possession of plaintiffs over the plaint schedule property and the defendant kept evil eye on the lemon garden and with intent to grab the plaint schedule property he got issued legal notice dated 03.02.2013 to the 1st plaintiff with false allegations claiming false claims over the plaint schedule property and since then the defendant and his men are repeatedly causing obstructions to the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property, hence the plaintiffs filed the present suit.

9. On the other hand the contention of the defendant is that he is the absolute owner of the land in an extent of Ac.3-49 cents of dry land comprises in Survey No.170/4 of Palicherlapadu village, Venkatachalam Mandal, having had allotted to him by the Government of Andhra Pradesh, Land Revenue in the year 1977 under D-Form patta for cultivating the land. Since then the defendant has been using the said land for cultivation. Since more than 30 years of period, the said land is in the occupation and enjoyment of the defendant only. The defendant has been granted pattadar passbook from the revenue authorities and also the defendant mutated his name in the revenue records and obtained the 10-1 account and NO.3 adangals. The Mandal Tahsildar, Venkatachalam also issued endorsement treating the plaint schedule property is in occupation, possession and enjoyment of the defendant. While so, recently when the defendant is intending to harvest the crops standing by engaging people, the plaintiffs came there and trespassed into the plaint schedule property along with their men and unruly elements and created nuisance at the land and obstructed the defendant. Further the defendant came to know that the 1st plaintiff availed loan at the Andhra Pragathi Grameena Bank, Kasumuru Branch over the plaint 7 schedule property and furthe the defendant issued a notice to the plaintiffs. The plaintiffs did not show any proof of documents that the Government allotted patta in their favour except some fabricated documents. Subsequently the defendant also filed O.S.No.220/2013, hence the defendant prays to dismiss the suit.

10.To establish the case of the plaintiffs, 1st plaintiff examined as PW1 and got marked Ex.A1 to Ex.A5. PW1 was cross-examined at length but nothing is elicited to discredit his evidence and in support of the pleas of the defendant.

On behalf of plaintiffs, Thatiparti Ramanaiah examined as PW2. One Palicherla

Naraiah examined as PW3 and one Palicherla Rajaiah examined as PW4. PW2 to

PW4 deposed evidence supporting the case of the plaintiff that the plaintiffs occupied the plaint schedule property and plaintiffs are in the possession of the plaint schedule property since more than 20 years and they raised lemon garden in the suit property and further they deposed that the defendant who are the occupier of the land on the northern side of the plaint schedule property are interfering in the possession of the plaintiffs over the plaint schedule property and causing troubles to the plaintiffs. PW2 to PW4 cross-examined but nothing is elicited to discredit their evidence and the evidence of Pws.2 to 4 could not shaken during their cross-examination. Pws.2 to 4 deposed evidence in onevoice that since 20 years the plaintiffs are cultivating the suit property by raising lemon garden and other dry crops.

11.To prove the pleas taken by the defendant, the defendant himself examined as DW1 and no documents were marked. DW1 stated in his cross- examination that he do not know whether the plaintiff obtained the electricity connection in his name to the land in survey No.170/4. Further he deposed that he do not remember whether he deposed evidence in O.S.No.228/2010 stating that the plaintiffs herein are in possession of the plaint schedule property. The defendant stated in his written statement that when he approached the Manager 8 of Andhra Pragathi Grameena Bank, Kasumur Branch he came to know that the 1st plaintiff availed crop loan from the said bank by showing 10-1 account and

No.3 adangal in favour of the plaintiff. Whereas DW1 stated in his cross- examination that he do not know that the plaintiff obtained the loan over the suit property from the Andhra Pragathi Grameena Bank, Kasumur Branch. The defendant stated in the written statement that the Government allotted patta to an extent of Ac.3.49 cents of dry land in survey No.170/4 of Palicherlapadu village, and since more than 30 years he is occupation of the said land and further the defendant also mutated his name in the revenue records and the revenue authorities also granted pattadar pass book, but the defendant did not file single paper to establish that the Government allotted patta in his name to the land in survey No.170/4.

12.Admittedly the suit property is a Government land. The documents filed by the plaintiffs and the evidence of Pws.2 to 4 shows that the plaintiffs are in possession of the plaint schedule property since long back. Though the defendant taken a plea that the Government allotted a patta to him for the land to an extent of Ac.3.49 cents in survey No.170/4, he did not file any single document to prove the same and further the defendant caused notice to the plaintiffs claiming right over the plaint schedule property, without any right or title for proof of the same. It shows that the defendant is interfering in the possession of the plaint schedule property. Therefore, it can be said that the plaintiffs able to establish their case through oral and documentary evidence, hence the plaintiffs are entitled for the permanent injunction as prayed for.

13.Admittedly the Government is the real owner of the plaint schedule property and the plaintiffs are only the possessers and the Government alone has right to take any steps against the plaintiffs but no one has right to disturb the possession of the plaintiffs over the plaint schedule property.

9

14.In view of the above discussions, it is held that the plaintiffs are entitled for the permanent injunction as prayed for. Accordingly this issue is answered in favour of the plaintiffs and against the defendant.

15. Issue No.2:

2. To what relief?

In view of the holding arrived at issue No.1, the suit is decreed with costs.

16. In the result, the suit is decreed with costs restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property.

Dictated to the personal Assistant, transcribed by her, corrected and

pronounced by me in the Open Court, this the 6th day of April, 2015.

