Smt.S.Rajani

1 O.S 195/2013 dt. 2-5-2015

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NELLORE

Dated this the 2 nd day of May, 2015

Present:- Smt.S.RAJANI,

Principal Senior Civil Judge, Nellore

Original Suit No. 195/2013

Bodepudi Nagaiah ....Plaintiff

Vs.

Paladugu Ramanaiah ... Defendant.

This suit coming on 23-4-2015 before me for final hearing in the presence of Sri T.Ramakrishna Prasad, advocate for the Plaintiff and of

Sri G.Syamacharyulu, advocate for the defendant, upon hearing both sides and having stood over for consideration til this day, this court delivered the following:-

JUDGMENT

This suit is filed for recovery of amount due under promissory note.

2.(i)Brief facts of the case of the plaintiff are that the defendant herein borrowed a sum of Rs.50,000/- from the plaintiff on 1-8-2007 for his personal necessities and executed a promissory note in favour of plaintiff, agreeing to repay the same with interest @ 24% p.a., either to the plaintiff or to his order on demand. After repeated demands made by the plaintiff, the defendant paid a sum of Rs.500/- to the plaintiff towards part payment and made an endorsement to that effect on the back side of the promissory note on 28-7-2010 with his own hand writing promissing to repay the balance amount within a short period.

(ii)Thereafter inspite of repeated demands and issuance of legal notice dated 4-1-2013, the defendant did not make any payment, but 2 O.S 195/2013 dt. 2-5-2015 issued a reply on 7-1-2013 with a request to send xerox copy of the pronote. Accordingly, the plaintiff sent the same to the counsel for defendant. Thereafter the defendant sent another reply notice after changing the counsel with false allegations. Hence the suit is filed for recovery of amount due under the suit promissory note.

3.The defendant filed his written statement, denying the suit debt transaction, execution of suit promissory note and execution of part payment endorsement. He contended that there are monetary dealings in between them for the last 20 years. The plaintiff used to obtain promissory notes from him and some times, the plaintiff used to obtain blank promissory note. The defendant was retired from service about 12 years back and is in financial crisis. He paid the principal amount due under the suit promissory note in the year 2009 , but due to confidence, he did not demand the plaintiff to return the promissory note. Now, with an intention to recover the interest amount, the plaintiff created part payment endorsement

dated 28-7-2010 by forging the signature of the defendant to save limitation

and filed this suit. The signature of the part payment endorsement is not that of the defendant. The defendant is an agriculturist and is depending upon agriculture income. Hence, interest is liable to be scaled down and the suit is barred by limitation. Hence suit is liable to be dismissed.

4. Basing on the above pleadings, the following issues are settled for trial of the suit:-

1.Whether the suit promissory note is true, valid and duly executed by the defendant?

2.Whether the part payment endorsement

dated 28-7-2010 is forged and fabricated

one?

3 O.S 195/2013 dt. 2-5-2015

3.Whether the defendant paid the principal amount due under said promissory note in the year 2009 as pleaded by him in written statement?

4. Whether the suit is barred by limitation?

5.Whether the defendant is an agriculturist and is entitled to the benefits of Debt Relief Laws?

6.Whether the plaintiff is entitled decree against defendant for recovery of entire suit amount?

7.To what relief, plaintiff is entitled?

5.During the course of trial, on behalf of the plaintiff,

Pws.1 and 2 were examined and Exs.A-1 to A-6 were marked. On behalf of the defendant, the defendant himself was examined as Dw.1 and

Exs.B-1 and B-2 were marked.

6.Heard the arguments advanced by the counsel for the plaintiff who are filed written arguments. The defendant has not advanced any arguments and the same was treated as heard.

7.ISSUE Nos 1 to 4 and 6-

In view of the pleadings and nature of evidence is adduced bdy both sides and in order to avoid repetition, for the sake of convenience, I am discussing all the issues together hereunder as the discussion in all the issues are inter-related.

8.As seen from the record, according to plaintiff, the defendant borrowed a sum of Rs.50,000/- from the plaintiff on 1-8-2007 by executing

Ex.A-1 promissory note. Thereafter he paid only Rs.500/- on 28-7-2010 by executing Ex.A-2 by executing Ex.A-2 part payment endorsement on the back side of Ex.A-2 promissory note in his own hand writing.

Subsequently, he did not any amount inspite of issuance of legal notice 4 O.S 195/2013 dt. 2-5-2015 under Ex.A-3.

9.As seen from the written statement that the defendant initially denied all the plaint averments including the suit debt transaction and execution of suit promissory note by the defendant in favour of plaintiff and also part payment endorsement. But his subsequent contention that he discharged the principal amount due under the suit promissory note and he did not make Ex.A-2 part payment endorsement goes to show that the defendant is impliedly admitting the execution of Ex.A-1 promissory note.

10.More over in his cross-examination, the defendant admitted that in the year 2007, he borrowed a sum of Rs.50,000/- from the plaintiff.

Hence it goes to show that the defendant is admitting the suit debt transaction. However, in order to prove the suit claim, the plaintiff got himself examined as Pw.1 and he got examined the 2nd attestor of Ex.A-1 as Pw.2 and got marked Exs.A-1 to A-6.

11.Ex.A-1 is the original suit promissory note dated 1-8-2007 executed by the defendant in favour of the plaintiff for Rs.50,000/-. Ex.A-2 is the part payment endorsement dated 28-7-2010made by the defendant for Rs.500/- on the back side of Ex.A-1 suit promissory note. Ex.A-3 is the

Office copy of legal notice dated 4-1-2013 got issued by the plaintiff to the defendant. Ex.A-4 is the Reply notice dated 7-1-2013 got issued by the defendant requesting the plaintiff to send copy of suit promissory note.

Ex.A-5 is the Office copy of legal notice dated 17-1-2013 issued at the time of sending xerox zopy of the promissory note and part payment endorsement and Ex.A-6 is the Reply notice dated 2-2-2013 got issued by the defendant for Ex.A-5 legal notice.

5 O.S 195/2013 dt. 2-5-2015

12.Coming to the oral evidence of Pw.1, his chief-examination affidavit is nothing but repetition of all the plaint averments which were already stated earlier. During cross-examination, Pw.1 admitted that the defendant used to to borrow amount from him now and then as hand loan and used to repay the same. A suggestion was put to Pw.1 that the defendant discharged the entire amount due under Ex.A-1 promissory note during the year 2009 itself, but he did not take back the suit promissory note in view of close acquaintance. Pw.1 denied this suggestion. This also goes to show that the defendant is admitting the execution of suit promissory note and debt transaction.

13.Coming to Ex.A-2 part payment endorsement, according to

Pw.1, the defendant paid Rs.500/- on 28-7-2010 and made payment on the back side of Ex.A-1 in his own hand writing. As seen from Ex.A-2, there are two attestors to the said endorsement.

14. Dw.1 during cross-examination deposed that the 1stattestor

Govindaiah is known to him for the last 20 years and the 2nd attestor

Vengaiah is doing rice business and he is his friend for the last 20 years.

On the date of Ex.A-2, the defendant himself came to his house and made

Ex.A-2 endorsement. On that day, the 2nd attestor Vengaiah came to his house to his personal work as he used to pay his premium for his LIC policy though him at Chennai and after his arrival, he secured the presence of Govindaiah, the 1st attestor.

15.A suggestion was put to him that Ex.A-2 part payment endorsement is fabricated only to save limitation and the suit promissory note is barred by limitation. Pw.1 denied the said suggestion. Except that nothing was elicited from Pw.1 to discredit his testimony so far as Ex.A-2 is 6 O.S 195/2013 dt. 2-5-2015 concerned.

16.Coming to the evidence of Pw.2 the 2nd attestor of Ex.A-1 suit promissory note and who is the 1st attestor of Ex.A-2 part payment endorsement, his evidence/affidavit runs in the same lines as that of the evidence of Pw.1 regarding execution of Exs.A-1 and A-2. He stated that as per the recitals of Ex.A-1, it was written that the executant himself scribed the promissory note in his own hand-writing and there is no such similar mention in Ex.A-2 endorsement that it was scribed by the defendant.

