S. Surendra Babu Reddy

IN THE COURT OF THE SESSIONS JUDGE: GUNTUR.

PRESENT: SRI S.SURENDRA BABU REDDY, B.Com., M.L.,

SESSIONS JUDGE.

Thursday, the 29th day of March, 2012.

CRIMINAL REVISION PETITION NO.197/2011.

Between:

Srinivasa Auto Financiers, Rep. by its Managing Partner, Movva Ramaseshagiri Rao. …Revision Petitioner/Complainant.

-And-

1. Kancharla Bharathi (Accused).

2. The State, Rep. by Public Prosecutor, Guntur. … Respondents.

This revision petition came up on this day for final hearing before me in the presence of Sri L.Srinivasu, advocate for revision petitioner;

Sri B.Veeresh, advocate for R-1; learned Public Prosecutor for R-2 and the matter having stood over for consideration till this day, this Court made the following:

O R D E R

This revision is filed U/Secs.397 and 399 of Cr.P.C. by the complainant in C.C.No.279/2003 on the file of the court of Addl. Junior

Civil Judge, Ponnur questioning the correctness and legality of the order,

dated 9-9-2011 dismissing the complaint U/Sec.204(4) of Cr.P.C. for not

depositing the Advocate-Commissioner’s fee as per order, dated 8-6-2011.

2.The facts leading to filing of this revision, in brief, are as follows:

On the private complaint filed by the revision petitioner (hereinafter referred to as ‘complainant’) against R-1 (hereinafter referred to as ‘the accused’), cognizance was taken by the court of Addl. Junior Civil Judge, 2

Ponnur (hereinafter referred as ‘trial court’) for the offence punishable

U/Sec.138 of N.I.Act. As the accused received summons and remained absent, a non-bailable warrant was issued against him. As the same remained unexecuted, the trial court appointed an Advocate-

Commissioner on 8-6-2011 and ordered to deposit an amount of

Rs.5000-00 towards Commissioner’s fee. On 9-9-2011, as the

Commissioner’s fee was not deposited by the complainant, the trial court dismissed the complaint on 9-9-2011.

3.The complainant aggrieved by this order, filed this revision and the leaned counsel for the complainant contended that the very order passed by the trial court U/Sec.72 of Cr.P.C. is not legal , since the order is not in consonance with the requirements of Sec.72 of Cr.P.C. He further contended that it is the duty of the court to see that the process issued by it, is executed. Hence, instead of giving appropriate directions to the concerned police to execute non-bailable warrant issued against the accused, who is very much available and evading the process of the court, passed an order U/Sec.72 of Cr.P.C. and fixed heavy amount as

Advocate-Commissioner’s fee, which, in fact, amounts to penalizing the complainant for no fault of him. He further argued that the very fact that the accused has received summons in the Criminal Revision Petition and made an appearance through an advocate shows that though he is very much available, evading the process of the court and purposely failed to attend before the trial court. It is, therefore, urged that the order of the trial court is neither correct nor legal and hence, the same is liable to be set aside.

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4.Heard the learned Public Prosecutor. Since there is no representation for R-1, arguments of R-1 are treated as heard.

5.The point for consideration is, whether the order of the trial court dismissing the complaint on 9-9-2011 in C.C.No.279/2003 for not depositing Commissioner’s fee as per orders, dated 8-6-2011 is correct and legal and whether the same has to be confirmed, reversed or modified?

6.POINT:

The very fact, as urged by the learned counsel for the complainant that the accused has received summons in the Criminal Revision Petition and made an appearance through an advocate itself shows that the accused is purposely evading to appear before the trial court. Therefore, it is also obvious that the accused is evading arrest and execution of non- bailable warrant issued against him by the trial court. Therefore, it is the duty of the court to see that the process issued by it, is executed properly and should not give an impression to the accused that he can evade the arrest and execution of non-bailable warrant issued against him and can go scot free. If the trial court, instead of taking effective steps to see the non-bailable warrant or other process issued by it, is executed, pass the order of appointing Commissioner at the cost of the complainant for the execution of non-bailable warrant, the same will encourage the accused to evade process of the court.