III Addl.Junior Civil Judge, Nellore

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Plaintiffs side:For defendant side:

PW1:Palicherla VenuDW1:Thatiparthi Subbaramaiah PW2:Thatiparthi RamanaiahDW2:Leburu Venkataiah(eschewed) PW3: Palicherla NaraiahDW3:Thatiparthi Ramaiah PW4: Palicherla Rajaiah

Documents marked

For plaintiffs side:

Ex.A1: Electricity Bills 7 in Nos.

Ex.A2: Two photographs along with CD

Ex.A3: Copy of village Account NO.3.

Ex.A4: Bank pass book of 1st plaintiff.

Ex.A5:Legal notice dated 03.02.2013 issued by the defendant to the 1st plaintiff.

For defendant side: -nil-

III Addl.Junior Civil Judge, Nellore

1

IN THE COURT OF THE III ADDITIONAL JUNIOR CIVIL JUDGE: NELLORE

Tuesday , this the 7th day of April, 2015

Present:: S.P.D. Vennela, B.A.LL.M.,M.H.R.M. III Addl. Junior Civil Judge, Nellore

O.S.No.1074/2010

1.Pamuru Santhamma

2.Pamuru Srinivasulu Reddy .... Plaintiffs

Vs

Pamuru Pitchi Reddy .... Defendant

This suit is coming on 23-03-2015before this Court for final hearing in the presence of Sri V.Upendra Rao, Advocate for plaintiffs and Sri V.Jagan Mohan Rao, Advocate for the defendant and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs for restraining the defendant, his men and agents from constructing illegal constructions in the ABCDEFGH site shown in the plaint plan and for costs.

2. The brief averments of the plaint are as follows:

The case of the plaintiff is that the husband of the 1st plaintiff and father of 2nd plaintiff namely Pamuru Jayarami Reddy having 30 ankanams ancestral property and he had been in possession and enjoyment of the same. During his life time the said Pamuru Jayarami Reddy also purchased an extent of 15 ½ ankanams towards northern side of the said 30 ankanams site from Pamuru

Gopal Reddy on 17.02.1989 under registered sale deed vide Document

No.47/1989 of S.R.O, Indukurpet and since then he has been in possession and enjoyment of the same. The said Jayarami Reddy constructed an extent of 10 ankanams RCC building in the said total 45 ½ ankanams. Thus the said Jayarami

Reddy was in possession and enjoyment of the said entire extent of 45 ½ ankanams. As per the recitals of the document No.47/1989 of SRO, Indukurpet there is a way to the said 15 ½ ankanams from Mypadu Road which is situated 2 towards northern side of the said site. The said way is shown as ABCDEFGH in the plaint plan. The width of ABGH is about 2 ½ feet, the width of BC and DE is about 22 feet and the length of the BEDC is about 28 feet and the same is about 12 yards length and 6 yards width. The said Pamuru Jayarami Reddy died intestate on 14.08.1990 leaving behind him the plaintiffs as his legal heirs.

Since the plaintiffs continued their possession and enjoyment over the plaint schedule property. Plaintiffs 1 and 2 are living together in the plaint schedule property. 1st defendant is paying house tax to the Gram Panchayat, Jagadevipet to the plaint schedule property. 1st plaintiff also paying electricity consumption charges for the plaint schedule property. The father of the defendant namely

Pamuru Kota Reddy purchased an extent of 11 ankanams of site towards northern side of the plaint schedule property on 26.03.1960 from Tikkavarapu

Kodanda Rami Reddy and others. The said Pamuru Kota Reddy died and the defendant succeeded the said 11 ankanams property and he constructed a house therein. The defendant is no way concerned with the ABCDEFGH site which is the way to the plaint schedule property which is mentioned in

Doct.No.47/1989 of S.R.O., Indukurpet. In the year 1990 due to advice of Vastu

Pandit the plaintiffs constructed a compound wall towards northern side of their house and opened a main gate towards eastern side. Due to advice of the said

Vastu Pandit the plaintiffs are using the main gate for their ingress and egress and leaving the said ABCDEFGH site for construction of septic tank etc and constructed septic tank in the BCDEFG site. Since one week the defendant without any manner of right over ABCDEFGH site and he is trying to grab the same by constructing a compound wall. The plaintiffs questioned about the illegal acts of the defendant but the defendant gave evasive reply and trying to construct the compound wall. If the defendant is allowed to do so, serious loss will be caused to the plaintiffs. The defendant is having large following in the village and having the support of unruly elements. The plaintiffs are unable to resist the illegal acts of the defendant. The plaintiffs approached S.H.O.,

Indukurpet PS and presented a report. But the police had not shown any interest on the ground that the dispute is civil nature. Hence the suit.

3

3. The defendant filed written statement. The brief averments of written statement filed by defendant are as follows:

The defendant filed written statement denying some of the material allegations of the plaint and further contends that it may be true that the father of 2nd plaintiffhad purchased 15 ½ ankanams of site under a sale deed dated 17.02.1989 but it not on the northern side of the said 30 ankanams of site. It may be true that he constructed a house in an extent of 10 ankanams but it is not within 45 ½ ankanams owned by him. It is true that Pamuru Kotareddy the father of defendant purchased 11 ankanams of site on 26.03.1960 from

Thikkavarapu Kodandaramireddy and others. The father of the defendant was owning ancestral property in an extent of 39 ankanams of site and he also purchased 11 ankanams of site under sale deed of the year 1960 and thus he owned 50 ankanams of site. After his death, the defendant and his brother have taken each 25 ankanams of site. Out of 25 ankanams of site of the defendant, the defendant sold 3 ankanams of site to one Audiseshareddy who is the brother of the defendant. Thus the defendant is in possession and enjoyment of 22 ankanams and living by constructing a residential house therein. As admitted by the plaintiff, the property of the defendant is having his property on its northern side. There is a compound wall on the northern side of the schedule property since a long time. The plaintiff unauthorisedly constructed septic tank and when it was questioned, the plaintiffs have agreed to remove the same. When the defendant strongly demanded to remove the said septic tank but they both filed this suit with false allegations. The schedule shown in the plaint and the plaint plan are incorrect and they are misleading, hence the defendant prayed to dismiss the suit.