17. As seen from Ex.A-1, there is a specific mention about the name of the scribe in the pronote form and Ex.A-2 endorsement is made about part payment only. Hence, simply because there is no mention in

Ex.A-2 as to who scribed the said endorsement that does not mean that

Ex.A-2 was not written by the defendant.

18.Thus, the evidence of Pws.1 and 2 goes to show that the suit promissory note is true, valid and it was duly executed by the defendant and Ex.A-2 part payment endorsement also was made by the defendant.

19.The defendant got himself examined as Dw.1 to substantiate his contention and got marked Exs.B-1 and B-2 during further cross- examination of Pw.1 after recalling him.

20.Ex.B1 is the promissory note dated 5-11-1998 executed by the plaintiff and defendant jointly herein in favour of one Gottipati Mythili for a sum of Rs.25,000/-. Ex.B-2 is another promissory note dated 5-11-1998 executed by the plaintiff and defendant jointly herein in favour of one

Gottipati Prathima for Rs.50,000/-.

7 O.S 195/2013 dt. 2-5-2015

21.When Exs.B-1 and B-2 are confronted to Pw.1 during further cross-examination by the counsel for defendant, Pw.1 admitted about execution of Exs.B-1 and B-2 jointly by him and the defendant in favour of one Gottipati Mythili and Gottipati Pratima, but nothing was brought on record as to how Exs.B-1 and B-2 are relevant to the suit transaction or to substantiate to the case of the defendant.

22.Dw.1 in his evidence/affidavit stated that he never executed A-2 part payment endorsement and the writing of signature on Ex.A-2 are not belonged to him. During cross-examination, when signature in Ex.A-1 was confronted to him, he stated that he cannot identify the same. When the signature in the written statement was confronted to him, he stated that he cannot say whether the signature on the written statement is that of him or not. When the vakalath filed by him was confronted to him, he stated that he cannot identify his signature as there is different in the signature on the vakalath. When the postal acknowledgement was confronted to him, he denied the signature on it.

23.During cross-examination, he denied the suggestion that Ex.A-2 part payment endorsement is in his own hand writing and the signature thereon also belongs to him. But when he himself denied his own admitted signatures in vakalath, written statement and is not in a position to identify his signatures. His contention that his signature on Ex.A-2 does not belongs to him cannot be accepted.

24.More over when the plaintiff is able to establish not only through his evidence and also through the evidence of Pw.2 that Ex.A-2 part payment endorsement was made by the defendant at the time of payment of Rs.500/- towards part payment , the burden is on the defendant to show 8 O.S 195/2013 dt. 2-5-2015 that the said writing and signature is not belonged to him, but the defendant has not taken any steps to send Ex.A-2 to the Hand writing Expert for the purpose of comparison and opinion regarding hand-writing and signature thereon.

25.On one hand, the defendant is denying the suit debt transaction, execution of suit promissory note and part payment endorsement, but on the other hand, he contends that he discharged the

principal amount due under the suit promissory note in the year 2009, but

he did not take back the suit promissory note that implies that he is admitting the suit debt transaction and execution of suit promissory note.

During cross-examination of Pw.1, he put a suggestion to Pw.1 that the defendant paid entire amount due under the suit promissory note. Thus, the defendant has taken inconsistent pleas at different stages.

26.Thus, after careful scrutiny of oral and documentary evidence and the written arguments of the counsel for the plaintiff , I have no hesitation to hold that the plea of discharge taken by the defendant is not established and the evidence adduced by the defendant is not cogent and convincing to believe the plea of discharge.

27.The learned counsel for the plaintiff relied upon the following decisions reported in the case ofK.BajariReddy //vs.//

S.SreenivaaReddy (2011 (4) ALD 799) – Wherein it was held that :

9. The question as to whether an individual puts his signature in a

particular manner, cannot be decided solely on the basis of the signatures

put by that very individual at various places and on different occasions.

Given an intention to retract from a document, an individual can choose to

put the signature in a manner different from which he puts in the usual

course. The difference can be as to the pattern, or in some cases, the language itself. As long as the person is capable of writing in different

versions, the mere fact that there is a difference between various signatures

of that very individual cannot, by itself, be a factor to doubt the execution

of a document”.

9 O.S 195/2013 dt. 2-5-2015

10. Take for instance, the case where an individual knows to write or sign in English as well as Telugu. If, with a deliberate intention he puts his

signature in one language, though in the usual course of business, he puts

the signature in a different language, he cannot wriggle out himself from

the obligation even by proof of the difference of signature. In such cases,

the only way through which the signatory of a document can prove his

contention is by taking steps under Section 45 of the Evidence Act. An

expert of handwriting would be in a position to give his opinion on the

genuinity or otherwise of the signature based upon the nature, pattern and

slant of writing of the person concerned”.

28.He also relied another decision reported in the case of Vanga

Surya Rao and others //vs.// Guttula Gopalakrishna (1999(6) ALD 611

– wherein in para 15 while the Hon'b'e High Court of A.P discussing the scope of rebuttal presumption U/Sec. 118 of Negotiable Instruments Act as follows::

“ The said provision contemplates a rebuttable presumption. Two types of

cases may arise – one where there is a denial as to the execution and

pleading forgery and two while admitting the instrument explain the

circumstances. Therefore, subject to proving otherwise the presumptions

follow in both the matters with variation. Normally, one comes across with

both the plea of total denial and then with some explanation by way of

defence, which run totally contradictory. Though a defendant is entitled to

raise contradictory pleadings in defence, however, the same vary from case

to case . Especially, in the case of negotiable instruments such pleas have

to strictly scrutinised in a proper perspectively within the limitations

prescribed under the law and should not allow the defendant to go scot free

with unsustained pleas. Therefore, to restrict the enquiry, the law

contemplates such presumption and once the instrument is proved all

presumptions follow. Shifting the burden apart, it certainly casts doubts on

the bonafides respect of pleas like denying the very note on the plea of

forgery and then coming out with some explanation. In such cases, if due

execution of the instrument once proved, the presumption operates with

more vigour and it should shut out the explanation sought to be given”.

29.In the instant case, burden is on the defendant to establish his plea of discharge, but he failed to prove the same by adducing evidence.

Thus, after careful scrutiny of oral and documentary evidence and the written Arguments field by the counsel for the plaintiff, I am of the opinion that the evidence adduced by the plaintiff more probable and believable than the evidence adduced by the defendant and the defendant, having 10 O.S 195/2013 dt. 2-5-2015 taken plea of discharge, could not establish the same by adducing cogent and convincing evidence and failed to prove that Ex.A-2 is a forged and fabricated one.

30.On the other hand, the oral and documentary evidence adduced by the plaintiff would clearly establish that Ex.A-2 was duly made by the defendant himself. Hence the contention of defendant that Ex.A-2 is forged and fabricated one and the suit is barred by limitation cannot be accepted.

On the other hand, it can be safely held that the suit promisory note is true, valid and was duly executed by the defendant and the part payment endorsement dated 28-7-2010 is not a forged and fabricated one and the same was duly made by the defendant. Hence, the plaintiff is entitled to recover entire suit amount due under the suit promissory note .

Hence, Issues Nos.1 to 4 and 6 are answered accordingly in

favour of the plaintiff and against the defendant.

31.ISSUE NO.5:

Though the defendant has taken a plea that he is an agriculturist and is entitled to the benefits of Debt Relief Laws, but he did not adduce any evidence to prove the same and did not place any evidence before the court as to how much land is owning and what is his primary source of livelihood. On the other hand, his own admission goes to show that he is a retired employee and is a pensioner. Hence his contention that he is entitled for benefit of Debt Relief Laws cannot be accepted.

Hence , Issue No.5 is answered accordingly.

32.ISSUE NO.7: In view of my findings on Issue Nos.1 to 7, the plaintiff is entitled for a decree against the defendant for recovery of entire suit amount of Rs. 1,16,354/- with subsequent interest at the rate of 11 O.S 195/2013 dt. 2-5-2015 12% p.a. from the date of suit till the date of decree and thereafter at the rate of 6% p.a till the date of realization on the principal amount of

Rs.49,500/-.

33.In the result, suit is decreed with costs against the defendant for a sum of Rs. 1,16,354/- with subsequent interest at the rate of 12% p.a. from the date of suit till the date of decree and thereafter at the rate of 6% p.a till the date of realization on the principal amount of

Rs.49,500/-.