7.Sec.72 of Cr.P.C. reads as follows:

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its 4 immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

Therefore, it is evident from this section that where immediate execution of the warrant of arrest issued by the court is necessary and no police officer is immediately available, then only, the court can direct any other person to execute the warrant of arrest.

8.The case record does not reveal that there is immediate execution of non-bailable warrant issued against the accused is necessary in this case. Further, order of the trial court in appointing Advocate-

Commissioner also does not reveal that immediate execution of non- bailable warrant issued against the accused is necessary in this case and no police officer is immediately available for its execution. Therefore, the very order passed by the trial court in appointing Commissioner to execute non-bailable warrant is not in accordance with the requirements of Sec.72 of Cr.P.C. and hence, not correct and legal.

9.In the circumstances, since the very passing of the order by the trial court U/Sec.72 of Cr.P.C. is not correct and legal, consequently, the dismissal of the complaint for not depositing the Commissioner’s fee, shall be held as not correct and legal. Therefore, the order of dismissal of the complaint on 9-9-2011 passed by the trial court for not depositing

Commissioner’s fee is not sustainable and is liable to be set aside.

10.In the light of the above discussion, I hold that the order of the trial court in dismissing the complaint U/Sec.204(4) of Cr.P.C. on 5 9-9-2011 for not depositing the Commissioner’s fee is not correct and legal and is liable to be set aside. Point is answered accordingly.

11.IN THE RESULT, the Criminal Revision Petition is allowed. The order of dismissal of the complaint, dated 9-9-2011 passed by the learned Addl. Junior Civil Judge, Ponnur in C.C.No.279/2003, is set aside.

The complaint is restored to file. Consequently, the order of the trial court in appointing the Advocate-Commissioner stands cancelled. The complainant and R-1/accused are directed to appear before the trial court on 16-4-2012 without further notice. If the accused fails to appear

before the trial court on that day, the trial court is directed to issue non-

bailable warrant against the accused and proceed with the case according to law.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open Court, this the 29th day of March, 2012.

Sd/- S.Surendra Babu Reddy,

DISTRICT JUDGE

GUNTUR.

Copy to the Addl. Junior Civil Judge, Ponnur.

// TRUE COPY //

SESSIONS JUDGE

GUNTUR.

IN THE COURT OF THE SESSIONS JUDGE: GUNTUR.

PRESENT: SRI S.SURENDRA BABU REDDY, B.Com., M.L.,

SESSIONS JUDGE.

Thursday, the 29th day of March, 2012.

CRIMINAL REVISION PETITION NO.188/2011.

Between:

Srinivasa Auto Financiers, Rep. by its Managing Partner, Movva Ramaseshagiri Rao. …Revision Petitioner/Complainant.

-And-

1. Vutikonda Srinivasa Rao (Accused).

2. The State, Rep. by Public Prosecutor, Guntur. … Respondents.

This revision petition came up on this day for final hearing before me in the presence of Sri L.Srinivasu, advocate for revision petitioner; learned Public Prosecutor for second respondent; R-1 called absent and the matter having stood over for consideration till this day, this Court made the following:

O R D E R

This revision is filed U/Secs.397 and 399 of Cr.P.C. by the complainant in C.C.No.288/2004 on the file of the court of Addl. Junior

Civil Judge, Ponnur questioning the correctness and legality of the order,

dated 9-9-2011 dismissing the complaint U/Sec.204(4) of Cr.P.C. for not

depositing the Advocate-Commissioner’s fee as per order, dated 2-6-2011.

2.The facts leading to filing of this revision, in brief, are as follows:

On the private complaint filed by the revision petitioner (hereinafter referred to as ‘complainant’) against R-1 (hereinafter referred to as ‘the accused’), cognizance was taken by the court of Addl. Junior Civil Judge, 2

Ponnur (hereinafter referred as ‘trial court’) for the offence punishable

U/Sec.138 of N.I.Act. As the accused received summons and remained absent, a non-bailable warrant was issued against him. As the same remained unexecuted, the trial court appointed an Advocate-

Commissioner on 2-6-2011 and ordered to deposit an amount of

Rs.5000-00 towards Commissioner’s fee. On 9-9-2011, as the

Commissioner’s fee was not deposited by the complainant, the trial court dismissed the complaint on 9-9-2011.