4. Basing on the above pleadings, the following issues are framed for trial:

1. Whether the plaintiffs are entitled for

permanent injunction as prayed for?

2. To what relief?

4

5. To establish the case of the plaintiffs, the 2nd plaintiff himself examined as PW1 and got marked Ex.A1 to A4. On behalf of plaintiffs one Pasala Suresh's affidavit was filed and he did not turn up to face cross-examination inspite of conditional order, hence his evidence was eschewed. One Koppala

Venkateswarlu examined as PW3. On behalf of defendant, the defendant himself examined as DW1 and got marked Ex.B1 and Ex.B2. On behalf of defendant, one Pamuru Subba Reddy examined as DW2. One Maggam Narasimham examined as DW3. Sk.Shafi Saheb, Advocate/Commissioner examined as CW1 and got marked Ex.C1.

6.Heard the arguments of learned counsels appearing on behalf of the both the parties. Perused the material on record.

7. Issue No.1:

1. Whether the plaintiffs are entitled for

permanent injunction as prayed for?

The contention of the plaintiffs is that the husband of the 1st plaintiff and father of 2nd plaintiff namely Pamuru Jayarami Reddy having 30 ankanams ancestral property and during his life time he purchased an extent of 15 ½ ankanams towards northern side of the said 30 ankanams site from Pamuru

Gopal Reddy under registered sale deed, dated 17.02.1989 and since then he has been in possession and enjoyment of the same and he also constructed an extent of 10 ankanams RCC building in the said total 45 ½ ankanams. As per the recitals of the registered sale deed, dated 17.02.1989 there is a way to the said 15 ½ ankanams from Mypadu Road which is situated towards northern side of the said site. The father of the 2nd plaintiff died intestate on 14.08.1990 leaving behind him the plaintiffs as his legal heirs. Since then they are in possession and enjoyment of the plaint schedule property. The father of the defendant purchased an extent of 11 ankanams of site towards northern side of the plaint schedule property and after death of father of defendant, the defendant succeeded the said 11 ankanams property and constructed a house therein. The defendant is no way concerned with the passage which is on the 5 northern side of the plaint schedule property. In the year 1990 due to advice of

Vastu Pandit the plaintiffs constructed a compound wall towards northern side of their house and opened a main gate towards eastern side leaving the said passage for construction of septic tank and constructed septic tank in the said passage. But since one week prior to filing this suit the defendant without manner of right, he is trying to grab the passage shown in the plaint plan by constructing a compound wall, hence the plaintiffs filed the present suit.

8.On the other hand, the contention of the defendant is that it may be true that the father of the 2nd plaintiff had purchased 15 ½ ankanams of site and he constructed a house in an extent of 10 ankanams. Further the defendant contends that the father of defendant is owning ancestral property in an extent of 39 ankanams of site and also purchased 11 ankanams of site under sale deed of the year 1960 and after his death, the defendant and his brother partitioned 25 ankanams each and the defendant sold 3 ankanams of site to his another brother out of 25 ankanams and the defendant is in possession and enjoyment of remaining extent of 22 ankanams and there is a compound wall on the northern side of the schedule property since a long time. The plaintiff unauthorisedly constructed septic tank and when the defendant questioned, the plaintiffs agreed to remove the same but filed the present suit with false allegations, hence the defendant prayed to dismiss the suit.

9.To establish the case of the plaintiffs, the 2nd plaintiff himself examined as PW1 and got marked Ex.A1 to Ex.A4. The main contention of the plaintiffs is that there is way to the said 15 ½ ankanams of site which is purchased by the father of the 2nd plaintiff under Ex.A1 and the said way is shown as ABCDEFGH in the plaint plan but the defendant is making efforts to raise constructions in the said way, hence the plaintiffs filed the suit. Ex.A1 shows that the father of 2nd plaintiff and the husband of the 1st plaintiff purchased an extent of 15 ½ ankanams of site. In that sale deed the northern boundary shown as site of Pamuru Pitchi Reddy some extent and way from road 6 to reach the site. Ex.A1 establishes the right over the ABCDEFGH passage by the plaintiffs. The defendant did not deny the relationship of plaintiffs with the said Jayarami Reddy. PW1 was cross-examined at length but nothing is elicited in support of the plea of the defendant to discredit the evidence of PW1. On behalf of plaintiffs, one Koppala Venkateswarlu examined as PW3. He deposed his evidence supporting the case of the plaintiffs.

10.To prove the pleas taken by the defendant, the defendant himself examined as DW1 and got marked Ex.B1 and Ex.B2. The main contention of the defendant is that his father owning an extent of 39 ankanams of site and he also purchased 11 ankanams of site and after death of the father of the defendant, the defendant and his brother have partitioned the said 50 ankanams of site into 25 ankanams of each and executed a partition deed and the defendant is in the possession of 22 ankanams and living therein by constructing a residential house. To prove this contention, the defendant got marked Ex.B2 partition deed.

But in the partition deed, no survey number or patta number were mentioned in which the land that possessed by them. More over the defendant is not claiming any right over the plaint schedule property. The defendant stated in his written statement that the plaintiffs unauthorisedly constructed septic tank but the defendant did not mention that the plaintiffs are unauthorisedly constructed the septic tank in the land of the defendant.