Dictated to Stenographer, transcribed and typed by her,

corrected and pronounced by me in Open Court, this the 2nd day of May,2015.

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

for plaintiff:-

PW.1: Bodeputi Nagaiah

PW.2: Kushi Govindaiah.

For defendant:

DW.1: Paladugu Ramanaiah.

DOCUMENTS MARKED

for plaintiff:-

Ex.A-1: Original suit promissory note dated 1-8-2007 executed by the defendant in favour of the plaintiff for Rs.50,000/-.

Ex.A-2:Part payment endorsement dated 28-7-2010made by the defendant for Rs.500/- on the back side of Ex.A-1 suit promissory note.

Ex.A-3: Office copy of legal notice dated 4-1-2013 got issued by the plaintiff to the defendant.

Ex.A-4:Reply notice dated d7-1-2013 got issued by the defendant 12 O.S 195/2013 dt. 2-5-2015 requesting the plaintiff to send copy of suit promissory note.

Ex.A-5: Office copy of legal notice dated 17-1-2013

Ex.A-6 Reply notice dated 2-2-2013 got issued by the defendant for Ex.A-5 legal notice. For Defendant:

Ex.B-1:Promissory note dated 5-11-1998 executed by the plaintiff and defendant jointly herein in favour of one Gottipati Mythili for a sum of Rs.25,000/-.

Ex.B-2: Another promissory note dated 5-11-1998 executed by the plaintiff and defendant jointly herein in favour of one Gottipati Prathima for Rs.50,000/-.

Principal Senior Civil Judge,

Nellore.

1 I.P.No.57 of 2010 dt. 2-5-2015

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NELLORE

Dated this 2nd day of May, 2015

Present:- Smt.S.RAJANI,

Principal Senior Civil Judge, Nellore

Insolvency Petition No. 57/2010

Muppasani Venkataramana Suresh Babu

...Petitioner.

Vs.

1. Amara Radhaiah

2. Amara Leelabai ... Respondents.

This petition coming on 29-4-2015 before me for final hearing in the presence of Sri B.Balendra Singh, Advocate for the petitioner and of

Sri M. Ramesh Babu, Advocate for the 2nd respondent and 1st respondent having remained exparte, upon hearing both sides and having stood over for consideration till this day, this court delivered the following:-

O R D E R

This petition is filed U/Secs. 6, 9 and 12 of Provincial Insolvency

Act to adjudicate the 1st respondent as insolvent and to set aside the Settlement deed dated 28-7-2010 executed by the 1st respondent in favour of 2nd respondent conveying the I.P schedule property and to direct the petition “A” schedule property be vested with Official Receiver for due administration for the benefit of creditor.

2.(i)The brief facts of the case of the petitioner’s case are that the 1st respondent borrowed a sum of Rs.2,00,000/- from the petitioner for his necessities on 24-10-2007 and executed a promissory note in favour of petitioner, agreeing to repay the same with interest at 24% p.a., either to the petitioner or to his order on demand. Later on 24-10-2008 the 1st respondent made payment of

Rs.48,000/- towards the debt due under the promissory note and made payment 2 I.P.No.57 of 2010 dt. 2-5-2015 endorsement to that effect on the back side of the promissory note. Thereafter inspite of repeated demands made by the petitioner, the 1strespondent failed to pay the balance amount. The petitioner got issued legal notice to the respondents on 20-10-2010. The 1st respondent managed to return the said notice and the 2nd respondent refused to receive the same.

(ii)It is further averred that the 1st respondent is the absolute owner of

I.P - 'A' schedule property property. The 1st respondent executed a nominal

Benamee Registered settlement deed dated 28-7-2010 in favour of 2nd respondent disposing of his entire estate with an intention to defraud his creditors including the petitioner. Thereby, preventing the petitioner from realizing his legally enforceable debt.

(iii)The said transfer is a fraudulent one with a sole intention to defeat and defraud the creditors including the petitioner and thereby depriving the petitioner his legitimate right to recover the debt due to him from the 1st respondent. The 1st respondent has no other properties to discharge his debt.

Therefore the said transfer is a fraudulent transfer and voidable at the option of the creditor U/Sec. 53 of Transfer of Property Act.

(iv)Thus, the respondent No.1 committed an Act of insolvency by transferring his entire estate in favour of 2nd respondent with an intention to defeat his creditor. Hence the petition is filed.

3.(i)The 1st respondent remained exparte, and the 2nd respondent filed her Counter, denying all the petition averments and contended that at the time of her marriage, her father i.e., 1st respondent gave the petition schedule property to her towards Pasupu-Kumkuma under Oral Conveyance in the presence of elders, relatives and other family members. Thus in compliance of the said oral gift, the 1st respondent got registered the Settlement deed in her favour out of love and affection. There is no collusion between them. The 1st respondent has got some other properties. If at all the 1st respondent really due amount to the petitioner, the 3 I.P.No.57 of 2010 dt. 2-5-2015 same can be recovered by filing a suit based on a false document.

(ii)She being the daughter of 1st respondent is well aware that the 1st respondent did not borrow any amount from the petitioner. Only to grab the petition schedule property, the present petition is filed to harass the respondent. Since the 1st respondent has got some other properties of his own, he cannot be declared as insolvent and the petition is not maintainable. She has not refused to receive any legal notice. Only to grab the property, the petition is filed. Hence the petition is liable to be dismissed.

4.During the course of enquiry, on behalf of the petitioner, Pws.1 and 2 were examined and got marked Exs.A-1 to A-6. On behalf of the respondents, the 2nd respondent got herself was examined as Rw.1 and got marked Exs.B-1 and B-2.

5.Heard the arguments advanced by both sides.

6.Now the point for consideration are :- “Whether the petitioner is entitled for adjudication of 1 st respondent as insolvent?” 7.POINT :

To prove their rival contentions, the petitioner got himself examined Pw.1 and he got examined one of the attestors of promissory note as Pw.2 and got marked Exs.A-1 to A-6.

8.Ex.A-1 is the Promissory note dated 24-10-2007 executed by the 1st respondent in favour of the petitioner for Rs.2,00,000/-. Ex.A-2 is the Payment endorsement dated 24-10-2008 for Rs.48,000/- made by the 1strespondent on the back side of Ex.A-1. Ex.A-3 is the Certified copy of Registered Settlement deed

dated 28-7-2010 executed by 1st respondent in favour of 2nd respondent. Ex.A-4 is

the Office copy of legal notice got issued by the petitioner to both the respondents.

Ex.A-5 is the Returned Unserved postal cover sent to the R-I returned with an endorsement as “No such address in this address” and Ex.A-6 is the Returned 4 I.P.No.57 of 2010 dt. 2-5-2015 unserved postal cover sent R-2 returned as “Refused”.

9.Coming to the oral evidence of Pw.1, his chief-examination affidavit is nothing but repetition of all petition averments. In brief, his evidence goes to show that the 1st respondent borrowed Rs.2,00,000/- from him for his necessities on 24- 10-2007 and executed a demand promissory note i.e., Ex.A-1. Later he made part payment by paying a sum of Rs.48,000/- on 24-10-2008. thereafter, he did not pay any amount, on that Pw.1 got issued legal notice to the 1st respondent on 20-10-2010. The 1st respondent returned to manage the same and the 2nd respondent refused to receive the notice.

10.The 1st respondent executed a sham and nominal Binamee deed i.e.,

Ex.A-3 in favour of 2nd respondent with an intention to defraud the creditors including the petitioner with a view to prevent him for recovery of debt due by 1st respondent to him, as the transfer is a fraudulent one and is voidable at the option of him U/Sec. 53 of T.P.Act. The 1st respondent committed an act of insolvency, as such, he field the present I.P to adjudicate the 1st respondent as insolvent and to set aside the Settlement deed and to vest the said property with the Official Receiver for due administration.

11.As already stated earlier, the contention of 2nd respondent as per her counter as well as chief-examination affidavit is that her father i.e., 1st respondent gave the I.P schedule property to her towards her Pasupu-Kumkuma at the time of her marriage. Thereafter he executed original of Ex.A-3 Settlement deed in her favour towards Pasupu-kumkuma and the said transfer is not a fraudulent one and cannot be set aside.

12. She also contends that her father i.e., 1st respondent has got several immovable properties and hence he cannot be declared as insolvent. But surprisingly, the 1st respondent did not choose to contest the matter and remained exparte, Knowing fully well about these proceedings as the 2nd respondent is no other than his daughter and is contesting the proceedings.

5 I.P.No.57 of 2010 dt. 2-5-2015

13.During cross-examination, several suggestions were put to Pw.1 that the 1st respondent has got a house bearing D.No.5-549-A at Usmansahebpet,

Nellore worth Rs.1 crore, he has got Ac.6-92 cents of land in patta No.41,

S.No.253 of Kaluvoy mandal of Dachuri panchayat of Podalakur Sub-registration,

Nellore and he is financially sound and is having several immovable properties of his name, but the petitioner filed this I.P against 45 ankanams of property that was settled in favour of 2nd respondent intentionally in order to extract money from her.

Pw.1 deposed that he does not know about the other properties owned by 1strespondent and denied the suggestion that he filed I.P intentionally only to trouble the respondents. But no document is confronted to Pw.1 regarding other properties allegedly owned by the 1st respondent.

14.Pw.1 deposed that he does not know whether the 2nd respondent contacted inter-caste marriage at Tirumala Tirupathi Devasthanam. Nothing was elicited from Pw.1 to discredit his testimony, except putting suggestions to Pw.1 that though the 1st respondent discharged the debt due to him and there is a dispute with regard to payment of interest, as such, to trouble them, he filed this petition.

15.This goes to show that the respondents are not disputing the debt transaction with the petitioner, but contending that the 1st respondent discharged the debt due under Ex.A-1 promissory note. Where as in the counter of 2nd respondent, she stated that to her knowledge, her father has not borrowed any amount from the petitioner which is quite contrary to the above suggestion put to

Pw.1. Nothing was elicited from Pw.1 to show the alleged discharge of suit debt transaction and other properties owned by the 1st respondent.

16.The evidence of Pw.2 goes to show that in his presence, the 1st respondent borrowed a sum of Rs.2 lakhs from the petitioner on 24-10-2007 by executing Ex.A-1 promissory note and made part payment endorsement subsequently on 24-10-2008 in his own hand writing. For which, he signed as an 6 I.P.No.57 of 2010 dt. 2-5-2015 attestor in Exs.A-1 and A-2, but the debt transaction is not in dispute . But a suggestion was put to Pw.2 that the contents in chief-examination affidavit are false, since Pw.1 is his friend and at his instance, he is deposing false evidence.

Pw.2 denied the said suggestion. When the debt transaction is not in dispute, the evidence of Pw.2 can be taken into consideration.

17.Coming to the evidence of Rw.1, as already stated earlier, Rw.1's chief-examination affidavit is nothing but repetition of contentions raised by her in her counter. She says that at the time of her marriage, her father i.e., the 1st respondent gave petition schedule property to her towards Pasupu-Kumkuma under oral conveyance in the presence of elders, relatives and other family members and thereafter in compliance of the said oral gift, the 1st respondent executed Ex.A-3 Settlement deed out of love and affection in favour of 2nd respondent and there is no collusion between them and only to grab the property, the petitioner filed the present application.

18. She got marked the said Original document i.e.,Ex.B-1 Registered sale deed and Certified copy of the same was already marked as Ex.A-3. She got marked Ex.B-2 her marriage certificate issued by Executive Officer, Tirumala

Tirupathi Devasthanam, Tirupati.

19.The petitioner is not disputing her marriage shown in Ex.B-2 at

Tirumala Tirupathi Devasthanam, Tirupati. When she says that her father has got some other properties and cannot be declared as insolvent, but she did not file any documents to substantiate the said contention regarding the other properties of his father. When she is opposing the petition and contending that her father has got some other properties and gave details of those properties by way of suggestions to Pw.1, she ought to have obtained Certified copies of those documents and ought to have produced the same before the court to resist the claim But she did not do so for the reasons best known to her and withheld the best evidence available with her. Hence her contention that her father has got some other 7 I.P.No.57 of 2010 dt. 2-5-2015 immovable properties which would be sufficient to satisfy the debt due to the petitioner, cannot be accepted in the absence of any documentary evidence.

20.Though she contended in her counter as well as in her chief- examination affidavit that her father under oral conveyance in the presence of elders, relatives and other family members at the time of her marriage, conveyed the petition schedule property to her, but during the cross-examination, she admitted that her marriage is inter-caste marriage and took place at Tirumala

Tirupathi Devasthanam, Tirupati on 8-2-2009 and her parents and relatives did not attend her marriage and did not sign in the relevant register.

21. She also admitted that one T.Hari Singh Banu Bai signed in the original of Ex.B-2 and he is the relative of her husband. She also admitted that she married against the wish and Will of her parents and hence her parents and relatives did not attend her marriage. This falsifies the contention of 2nd respondent that at the time of her marriage, her father under oral conveyance gave the petition schedule property to her. When her father i.e., the 1st repsondent did not attend her marriage which was performed against his wish and Will, hence the question of conveying the petition schedule property orally to her at the time of her marriage does not arise. Hence, her contention is proved as not correct.

22.She deposed that there are cardial terms in between her and her father till the date of her marriage. As such her contention that out of love and affection, her father executed Settlement deed settling the petition schedule property to her cannot be believable, when there are no cardial terms in between them prior to her marriage.

23. She deposed that she does not know whether the 1st respondent borrowed a sum of Rs.2,00,000/- from the petitioner on 24-10-2007 and executed a promissory note in his favour and does not know whether the petitioner obtained a decree against her father in O.S.No.869/2011 on the file of this court. But in her counter, she stated that to her knowledge, her father did not borrow any amount 8 I.P.No.57 of 2010 dt. 2-5-2015 from the petitioner, but where as a suggestion was put to Pw.1 that her father discharged the amount due to the petitioner and there is a dispute with regard to payment of interest, the petitioner filed this I.P. Now, she says during cross- examination that she does not know about the debt transaction that her father borrowed a sum of Rs.2 lakhs from the petitioner on 24-10-2007. She is changing her versions from time to time and her evidence is not consistent on this aspect.

24.She deposed that she does not know whether her father filed

I.P.No.19/2011 on the file of this court to declare him as insolvent and the same is pending and her Advocate is appearing as an Advocate for her father in that I.P.

25.At this juncture, it is relevant to state that the 1st respondent herein filed I.P.No.19/2011 against some of the creditors on the file of this court to declare him as an insolvent. It it brought to the notice of the court while advancing arguments that the said I.P.No.19/2011 was dismissed on merits and the same

Advocate appearing for 2nd respondent herein, appeared for 1st respondent herein in that I.P filed by the 1st respondent herein. Hence the 1st respondent has got full knowledge about the present I.P., but the 1st respondent remained exparte.

26.When the 2nd respondent admits that her father did not attend her marriage as she married against his wish and will and her marriage is inter-caste marriage, hence her contention that at the time of her marriage towards Pasupu- kumkuma, her father conveyed the petition schedule property to her and in compliance of the same, later he executed Settlement deed, cannot be believable in the absence of any other evidence.

27.On the other hand, the evidence of Pw.1 goes to show that with an intention to evade payment to the creditors, the 1st respondent made a fraudulent transfer of I.P schedule property in favour of 2nd respondent by executing Ex.B-1

Settlement deed in favour of Rw.1 can be believable, but no other evidence is brought on record to show that the 1st respondent is having some other properties apart from the I.P schedule property. Hence, it can be safely held that the 1st 9 I.P.No.57 of 2010 dt. 2-5-2015 respondent committed an act of insolvency without discharging the debt due to the petitioner, as such he is to be declared as insolvent.

28.At this stage, this court cannot give any finding regarding setting aside the settlement deed dated 28-7-2010 and appropriate orders are to be passed in the application to be filed by the Official Receiver in the separate proceedings for due administration of I.P schedule property for the benefit of creditor in accordance with the provisions of Provincial Insolvency Act.

Hence Point is answered accordingly.

29.IN THE RESULT, the petition is In the result, the petition is allowed by adjudicating the first respondent as an insolvent and the same is to be notified in the Gazette.. The 1st respondent is granted six months time for discharge. The petition schedule property shown in the 'A' schedule is to be vested with Official Receiver for possession and for due administration and to take steps for cancellation of registered Settlement deed dated 28-7-2010 executed by the 1st respondent in favour of 2nd respondent as per the provisions of the provincial insolvency Act.