11.One Maggam Narasimham examined as DW3 on behalf of defendant.

He admitted in his cross-examination that “it is true the plaintiffs constructed bath rooms on their northerns side and using the same since 12 years”. Further he admitted that he do not know the extent of land owned by the ancestors of the defendant. This admission of DW3 goes to show that the plaintiffs are having land on their northern side which is shown as ABCDEFGH way. In the present case Advocate/Commissioner also appointed to inspect the plaint schedule property and ABCDEFGH site and to note down the existing physical features. Accordingly he executed commissioner's warrant and filed his report 7 along with rough sketch. The Advocate/Commissioner rough sketch also shows that there is a passage on the northern side of the plaint schedule property which leads to the Mypadu road. Therefore, as per the evidence lead by the

PW1 and documents and as per the report filed by the Advocate/Commissioner shows that the plaintiffs are having a way on the northern side of their site which is shown as ABCDEFGH in the plaint plan. DW1 admitted in his cross- examination that “it is true that the plaintiffs gave a police report against him in the year 2010”. It shows that the defendant is interfering in the property of the plaintiffs. Therefore, it can be said that the plaintiffs established their case, hence they are entitled for the permanent injunction as prayed for.

12.In view of the above discussions, it is held that the plaintiffs are entitled for the permanent injunction as prayed for. Accordingly this issue is answered in favour of plaintiffs against the defendant.

13. Issue No.2:

2. To what relief?

In view of the holding arrived at issue No.1, the suit is decreed with costs.

14. In the result, the suit is decreed with costs restraining the defendant, his men and agents from constructing illegal constructions in the ABCDEFGH site shown in the plaint plan

Dictated to the personal Assistant, transcribed by her, corrected and

pronounced by me in the Open Court, this the 7th day of April, 2015.

III Addl.Junior Civil Judge, Nellore

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Plaintiffs side:For defendant side:

PW1:Pamuru Srinivasulu ReddyDW1:Pamuru Pitchi Reddy

PW2:Pasala Suresh(eschewed)DW2:Pamuru Subba Reddy

PW3:Koppala VenkateswarluDW3: Maggam Narasimham 8

For Court:

CW1: Sk.Shafi Saheb

Documents marked

For plaintiffs side:

Ex.A1:Certified copy of registered sale deed, dated 17.02.1989.

Ex.A2:Property tax demand notice and receipt.

Ex.A3:Electricity demand notice, dated 06.07.2010.

Ex.A4:Death certificate issued by Sarpanch Leguru Bit-II

For defendant side:

Ex.B1:Registered sale deed, dated 21.03.1960.

9

Ex.B2:Unregistered partition deed, dated 20.10.1983.(stamp duty penalty paid)

For Court:

Ex.C1:Advocate/Commissioner report along with photos and C.D., rough sketch.

III Addl.Junior Civil Judge, Nellore

 1 C.C.No.316/2012

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT : NELLORE.

Friday, this the 7th day of November, 2014

Present : Smt.S.P.D.Vennela III Addl.Junior Civil Judge, Nellore. FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

CALENDER CASE No.316/2012 (Old Case No.651/2011 on the file of V AJMFC Court, Nellore)

Yerrannagari Krishna Reddy S/o.Sami Reddy Hindu, aged 61 years retired employee resident of 2B, 2nd Floor, Kings Court Apartment, Magunta Lay Out, Main Road,

Nellore City....Complainant

And

Kaluva Gopal Reddy S/o.Peddi Reddy, Hindu, aged 60 years Ex.Market Committee Chairman D.No.22/11/4/662 Road No.2, 2nd Cross Road, Reddys Colony, Madanapalle Town,Chittoor District -517325.… Accused

This case is coming on 31.10.2014 for final hearing before me in the presence of Sri P.Harshavarthana Reddy, Advocate for the complainant and of Sri S.Rama Krishna Prasad, Advocate for accused and having stood over till this day for consideration, this court delivered the following : -

JUDGMENT

The complainant filed the present complaint under Section 138 and 142 (b) of Negotiable Instrument Act against the accused praying the court to punish the accused according to law and for payment of compensation to the complainant under Section 357 Cr.P.C.

2.The brief facts of the complaint are that the accused is the family friend of complainant and due to acquaintance the accused approached the complainant at his residence and borrowed an amount of Rs.3,00,000/- from the complainant as hand loan for his urgent necessities and issued a cheque

dated 12.07.2011 bearing No.676331 for Rs.3,00,000/- drawn on Andhra Bank,

Madanapalle branch, Chittoor District. The accused promised the complainant 2 C.C.No.316/2012 that he will arrange sufficient funds in his account. Accordingly, the complainant presented the said cheque on 14.07.2011 in Canara Bank,

Magunta lay out Branch, Nellore City for collection but the banker of accused dishonoured the said cheque on the ground that the “insufficient funds”. The complainant received the information of dishonour from Canara Bank,

Magunta Lay out Branch, Nellore city on 16.07.2011. The complainant sent a notice as contemplated under the provisions of Negotiable Instruments Act and subsequently the complainant filed private complaint against the accused in CC.No.616/2011 on the file of 5th Addl. Judicial Magistrate of I Class, Nellore.