Dictated to Stenographer, transcribed and typed by her, corrected and

pronounced by me in Open Court, this the 2nd day of May, 2015.

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: M.Venkata Ramana Suresh Babu.

Pw.2: P.V.Subba Rao.

For Respondents:

Rw.1: Amara Leela Bai.

10 I.P.No.57 of 2010 dt. 2-5-2015

DOCUMENTS MARKED

For petitioner:

Ex.A-1: Promissory note dated 24-10-2007 executed by the 1st respondent in favour of the petitioner for Rs.2,00,000/-.

Ex.A-2: Payment endorsement dated 24-10-2008 for Rs.48,000/- made by the 1st respondent on the back side of Ex.A-1.

Ex.A-3: Certified copy of Registered Settlement deed dated 28-7-2010 executed by 1st respondent in favour of 2nd respondent.

Ex.A-4: Office copy of legal notice got issued by the petitioner to both the respondents.

Ex.A-5: Returned Unserved postal cover sent to the R-I returned with an endorsement as “No such address in this address”.

Ex.A-6: Returned unserved postal cover sent R-2 returned as “Refused”.

For respondents:

Ex.B-1:Original Registered Settlement deed dated 28-7-2010 executed by 1st respondent in favour of 2nd respondent.

Ex.B-2: Marriage certified issued by the Executive Officer, Tirumala Tirupathi Devasthanam, Tirupati.

PSCJ,Nlr..

1 S.C.No. 105/2014 dt. 4-5-2015

IN THE COURT OF THE PRINCIPAL ASST. SESSIONS JUDGE:

NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Dated this the 4th day of May, 2015.

Present: Smt S.RAJANI,

Principal Assistant Sessions Judge, Nellore

SESSIONS CASE No. 105/2014

(P.R.C.No.51/2013 of IV Additional Judicial Magistrate of First Class court, Nellore, connected to Crime No.179/2013 of Nellore Rural police station)

Name of the STATE: SUB-INSPECTOR OF POLICE, Complainant:Nellore Rural Circle.

Name of the Alakunta Raja, S/o Masthanaiah, aged 22 Accused:years, Vaddera by caste, Kasumuru Vaddipalem Village, Venkatachalam mandal.

Nature of Offence:Cheating U/Sec. 417 of IPC; Kidnapping or abducting a woman to compel her marriage or to cause her defilement, etc., U/Sec. 366 of IPC; and Rape U/Sec. 376 of IPC.

Plea of the Accused:Pleaded not guilty.

Finding of the Judge: Proved not guilty.

Sentence of Order:n te In the result, Accused is FOUND NOT GUILTY for the charges under Sections 417, 366 and 376 of IPC and hence he is acquitted of the same under Section 232

Cr.P.C. The bail bonds of the accused shall be in force for a period of six months in terms of section 437-A CrPC.

M.Os.1 to 5 i.e., Dark colour green punjabi dress, Maroon colour punjabi dress, light pink colour chunni, Blue colour

Jeans pant and Red and white colour full hands shirt respectively shall be destroyed after expiry of appeal time. Prosecution Sri. C. SRINIVASA MURTHY, conducted by:Additional Public Prosecutor

Principal Assistant Sessions Judge’s Court

NELLORE

2 S.C.No. 105/2014 dt. 4-5-2015

Name of the Defence Sri D.Dhamareswar – Advocate, Nellore. Counsel:

JUDGMENT

1.Accused is tried for the charges U/Secs.417, 366 and 376 of IPC on the allegations that with an intention to cheat and to have sexual intercourse with Pw.1, he kidnapped her from her lawful guardian and took her to Sundaraiah colony and committed rape against her forcibly and refused to marry her thereafter.

2. (i)The brief facts of the prosecution case are that on 15-4-2013 , the accused in pursuance of his intention to cheat

Pw.1 and to have sexual intercourse with her, took her to Sundaraiah colony at about 9-00 a.m., on his motor cycle. After he developed acquaintance with her who was a minor by then, and used to make false promise of marriage. When Pw.1 went to the shop of Pw.5, he took her on his motor cycle to Narasimhakonda and both of them were at

Narasimhakonda till 4-00 p.m., on that day. Later, he took her to the house of his friend Annapareddy Chinnaiah(Lw.10) situated at

Sundaraiah colony and stayed in his house on that day and committed rape forcibly on Pw.1 without her consent. Accused kept Pw.1 in that house till 3-00 p.m., on 16-4-2013. Later, he took her to the house of

Pw.1 on his motor cycle and left her there at about 4-00 p.m., and went away. By that time, Pw.3, father of Pw.1 was present. She informed the incident to her parents, who requested the accused to marry Pw.1, but accused refused to marry her and thereby cheated her. Thereafter Pws.1 to 3 went to the Rural police station, Nellore on 1-5-2013 and presented 3 S.C.No. 105/2014 dt. 4-5-2015 a report.

(ii) Basing on the report of Pw.1, Pw.9registered a case in

Cr.No.179/2013 U/Secs.417, 366 and 376 of IPC. Pw.11 commenced investigation and visited the scene of offence No.1 situated at Korivivari

Kandrika village in the presence of Pw.10 and Lws.12 Gunji Seenaih, seized the clothes of Pw.1 which were worn by her at the time of offence under cover of Mahazar. Later, he visited the scene of offence No.2 which is the house of Lw.10/Annapareddyd Chinnaiah who was residing as tenant situated at Sundaraiah colony, he examined the witnesses. On 3-5-2013 on information, he along with his staff and mediators proceeded to Kasumuru village to the house fo accused and arrested him at about 5-00 p.m., and seized clothes which were produced by the accused under cover of Mediators Report. Later he produced the accused before the court for judicial custody.

(iii)After completion of investigation and after receipt of Wound

Certificate of Pw.1 and Potency Certificate of accused, Pw.11 filed charge sheet against accused.

3.Considering the material on record, the learned IV

Additional Judicial Magistrate of First Class, Nellore took cognizance for

the offences U/Secs. 417, 366 and 376 of IPC in P.R.C.No.51/2013. On appearance of accused, copies of documents were furnished to him. As the offence under Sections 417, 366 and 376 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Nellore Division, Nellore.

4 S.C.No. 105/2014 dt. 4-5-2015

4.On receipt of the same, the Hon’ble Principal

District & Sessions Judge, Nellore was pleased to take the case on file under Sections 417, 366 and 376 of IPC as Sessions Case

No.105/2014 and made it over to this Court for disposal according to law.

5.On appearance of the accused, after hearing the learned Additional Public Prosecutor and the learned counsel for the accused, and considering the material on record, this Court framed charges under Sections 417, 366 and 376 of IPC against accused, read over and explained the same to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the prosecution, Pws.1 to 11 were examined and Ex.P-1 to Ex.P-23 and

M.Os.1 to 5 were marked.

7.After closure of prosecution evidence, accused was examined U/Sec.313 Cr.P.C. He denied the incriminating evidence appearing in the evidence of prosecution witnesses and reported no defence evidence.

8.Heard the arguments advanced by both sides.

9.Now the point for consideration is:

“Whether the prosecution established guilt of the

accused for the charges under Sections 417, 366 and 376 of IPC

beyond all reasonable doubt ?”

10.POINT:

In order to prove the charges levelled against the accused, the prosecution relied upon the evidence of Pws.1 to 11, 5 S.C.No. 105/2014 dt. 4-5-2015

Exs.P-1 to P-23 and M.Os.1 to 5. Pw.1 is the defacto-complainant;

Pws.2 and 3 are the parents of Pw.1, Pws.3 to 6 are the alleged eye witnesses while accused was taking Pw.1 on his motor cycle; Pws.7 and 8 are the witnesses who noticed the accused and Pw.1 at Sundaraiah colony in the house of Lw.10/Annapareddy Chinnaiah; Pw.9 is the Sub-

Inspector of police who registered the FIR and Pw.11 is the Investigating

Officer in this case. Pw.10 is the mediator, in whose presence, two scene observation reports were prepared and material objects were seized from Pw.1 as well as accused at the time of arrest of accused;

11.Ex.P-1 is the Signature of Pw.1 on the report. Exs.P-2 to P-9 are the Contradictory portions in Sec.161 Cr.P.C statements of Pws.1 to 8 respectively. Ex.P-10 is the Report of Pw.1 submitted to the police.