Meanwhile, the accused approached the complainant and borrowed an amount of Rs.2,75,000/- from the complainant as hand loan for his necessities on 30.07.2011 and issued a cheque bearing No.676332 for Rs.2,75,000/- drawn on Andhra Bank, Madanapalle Branch, Chittoor District in the presence of respectable witness towards discharge of the said debt. The accused request the complainant that he will pay the dishonoured cheque amount for the above said cheque bearing No.676331 and further promised to arrange sufficient funds in his account by 30.07.2011 and to present the said cheque bearing No.676332 on the said date or further dates. The complainant client believed the accused promises and presented the said cheque bearing

No.676332 on 11.10.2011 in Canara Bank, Magunta Layout Branch, Nellore city for collection. But banker of accused dishonoured the said cheque bearing No.676332 on the ground of insufficient funds. His client received the information of dishonour from Canara Bank, Magunta Layout Branch, Nellore city on 12.10.2011. The complainant has issued a legal notice dated 31.10.2011 through his advocate under the provisions of Negotiable

Instruments Act to his two residential houses addresses calling upon the accused to pay the cheque amount Rs.2,75,000/- within 15 days of the receipt of the said notice. The legal notice copy sent to the address mentioned the description of the accused was served and whereas another notice copy sent to his village address is returned as continuously absent. But the accused 3 C.C.No.316/2012 failed to pay the said cheque amount. The accused had borrowed the said amount from the complainant which is legally enforceable debt and for the said debt the accused had issued the said cheque in favour of the complainant and made promises that he will arrange amounts in his account. So as to enable the complainant to encash the said cheque. But with dishonest intention the accused failed to honour the said cheque. So the accused committed the offences of cheating and the offences under Section 138 and 142(b) of Negotiable Instruments Act.

3. The case was taken on file under section 138 of Negotiable

Instrument Act by the learned V Additional Judicial Magistrate of I Class,

Nellore against the accused and registered it as C.C.No.651/2011 and subsequently this case was transferred to this court as per the proceedings of the Hon’ble District Judge, Nellore in Dis.No.2100, dated 18.04.2012 and the same was renumbered as C.C.No.316/2012.

4. On appearance of the accused, copies of the documents were furnished to him as required Under Section.207 Criminal Procedure Code 1973.

5. On 18.02.2013, the accused was examined Under section 251

Cr.P.C, the accusation was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6.In order to prove the case of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P7. On behalf of complainant, P.Rajendra Prasad, Senior Branch Manager of Canara Bank examined as PW2.

7.After closure of the complainant side evidence, the accused was examined under section 313 Cr.P.C. by explaining the incriminating material appearing against him in the evidence of complainant witnesses, for which he 4 C.C.No.316/2012 denied the offence and reported he has defence witnesses to be examined on his behalf. On 14.10.2014, the accused reported no defence evidence.

8.Written arguments of the complainant and accused filed. Heard the arguments of learned counsels appearing on behalf of both the sides.

Perused the material on record.

9. Now the points for determination are that

1. Whether the accused committed the offence under Section 138 of Negotiable Instrument Act?

2. Whether the complainant proved the guilt of the accused beyond all reasonable doubt?

10.POINT No.1:

The contention of the complainant is that the accused is his family friend and due to the acquaintance the accused borrowed an amount of

Rs.2,75,000/- from the complainant as hand loan for his urgent necessities on 30.07.2011 and issued cheque for Rs.2,75,000/- in the presence of respective witness, but the said cheque was dishonoured on the ground that funds insufficient. Then the complainant issued legal notice to the accused and the accused received the said notice, but failed to pay the cheque amount, hence he filed this complaint.

11.The accused denied the contents of the complaint and taken a plea that he issued a cheque to the complainant for security purpose while the complainant and the accused both are doing real estate business.

12. To establish the case of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P7 and on behalf of the complainant Canara Bank Senior Manager got examined as PW2. The learned counsel for the complainant submitted the arguments that the accused borrowed an amount of Rs.2,75,000/- and Rs.3,00,000/- and issued Ex.P2 5 C.C.No.316/2012 cheque and to establish that the accused borrowed amount from him the accused issued Ex.P1 letter and the accused failed to prove the plea taken by him, hence the complainant established his case and section 139 of

Negotiable Instrument Act will come into play and prayed to convict the accused.

13.The learned counsel for the accused submitted the arguments that the accused did not borrow any amount from the complainant and the accused issued Ex.P2 cheque to the complainant for the security purpose and the complainant failed to establish that the accused borrowed a sum of

Rs.2,75,000/- from him and statutory notice also not served to the accused and the complainant failed to prove initial burden of existing debt and issuance of Ex.P2 cheque and further argued that the accused did not issue

Ex.P1 letter to the complainant and prayed to acquit him.

14. In the case of Section 138 of Negotiable Instrument Act the initial burden lies on the complainant to establish that the accused issued the cheque in discharge of legally enforceable debt to the complainant and the said cheque was dishonoured. In the present case, the accused denied the issuance of cheque in discharge of legally enforceable debt. The case of the complainant is that the accused borrowed a sum of Rs.2,75,000/- from him on 30.07.2011 and issued Ex.P2 cheque to him in the presence of respective witnesses. But the complainant did not examine the said respective witnesses and also did not mention the names of the respective witnesses in the complaint itself to establish that the accused borrowed an amount of

Rs.2,75,000/- and in consideration the accused issued Ex.P2 cheque. The complainant stated in his complaint that the accused is a family friend, but whereas he stated in his cross-examination that “I do not know whether the accused doing real estates business or not.” The complainant stated in his chief affidavit that the accused borrowed a sum of Rs.2,75,000/- and another amount of Rs.3,00,000/- from him and executed a letter dated 11.05.2011 in 6 C.C.No.316/2012 his favour. But whereas the complainant did not state this fact in his complaint. Ex.P1 is the letter. In Ex.P1 it is only mentioned that Rs.5,75,000/- and in words Rupees five lakhs seventy five thousands only, but it is not stated that who given that amount and to whom that amount was given.

Therefore, it can be said that Ex.P1 letter is no way helpful to the complainant in proving his case that the accused borrowed amount from him as alleged by the complainant. The complainant did not adduce any other evidence to show that the accused borrowed a sum of Rs.2,75,000/- and Rs.3,00,000/- from him and issued Ex.P2-cheque in discharge of legally enforceable debt. Therefore, it can be said that the complainant failed to establish his case.

15.The learned counsel for the complainant submitted the arguments that the Ex.P1 letter is fully supported the case of the complainant and established his case. To support his contention, he submitted the following citation in Madanmohan Jena and others Vs. Srinath Samal and others reported in AIR 1973 ORISSA 22 (V 60 C 9). It is held in para 5 “.... The presumption arising under Section 118 of the Negotiable Instruments Act is that the hand-note is fuly supported by the consideration mentioned therein”.

16.But whereas as discussed above, Ex.P1 letter is not establishing the case of the complainant. Therefore, the above citation is not applicable to the present case on hand.

17.The learned counsel for the complainant further submitted the arguments and filed written arguments stating that when the accused denied the issuance of cheque in discharge of legally enforceable debt, he must have entered into the witness box or get some one entered and produced the documents in support of his case. In support of the arguments submitted by the complainant, he cited the following citations.

18.In a case R.Rajendran Vs., A.J.Yuvaraj Reddy and another reported in 2012(3) ALT (Crl.) 247 (A.P.). Wherein the Hon'ble High Court 7 C.C.No.316/2012 of A.P. held that :

“If really accused not issued cheques in question towards any legally enforceable debt, he must have entered the witness box or get some one entered and produced the documents in support of his case.”

19.He also relied on another case in M/s. Videocon international

Ltd., Rep. by Khem Chand Khatri, Begumpet, Hyderabad Vs.,

M/s.Innovations, rep. by its Proprietor Anjan Kumar and others

reported in 2011(3) ALT (Crl.) 183 (A.P.). Wherein the Hon'ble High Court of A.P. held that :

“Initial burden is on the accused to prove that the dishonoured cheques were not supported by any legally enforceable debt or other liability”

20.It is pertinent to mention that in the case of Krishna Janardhan

Bhat Vs. Dattatraya G.Hegde reported in 2008 AIR SCW 738. The

Hon'ble Supreme Court held that :

“An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a consideration right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different”.

21.Basing on the above citation, the accused need not step into witness box as argued by the complainant. Further as discussed above, it can be said that the complainant failed to establish his case and the accused able to rebut the evidence of complainant. Therefore, Section 139 of Negotiable

Instrument Act would not available to the complainant. The complainant has to establish his case beyond all reasonable doubt against the accused in order to prove his guilty for the offence under Section 138 of Negotiable Instrument

Act. As discussed above, the complainant failed to establish his case.

 8 C.C.No.316/2012

22.Point No.2:

In view of the above discussed facts and circumstances, this court is of the opinion that the evidence placed before the court by the complainant is not sufficient to hold that the accused has committed an offence under

Section 138 of Negotiable Instrument Act and that benefit of doubt shall be given to the accused.

23.In the result, the accused is found not guilty for the offence under Section 138 of Negotiable Instrument Act and accordingly he is acquitted under Section 255(1) Cr.P.C. for the said offence.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 7th day of November, 2014.

III Additonal Junior Civil Judge, Nellore FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

Appendix of Evidence

Witnesses examined

For Complainant: For defence:

PW1: Yerrannagari Krishna Reddy-none- PW2: P.Rajendra Prasad

Documents marked

For Complainant:

Ex.P1: Notarised copy of letter, dated 11.05.2011 executed by the accused in favour of complainant.

Ex.P2: Original cheque bearing No.676332, dated 11.10.2011.

Ex.P3: Return Memo issued by the bank, dated 12.10.2011.

Ex.P4: Office copy of legal notice, dated 31.10.2011.

Ex.P5: Postal receipts.

Ex.P6: Returned cover of one of address.

Ex.P7: Served acknowledgment copy.

For Defence: -nil-

III Addl.Junior Civil Judge, Nellore FACSpl. JMFC

 1 C.C.No.316/2012

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT : NELLORE.

Friday, this the 7th day of November, 2014

Present : Smt.S.P.D.Vennela III Addl.Junior Civil Judge, Nellore. FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

CALENDER CASE No.316/2012 (Old Case No.651/2011 on the file of V AJMFC Court, Nellore)

Yerrannagari Krishna Reddy S/o.Sami Reddy Hindu, aged 61 years retired employee resident of 2B, 2nd Floor, Kings Court Apartment, Magunta Lay Out, Main Road,

Nellore City....Complainant

And

Kaluva Gopal Reddy S/o.Peddi Reddy, Hindu, aged 60 years Ex.Market Committee Chairman D.No.22/11/4/662 Road No.2, 2nd Cross Road, Reddys Colony, Madanapalle Town,Chittoor District -517325.… Accused

This case is coming on 31.10.2014 for final hearing before me in the presence of Sri P.Harshavarthana Reddy, Advocate for the complainant and of Sri S.Rama Krishna Prasad, Advocate for accused and having stood over till this day for consideration, this court delivered the following : -

JUDGMENT

The complainant filed the present complaint under Section 138 and 142 (b) of Negotiable Instrument Act against the accused praying the court to punish the accused according to law and for payment of compensation to the complainant under Section 357 Cr.P.C.