Ex.P-11 is the FIR in Cr.No.179/2013 of Nellore Rural Police station .

Exs.P-12 to P-14 are the signatures of Pw.10 in scene observation reports 1 and 2 and Mahazarnama. Ex.P-15 is the Scene observation report No.1 dated 2-5-2013.. Ex.P-16 is the Rough sketch of scene of offence No.1 Ex.P-17 is the Rough sketch of scene of offence No.2.

Ex.P-18 is the Scene observation Mahazar at the second scene of offence . Ex.P-19 is the Arrest Mahazarnama. Ex.P-20 is the Wound

Certificate P2.1 Ex.P-21 is the Final opinion given by Medical Officer basing on Forensic Science Laboratory report. Ex.P-22 is the Potency

Certificate of accused and Ex.P-23 is the Forensic Science laboratory report.

12. M.O.1 is the Dark colour green punjabi dress, M.O.2 is the

Maroon colour punjabi dress, M.O.3 is the light pink colour chunni, M.O.4 6 S.C.No. 105/2014 dt. 4-5-2015 is the Blue colour Jeans pant and M.O.5 is the Red and white colour full hands shirt .

13.According to prosecution, accused and Pws.1 to 3 are residents of Kasumuru Vaddipalem village. Pw.1 is minor by the date of incident and was aged about 17 years. Accused is her neighbour, with an intention to have sexual intercourse with her, he developed acquaintance with her, he took advantage that Pw.1 is a minor and used to talk with her with a proposal of love and made false promise of marriage.

14. While so, on 12-4-2013 Pw.1 went to the house of her elder sister Pw.2 at Korivivari kandrika village . On 15-4-2013 the accused with an intention to cheat her and to have sexual intercourse with Pw.1, went to Korivivari kandrika village, at about 9-00 a.m., on a motor cycle, by that time, Pw.1 was at the shop of Pw.5, he took Pw.1 on his motor cycle to to Narasimha konda initially and later he took her and went to

Sundaraiah colony, where he committed rape on her forcibly in the house of Lw.10/Annapareddy Chinnaiah and refused to marry her when she requested him to marry her.

15.But, Pw.1 who is the victim girl in her evidence deposed that she does not know the accused. About two years back, when her parents were intending to perform her marriage against her wish, then she left their house and went to her friend's house on the early hours.

On the next day morning, she returned to their house, then she came to know that her parents informed the matter to the police station as she was missing on that day. Later her parents took her to police station and 7 S.C.No. 105/2014 dt. 4-5-2015 informed the police that she returned to the housed. On that, police obtained her signature on some paper and she identified her signature in the report, but she stated that she does not the contents of the report and her signature alone was marked as Pw.1. She categorically stated that nobody has taken her anywhere from their house on that day and she voluntarily left her house and went away friends house and her parents were intending to perform her marriage against her wish. Now, she got married and residing with her husband.

16.Thus, this part of evidence of Pw.1 goes to show that she totally resiled from her earlier version and she did not whisper anything against the accused. On the other hand, she stated that she does not know the accused and she left their house and went to her friends house when her parents were intending to perform her marriage against her wish. As such, the learned Additional Public Prosecutor after taking permission from the court, cross-examined her and got marked her contradictory portion in Sec.161 Cr.P.C statement as Ex.P-2. But nothing was elicited from her to discredit her testimony, except a suggestion that in view of compromise with the accused, she is deposing false evidence.

17.The evidence of Pw.1 is no way helpful to the case of prosecution to prove the guilt of the accused for the charges levelled against him.

18.The evidence of Pws.2 to 8 is also not useful to the case of prosecution as all of them, did not support the case of the prosecution and resiled from their earlier versions and did not whisper anything against the accused. Their Contradictory portions in Sec.161 Cr.P.C 8 S.C.No. 105/2014 dt. 4-5-2015 stations were marked as Exs.P-3 to P-9 respectively during cross- examination by Additional Public Prosecutor.

19.Now the only evidence available to the prosecution is the evidence of Pws. 9 to 11. Pw.9 is the Sub-Inspector of police who registered the FIR, Pw.10 is the Mediator and Pw.11 is the Investigating

Officer in this case.

20.Pw.9 in his evidence deposed that on 1-5-2013 at 7-30 p.m., he received Ex.P-10 report from Pw.1, on that he registered a case in

Cr.No.179/2013 and submitted Ex.P-11 FIR to the court and on the instructions of Inspector of police, he referred Pw.1 to Government

Hospital, Nellore medical examination.

21.Pw.10 in his evidence deposed that he was not present at the time of arrest of accused and seizure of clothes in connection with this case. He identified his signatures in the mediators report which are marked as Exs.P-12 to P-14.

22.A suggestion was put to him during cross-examination by

Additional Public Prosecutor that he was present at the time of observing

the scenes of offence and seizure of clothes of Pw.1 and was also present at the time of arrest of accused and seizure of clothes from the accused, he denied the said suggestion. But his evidence also will not be helpful to the case of prosecution to prove the guilt of the accused.

23.Pw.11 is the Inspector of police, whose evidence goes to show that after registration of Ex.P-11 FIR, he commenced investigation and examined Pws.1 to 3 on that day. On the next day, he visited the scenes of offence, where he examined the witnesses and secured the 9 S.C.No. 105/2014 dt. 4-5-2015 presence of mediators Pw.10 and Lw.12/Gunji Seenaiah and seized

M.Os.1 to 3 clothes of Pw.1 under the cover of Ex.P-15 . After observing the scene of offence No.1 at Korivivari kandrika village, he prepared

Ex.P-16 Rough sketch, thereafter he visited the the 2nd scene of offence situated at Sundaraiah colony along with mediators , there he prepared

Ex.P-17 rough sketch of scene No.2 and also observed the scene of offence under cover of Ex.P-18. Later on the next day, on 3-5-2013, at about 5-00 p.m., he arrested the accused and seized M.Os.4 and 5 from him under cover of Ex.P-19 . He also deposed that on 4-5-2013 he examined Lw.10/Annapareddy Chinnaiah and recorded his statement .After collecting Medical Certificate of victim and Potency Certificate of accused and final opinion from the hospital, he laid charge sheet against accused.

24.Thus, except the evidence of Pw.11, there is no iota of evidence against accused to prove the guilt of the accused for the charges levelled against him. The evidence of Investigating Officer alone is not sufficient to convict the accused, as the victim girl herself did not support the case of the prosecution and did not whisper anything against the accused that the accused forcibly kidnapped her from the lawful guardian and took her to Sundaraiah colony and committed rape on her forcibly by making false promise, thereafter he did not marry her and cheated her.

25.Since, there is no iota of evidence against accused and the evidence adduced by the prosecution is not sufficient to prove the guilt of the accused for the charges levelled against him, accused is entitled for 10 S.C.No. 105/2014 dt. 4-5-2015 acquittal and prosecution failed to bring home the guilt of accused for the charges levelled against him.

Hence, Point is answered accordingly.

26.In the result, Accused is FOUND NOT GUILTYfor the charges under Sections 417, 366 and 376 of IPC and hence he is acquitted of the same under Section 232 Cr.P.C. The bail bonds of the accused shall be in force for a period of six months in terms of section 437-A CrPC. M.Os.1 to 5 i.e., Dark colour green punjabi dress, Maroon colour punjabi dress, light pink colour chunni, Blue colour Jeans pant and

Red and white colour full hands shirt respectively shall be destroyed after expiry of appeal time.

Dictated to Stenographer, transcribed and typed by her,

corrected and pronounced by me in the Open Court, this the 4th day of May, 2015.

PRINCIPAL ASSISTANT SESSIONS JUDGE,

NELLORE

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution:

PW.1:Gandikota Sitharamamma

PW.2:Rapuru Tirupatahamma

PW.3:Gandikota Venkateswarlu @ Ramanaiah

Pw.4:Rapuru Nagaraju

Pw.5:Uppu Prameela

Pw.6:Bellamkonda Eswaramma

Pw.7:Marayya Rathnamma

Pw.8Bathala Penchalaiah

Pw.9:A. Venkata Rao, the then Sub-Inspector of police, Nellore Rural police station.