2.The brief facts of the complaint are that the accused is the family friend of complainant and due to acquaintance the accused approached the complainant at his residence and borrowed an amount of Rs.3,00,000/- from the complainant as hand loan for his urgent necessities and issued a cheque

dated 12.07.2011 bearing No.676331 for Rs.3,00,000/- drawn on Andhra Bank,

Madanapalle branch, Chittoor District. The accused promised the complainant 2 C.C.No.316/2012 that he will arrange sufficient funds in his account. Accordingly, the complainant presented the said cheque on 14.07.2011 in Canara Bank,

Magunta lay out Branch, Nellore City for collection but the banker of accused dishonoured the said cheque on the ground that the “insufficient funds”. The complainant received the information of dishonour from Canara Bank,

Magunta Lay out Branch, Nellore city on 16.07.2011. The complainant sent a notice as contemplated under the provisions of Negotiable Instruments Act and subsequently the complainant filed private complaint against the accused in CC.No.616/2011 on the file of 5th Addl. Judicial Magistrate of I Class, Nellore.

Meanwhile, the accused approached the complainant and borrowed an amount of Rs.2,75,000/- from the complainant as hand loan for his necessities on 30.07.2011 and issued a cheque bearing No.676332 for Rs.2,75,000/- drawn on Andhra Bank, Madanapalle Branch, Chittoor District in the presence of respectable witness towards discharge of the said debt. The accused request the complainant that he will pay the dishonoured cheque amount for the above said cheque bearing No.676331 and further promised to arrange sufficient funds in his account by 30.07.2011 and to present the said cheque bearing No.676332 on the said date or further dates. The complainant client believed the accused promises and presented the said cheque bearing

No.676332 on 11.10.2011 in Canara Bank, Magunta Layout Branch, Nellore city for collection. But banker of accused dishonoured the said cheque bearing No.676332 on the ground of insufficient funds. His client received the information of dishonour from Canara Bank, Magunta Layout Branch, Nellore city on 12.10.2011. The complainant has issued a legal notice dated 31.10.2011 through his advocate under the provisions of Negotiable

Instruments Act to his two residential houses addresses calling upon the accused to pay the cheque amount Rs.2,75,000/- within 15 days of the receipt of the said notice. The legal notice copy sent to the address mentioned the description of the accused was served and whereas another notice copy sent to his village address is returned as continuously absent. But the accused 3 C.C.No.316/2012 failed to pay the said cheque amount. The accused had borrowed the said amount from the complainant which is legally enforceable debt and for the said debt the accused had issued the said cheque in favour of the complainant and made promises that he will arrange amounts in his account. So as to enable the complainant to encash the said cheque. But with dishonest intention the accused failed to honour the said cheque. So the accused committed the offences of cheating and the offences under Section 138 and 142(b) of Negotiable Instruments Act.

3. The case was taken on file under section 138 of Negotiable

Instrument Act by the learned V Additional Judicial Magistrate of I Class,

Nellore against the accused and registered it as C.C.No.651/2011 and subsequently this case was transferred to this court as per the proceedings of the Hon’ble District Judge, Nellore in Dis.No.2100, dated 18.04.2012 and the same was renumbered as C.C.No.316/2012.

4. On appearance of the accused, copies of the documents were furnished to him as required Under Section.207 Criminal Procedure Code 1973.

5. On 18.02.2013, the accused was examined Under section 251

Cr.P.C, the accusation was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6.In order to prove the case of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P7. On behalf of complainant, P.Rajendra Prasad, Senior Branch Manager of Canara Bank examined as PW2.

7.After closure of the complainant side evidence, the accused was examined under section 313 Cr.P.C. by explaining the incriminating material appearing against him in the evidence of complainant witnesses, for which he 4 C.C.No.316/2012 denied the offence and reported he has defence witnesses to be examined on his behalf. On 14.10.2014, the accused reported no defence evidence.

8.Written arguments of the complainant and accused filed. Heard the arguments of learned counsels appearing on behalf of both the sides.

Perused the material on record.

9. Now the points for determination are that

1. Whether the accused committed the offence under Section 138 of Negotiable Instrument Act?

2. Whether the complainant proved the guilt of the accused beyond all reasonable doubt?

10.POINT No.1:

The contention of the complainant is that the accused is his family friend and due to the acquaintance the accused borrowed an amount of

Rs.2,75,000/- from the complainant as hand loan for his urgent necessities on 30.07.2011 and issued cheque for Rs.2,75,000/- in the presence of respective witness, but the said cheque was dishonoured on the ground that funds insufficient. Then the complainant issued legal notice to the accused and the accused received the said notice, but failed to pay the cheque amount, hence he filed this complaint.

11.The accused denied the contents of the complaint and taken a plea that he issued a cheque to the complainant for security purpose while the complainant and the accused both are doing real estate business.

12. To establish the case of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P7 and on behalf of the complainant Canara Bank Senior Manager got examined as PW2. The learned counsel for the complainant submitted the arguments that the accused borrowed an amount of Rs.2,75,000/- and Rs.3,00,000/- and issued Ex.P2 5 C.C.No.316/2012 cheque and to establish that the accused borrowed amount from him the accused issued Ex.P1 letter and the accused failed to prove the plea taken by him, hence the complainant established his case and section 139 of

Negotiable Instrument Act will come into play and prayed to convict the accused.

13.The learned counsel for the accused submitted the arguments that the accused did not borrow any amount from the complainant and the accused issued Ex.P2 cheque to the complainant for the security purpose and the complainant failed to establish that the accused borrowed a sum of

Rs.2,75,000/- from him and statutory notice also not served to the accused and the complainant failed to prove initial burden of existing debt and issuance of Ex.P2 cheque and further argued that the accused did not issue

Ex.P1 letter to the complainant and prayed to acquit him.