11 S.C.No. 105/2014 dt. 4-5-2015

Pw.10:Rapuru Nageswar Rao

Pw.11:V.Sudhakar Reddy, the then Inspector of police, Nellore Rual Circle, nellore.

For Defence: None

Documents marked

For Prosecution:

Ex.P1:Signature of Pw.1 on the report dt. 1-5-2013

Ex.P2:Contradictory portion in Sec. 161 Cr.P.C statement of PW.1.

dt.1-5-2013

Ex.P3:Contradictory portion in Sec. 161 Cr.P.C statement of PW.2.

dt.1-5-2013

Ex.P4:Contradictory portion in Sec. 161 Cr.P.C statement of PW.3.

dt.1-5-2013

Ex.P5:Contradictory portion in Sec. 161 Cr.P.C statement of PW.4.

dt.2-5-2013

Ex.P6:Contradictory portion in Sec. 161 Cr.P.C statement of PW.5.

dt.2-5-2013

Ex.P7:Contradictory portion in Sec. 161 Cr.P.C statement of PW.6.

dt.2-5-2013

Ex.P-8:Contradictory portion in Sec. 161 Cr.P.C statement of PW.7.

dt.2-5-2013

Ex.P-9:Contradictory portion in Sec. 161 Cr.P.C statement of PW.8.

dt.2-5-2013

Ex.P-10:Report given by Pw.1 to the police dt. 1-5-2015

Ex.P-11:FIR in Cr.No.179/2013 of Nellore Rural Police station dt.1-5- 2013

Ex.P-12:Signature of Pw.10 in Scene observation Mahazar No.I dt.2-5-2013

Ex.P-13:Signature of Pw.10 in Scene observation Mahazar No.II dt.2-5- 2013

Ex.P-14:Signature of Pw.10 in Mahazar dated 3-5-2013.

Ex.P-15:Scene observation report No.1 dt.2-5-2013

Ex.P-16:Rough sketch of scene of offence No.1 dt.2-5-2013.

Ex.P-17:Rough sketch of scene of offence No.2 dt.2-5-2013

Ex.P-18:Scene observation Report No.2 dt. 2-5-2013.

Ex.P-19:Mahazarnama dt. 3-5-2013 12 S.C.No. 105/2014 dt. 4-5-2015

Ex.P-20:Wound Certificate of Pw.1 dt. 7-5-2013.

Ex.P-21:Final opinion given by Medical Officer dt. 29-8-2013

Ex.P-22:Potency Certificate of accused dt.10-5-2013

Ex.P-23: Forensic Science laboratory report. dt.5-8-2013.

For Defence: NIL

Material Objects marked:

M.O.1: Dark colour green punjabi dress.

M.O.2: Maroon colour punjabi dress

M.O.3: Light pink colour chunni

M.O.4: Blue colour Jeans pant

M.O.5: Red and white colour full hands shirt .

PRINCIPAL ASSISTANT SESSIONS JUDGE,

NELLORE.

Copies submitted to:-

1. The Hon'ble Registrar (Judl.), High Court of Andhra Pradesh, HYDERABAD, through the Principal District & Sessions Judge,

NELLORE.

2. The Hon'ble Principal District & Sessions Judge, NELLORE.

Copies to:-

3. The District Collector, NELLORE

4. The Superintendent of Police, NELLORE (Two copies)

5. The Additional Public Prosecutor, NELLORE.

6. The IV Additional Judicial Magistrate of First Class, Nellore

7. The Station House Officer, Nellore Rural Police Station.

1 OS .No. 417/2011 dt. 2-5-2015

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NELLORE

Dated this the 2 nd day of May, 2015.

Present:- Smt.S.RAJANI,

Principal Senior Civil Judge, Nellore

O.S.No. 417/2011

Margadarsi Chit Fund Private Limited, represented by its Foreman/Manager,

Vedayapalem Branch at Nellore. ...Plaintiff

Vs.

1. Nara Sudhakar Naidu

2. Gudi Venkata Ramana Naidu

3. Mallaguri Srinivasulu

4. Vakkalagadda Sudhakar Naidu

5. Rachpalli Reddy Prasad Reddy

6. Maddipatla Sreenivasulu Naidu. ...Defendants

This suit coming on 30-4-2015 before me for final hearing in the presence of

Sri D. Hanumantha Rao, Advocate for the Plaintiff and of Sri N.Naga Srinivas,

Advocate for D-1 and D-3, later D-1 to D-6 having remained exparte, having stood over for consideration to this day, this court delivered the following:-

JUDGMENT

This suit is filed for recovery of amount from the defendants due to the plaintiff's chit fund company.

2.(i)Brief facts of the plaintiff's case are that the plaintiff is a registered chit fund company , having one of its branch office at Nellore and doing chit fund business. The 1st defendant joined one of the subscribers in the chit fund scheme of the plaintiff-company vide ticket No.LT 2CNV-23 on 27-10-2007 for chit value of Rs.15,00,000/- to be subscribed @ 30,000/- p.m in 50 equal monthly instalments and executed an Agreement of chit. In the chit auction conducted on 20-4-2008, the 1st defendant participated in the chit and became highest bidder, having agreed to forego Rs.6,00,000/- out of Rs.15,00,000/- which was duly confirmed by the plaintiff-company. After deducting companies commission from 2 OS .No. 417/2011 dt. 2-5-2015 the foregoing amount, the balance was distributed among all the members.

(ii)As per the rules of the company, the 1st defendant furnished defendants 2 to 6 as his guarantors for his future liability of payment of balance chit instalments, who executed an Agreement of Guarantee and also executed a joint promissory note for a sum of Rs.13,80,000/- . The 1st defendant was paid total prize amount. He paid a sum of Rs.1,20,000/- only by the date of auction. In total , the 1st defendant paid 25 instalments and committed default from 26th instalment.

Inspite of repeated demands and issuance of legal notice dated 15-5-2010, the defendants failed to pay any amount, hence the suit is filed for recovery of outstanding balance amount due from all the defendants.

3.The first defendant filed his written statement and the same was adopted by the 3rd defendant and the other defendants remained exparte.

4.The 1st defendant in his written statement denied all the plaint averments including the execution of Agreement of chit by him and Agreement of guarantee by other defendants and execution of pronote by all the defendants. He contended that the calculation made by the plaintiff is not correct and the plaintiff claimed excessive interest and the statement of account is not correct. The plaintiff did not furnish the entire ledger and hence the suit is liable to be dismissed.

5.Basing on the above pleadings, the following issues are settled for trial of the suit:-

1)Whether the plaintiff is entitled fora decree against the

defendants for recovery of entire suit amount?

2) To what relief, plaintiff is entitled?

6.During the course of trial, on behalf of the plaintiff, Pw.1 was examined and got marked Exs.A-1 to A-17. The defendants did not choose to cross-examine Pw.1 and remained exparte at this stage of trial.

3 OS .No. 417/2011 dt. 2-5-2015

7.Heard the arguments advanced by the counsel for the plaintiff and no arguments are advanced on behalf of the defendant.

8.ISSUE No.1 :-

To prove the suit claim, the plaintiff company earlier filed chief- examination affidavit of the then Assistant Manager K.Srinivas and got marked

Exs.A-1 to A-17, but subsequently the plaintiff-company filed an application to permit them to examine another Manager as Pw.1, as K.Srinivas resigned his job and to eschew his evidence. The said application in I.A.No.151/2015 was allowed by eschewing the chief-examination affidavit of Pw.1, permitting the plaintiff company to examine another Manager. Thereafter, the plaintiff company got examined one A.Mohan Krishna as Pw.1 and got marked Exs.A-1 to A-17.

9.The chief-examination of Pw.1 is nothing but repetition of all the plaint averments. As already stated earlier, the defendant did not choose to cross- examine Pw.1 and remained exparte. The unchallenged testimony of Pw.1 coupled with Exs.A-1 to A-17 would clearly go to show that the 1stdefendant joined as one of the subscribers in the suit chit transaction and executed Agreement of chit, thereafter he became highest bidder, for his future liability, the defendants 2 to 6 stood as guarantors and executed an Agreement of guarantee and all of them executed Demand Promissory note. The 1st defendant paid in 25 instalments only and committed default in payment of 26th instalment . Inspite of issuance of legal notice, the defendants failed to pay the balance amount. Hence all the defendants are jointly and severally liable to pay the entire suit amount due to the plaintiff- company in the chit transaction. Hence the plaintiff company is entitled for a decree against the defendants jointly and severally as prayed for.