14. In the case of Section 138 of Negotiable Instrument Act the initial burden lies on the complainant to establish that the accused issued the cheque in discharge of legally enforceable debt to the complainant and the said cheque was dishonoured. In the present case, the accused denied the issuance of cheque in discharge of legally enforceable debt. The case of the complainant is that the accused borrowed a sum of Rs.2,75,000/- from him on 30.07.2011 and issued Ex.P2 cheque to him in the presence of respective witnesses. But the complainant did not examine the said respective witnesses and also did not mention the names of the respective witnesses in the complaint itself to establish that the accused borrowed an amount of

Rs.2,75,000/- and in consideration the accused issued Ex.P2 cheque. The complainant stated in his complaint that the accused is a family friend, but whereas he stated in his cross-examination that “I do not know whether the accused doing real estates business or not.” The complainant stated in his chief affidavit that the accused borrowed a sum of Rs.2,75,000/- and another amount of Rs.3,00,000/- from him and executed a letter dated 11.05.2011 in 6 C.C.No.316/2012 his favour. But whereas the complainant did not state this fact in his complaint. Ex.P1 is the letter. In Ex.P1 it is only mentioned that Rs.5,75,000/- and in words Rupees five lakhs seventy five thousands only, but it is not stated that who given that amount and to whom that amount was given.

Therefore, it can be said that Ex.P1 letter is no way helpful to the complainant in proving his case that the accused borrowed amount from him as alleged by the complainant. The complainant did not adduce any other evidence to show that the accused borrowed a sum of Rs.2,75,000/- and Rs.3,00,000/- from him and issued Ex.P2-cheque in discharge of legally enforceable debt. Therefore, it can be said that the complainant failed to establish his case.

15.The learned counsel for the complainant submitted the arguments that the Ex.P1 letter is fully supported the case of the complainant and established his case. To support his contention, he submitted the following citation in Madanmohan Jena and others Vs. Srinath Samal and others reported in AIR 1973 ORISSA 22 (V 60 C 9). It is held in para 5 “.... The presumption arising under Section 118 of the Negotiable Instruments Act is that the hand-note is fuly supported by the consideration mentioned therein”.

16.But whereas as discussed above, Ex.P1 letter is not establishing the case of the complainant. Therefore, the above citation is not applicable to the present case on hand.

17.The learned counsel for the complainant further submitted the arguments and filed written arguments stating that when the accused denied the issuance of cheque in discharge of legally enforceable debt, he must have entered into the witness box or get some one entered and produced the documents in support of his case. In support of the arguments submitted by the complainant, he cited the following citations.

18.In a case R.Rajendran Vs., A.J.Yuvaraj Reddy and another reported in 2012(3) ALT (Crl.) 247 (A.P.). Wherein the Hon'ble High Court 7 C.C.No.316/2012 of A.P. held that :

“If really accused not issued cheques in question towards any legally enforceable debt, he must have entered the witness box or get some one entered and produced the documents in support of his case.”

19.He also relied on another case in M/s. Videocon international

Ltd., Rep. by Khem Chand Khatri, Begumpet, Hyderabad Vs.,

M/s.Innovations, rep. by its Proprietor Anjan Kumar and others

reported in 2011(3) ALT (Crl.) 183 (A.P.). Wherein the Hon'ble High Court of A.P. held that :

“Initial burden is on the accused to prove that the dishonoured cheques were not supported by any legally enforceable debt or other liability”

20.It is pertinent to mention that in the case of Krishna Janardhan

Bhat Vs. Dattatraya G.Hegde reported in 2008 AIR SCW 738. The

Hon'ble Supreme Court held that :

“An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a consideration right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different”.

21.Basing on the above citation, the accused need not step into witness box as argued by the complainant. Further as discussed above, it can be said that the complainant failed to establish his case and the accused able to rebut the evidence of complainant. Therefore, Section 139 of Negotiable

Instrument Act would not available to the complainant. The complainant has to establish his case beyond all reasonable doubt against the accused in order to prove his guilty for the offence under Section 138 of Negotiable Instrument

Act. As discussed above, the complainant failed to establish his case.

 8 C.C.No.316/2012

22.Point No.2:

In view of the above discussed facts and circumstances, this court is of the opinion that the evidence placed before the court by the complainant is not sufficient to hold that the accused has committed an offence under

Section 138 of Negotiable Instrument Act and that benefit of doubt shall be given to the accused.

23.In the result, the accused is found not guilty for the offence under Section 138 of Negotiable Instrument Act and accordingly he is acquitted under Section 255(1) Cr.P.C. for the said offence.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 7th day of November, 2014.

III Additonal Junior Civil Judge, Nellore FAC Judl.Magistrate of I Class for Special Mobile Court, Nellore.

Appendix of Evidence

Witnesses examined

For Complainant: For defence:

PW1: Yerrannagari Krishna Reddy-none- PW2: P.Rajendra Prasad

Documents marked

For Complainant:

Ex.P1: Notarised copy of letter, dated 11.05.2011 executed by the accused in favour of complainant.

Ex.P2: Original cheque bearing No.676332, dated 11.10.2011.

Ex.P3: Return Memo issued by the bank, dated 12.10.2011.

Ex.P4: Office copy of legal notice, dated 31.10.2011.

Ex.P5: Postal receipts.

Ex.P6: Returned cover of one of address.

Ex.P7: Served acknowledgment copy.

For Defence: -nil-

III Addl.Junior Civil Judge, Nellore FACSpl. JMFC