Hence, issue No.1 is answered accordingly.

4 OS .No. 417/2011 dt. 2-5-2015

10.ISSUE No.2::-In view of my findings on Issue No.1, plaintiff is entitled for decree against all the defendants jointly and severally as prayed for.

11. IN THE RESULT, the suit is decreed with costs against the defendants jointly and severally , for a sum of Rs. 8,07,600/- together with interest @ 12% p.a.,from the date of the suit till the date of the decree and thereafter @ 6% p.a., till the date of realization on Rs. 6,90,000/-.

Dictated to Stenographer, transcribed and typed by her,

corrected and pronounced by me in Open Court, this the 2nd day of May, 2015.

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

PW.1: A. Mohana Krishna.

For Defendants: -None-

DOCUMENTS MARKED

For plaintiff:

Ex.A1: Agreement of Chit dated 27-10-2007 executed by 1st defendant in favour of plaintiff company.

Ex.A-2: Agreement of Guarantee dated 6-7-2008 executed by D-2 to D-6 in favour of plaintiff company.

Ex.A-3: Demand Promissory note dt.6-7-2008 executed by D-1 to D-d6 in favour of plaintiff company.

Ex.A-4: Payment voucher

Ex.A-5: Office copy of legal notice dated 15-5-2010

Ex,.A-6: Postal acknowledgement of D-1

Ex.A-7: Postal acknowledgement of D-3.

Ex.A-8: Postal acknowledgement of D-6.

Ex.A-9: Returned unserved postal cover of D-2.

5 OS .No. 417/2011 dt. 2-5-2015

Ex.A-10: Returned unserved postal cover of D-4.

Ex.A-11: Returned unserved postal cover of D-5

Ex.A-12: True copy of Certificate of incorporation

Ex.A-13: True copy of Bye-laws.

Ex.A-14: Statement of account

Ex.A-15; Bye-laws acknowledgement of D-1.

Ex.A-16: True copy of authorization given to M.Venugopal, Manager of plaintiff's company

Ex.A-17: True copy of Authorisation executed in favour of A.Mohana Krishna,

Foreman/Manager of plaintiff's company.

For Defendants: -Nil-

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE.

1 OS .No. 613/2011 dt. 2-5-2015

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NELLORE

Dated this the 2 nd day of May, 2015.

Present:- Smt.S.RAJANI,

Principal Senior Civil Judge, Nellore

O.S.No. 613/2011

Uppalapati Ramesh ...Plaintiff

Vs.

1. Sk.Nazeer Ahmad

2. Sk.Ghousunnisa Begum ...Defendants

This suit coming on 28-4-2015 before me for final hearing in the presence of

Smt R.Aruna Kumari, advocate for the Plaintiff and of Sri P.Nageswara Rao,

Advocate for defendants, later, defendants having remained exparte, having stood over for consideration to this day, this court delivered the following:-

JUDGMENT

This suit is filed for recovery of amount basing on a promissory note.

2.Brief facts of the plaintiff's case are that both the defendants borrowed a sum of Rs.2,00,000/- from the plaintiff on 21-8-2008 for his family necessities, agreeing to repay the same with interest at 24% p.a., and jointly executed the promissory note. But inspite of repeated demands made by the plaintiff, the defendants failed to pay the same any amount due under the promissory note, as such the plaintiff filed the suit against them for recovery of amount with contractual rate of interest as they are not agriculturists.

3.(i)The first defendant filed his written statement and the same was adopted by the 2nd defendant.

(ii)The 1st defendant in his written statement denied the suit debt transaction and execution of suit promissory note. He contended that he is an employee and he has no need or necessity to borrow any amount from and to borrow a scribe for scribing the promissory note and the suit promissory note is 2 OS .No. 613/2011 dt. 2-5-2015 fabricated one.

(iii) He further contended that he is retired employee and he has no avocation, except agriculture at present and his principal source of livelihood is only on agriculture, hence the interest @ 24% p.a., to be scaled down.

(iv)He further contended that he borrowed a sum of Rs.50,000/- only from the plaintiff towards the said debt transaction and the plaintiff had taken his signatures on blank promissory note form and subsequently on 30-4-2010, he paid a sum of Rs.1,00,000/- in full and final settlement of the said amount of

Rs.50,000/- in the presence of G.Vangalreddy, land lord and Y.Rajamannar, Bank

Employee. The plaintiff did not return the promissory note stating that it was misplaced . Reposing confidence on the plaintiff, he did not insist for taking back the same. Taking advantage of the said promissory note, the suit is filed with false allegations. Hence the suit is liable to be dismissed.

4.Basing on the above pleadings, the following issues are settled for trial of the suit:-

1)Whether the suit promissory note is true and is supported by consideration?

2) Whether the suit promissory note is fabricated one as contended by the defendants?

3) Whether the plaintiff is entitled for any decree against the

defendants for recovery of entire suit amount?

4) To what relief, plaintiff is entitled?

5.During the course of trial, on behalf of the plaintiff, plaintiff got himself was examined as Pw.1 and got marked Ex.A-1. The defendant did not choose to cross-examine Pw.1 and remained exparte and he did not adduce any evidence on his behalf..

3 OS .No. 613/2011 dt. 2-5-2015

6.Heard the arguments advanced by the counsel for the plaintiff and no arguments are advanced on behalf of the defendant and the same was treated as heard.

7.ISSUE Nos.1 to 3:-

Since the defendant has taken a plea that the suit promissory note was fabricated, taking advantage of the signed promissory note obtained by him at the time of borrowing a sum of Rs.50,000/- from the plaintiff, as such, the initial burden is on the plaintiff to prove that the suit promissory note was executed after borrowing a sum of Rs.2,00,000/- on 21-8-2008.

8.Hence to discharge the initial burden cast upon him, the plaintiff got himself examined as Pw.1 and got marked Ex.A-1 suit promissory note dated 21-8-2008 executed by the defendant in favour of plaintiff for Rs.2,00,000/-.

9.Pw.1 in his evidence/affidavit reiterated all the plaint averments. As already stated earlier, the defendant did not choose to cross-examine Pw.1. Hence the unchallenged testimony of Pw.1 coupled with Ex.A-1 would clearly establish that the defendant borrowed a sum of Rs.2,00,000/- from the plaintiff on 21-8- 2008, agreeing to repay the same with interest at 24% p.a., and executed Ex.A-1 suit promissory note in favour of plaintiff and failed to repay the amount due under

Ex.A-1 suit promissory note. Though the defendant has taken a plea that his primary source of income is agriculture, but he has not placed any proof for the same and he is a retired employee and is getting pension amount also, as such his contention that interest is to be scaled down cannot be taken into consideration.

Hence the plaintiff is entitled for recovery of entire amount due under suit promissory note from the defendant with contractual rate of interest only. Hence, he is entitled for a decree against the defendants as prayed for.

Hence, issue Nos.1 to 3 are answered accordingly.

4 OS .No. 613/2011 dt. 2-5-2015

10.ISSUE No.4::-In view of my findings on Issue Nos.1 to 3, plaintiff is entitled for decree against the defendants as prayed for.

11. IN THE RESULT, the suit is decreed with costs against the defendants, for a sum of Rs. 3,43,600/- together with interest @ 12% p.a.,from the date of the suit till the date of the decree and thereafter @ 6% p.a., till the date of realization on Rs. 2,00,000/-.

Dictated to Stenographer, transcribed and typed by her,

corrected and pronounced by me in Open Court, this the 2nd day of May, 2015.

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

PW.1: Uppalapati Ramesh

For Defendants: -None-

DOCUMENTS MARKED

For plaintiff:

Ex.A1: Suit promissory note dated 21-8-2008 executed by the defendant in favour of plaintiff for Rs.2,00,000/-.

For Defendants: -Nil-

PRINCIPAL SENIOR CIVIL JUDGE,

NELLORE.