3.The complainant aggrieved by this order, filed this revision and the leaned counsel for the complainant contended that the very order passed by the trial court U/Sec.72 of Cr.P.C. is not legal , since the order is not in consonance with the requirements of Sec.72 of Cr.P.C. He further contended that it is the duty of the court to see that the process issued by it, is executed. Hence, instead of giving appropriate directions to the concerned police to execute non-bailable warrant issued against the accused, who is very much available and evading the process of the court, passed an order U/Sec.72 of Cr.P.C. and fixed heavy amount as

Advocate-Commissioner’s fee, which, in fact, amounts to penalizing the complainant for no fault of him. He further argued that the very fact that the accused has received summons in the Criminal Revision Petition and also did not attend the court shows that though he is very much available, evading the process of the court and purposely failed to attend

before the trial court. It is, therefore, urged that the order of the trial

court is neither correct nor legal and hence, the same is liable to be set aside.

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4.Heard the learned Public Prosecutor. Since R-1 received summons and did not attend the court, arguments of R-1 are treated as heard.

5.The point for consideration is, whether the order of the trial court dismissing the complaint on 9-9-2011 in C.C.No.288/2004 for not depositing Commissioner’s fee as per orders, dated 2-6-2011 is correct and legal and whether the same has to be confirmed, reversed or modified?

6.POINT:

The very fact, as urged by the learned counsel for the complainant that the accused has received summons in the Criminal Revision Petition and did not attend the court itself shows that the accused is purposely evading to appear before the trial court. Therefore, it is also obvious that the accused is evading arrest and execution of non-bailable warrant issued against him by the trial court. Therefore, it is the duty of the court to see that the process issued by it, is executed properly and should not give an impression to the accused that he can evade the arrest and execution of non-bailable warrant issued against him and can go scot free. If the trial court, instead of taking effective steps to see the non- bailable warrant or other process issued by it, is executed, pass the order of appointing Commissioner at the cost of the complainant for the execution of non-bailable warrant, the same will encourage the accused to evade process of the court.

7.Sec.72 of Cr.P.C. reads as follows:

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its 4 immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

Therefore, it is evident from this section that where immediate execution of the warrant of arrest issued by the court is necessary and no police officer is immediately available, then only, the court can direct any other person to execute the warrant of arrest.

8.The case record does not reveal that there is immediate execution of non-bailable warrant issued against the accused is necessary in this case. Further, order of the trial court in appointing Advocate-

Commissioner also does not reveal that immediate execution of non- bailable warrant issued against the accused is necessary in this case and no police officer is immediately available for its execution. Therefore, the very order passed by the trial court in appointing Commissioner to execute non-bailable warrant is not in accordance with the requirements of Sec.72 of Cr.P.C. and hence, not correct and legal.

9.In the circumstances, since the very passing of the order by the trial court U/Sec.72 of Cr.P.C. is not correct and legal, consequently, the dismissal of the complaint for not depositing the Commissioner’s fee, shall be held as not correct and legal. Therefore, the order of dismissal of the complaint on 9-9-2011 passed by the trial court for not depositing

Commissioner’s fee is not sustainable and is liable to be set aside.

10.In the light of the above discussion, I hold that the order of the trial court in dismissing the complaint U/Sec.204(4) of Cr.P.C. on 5 9-9-2011 for not depositing the Commissioner’s fee is not correct and legal and is liable to be set aside. Point is answered accordingly.

11.IN THE RESULT, the Criminal Revision Petition is allowed. The order of dismissal of the complaint, dated 9-9-2011 passed by the learned Addl. Junior Civil Judge, Ponnur in C.C.No.288/2004, is set aside.

The complaint is restored to file. The trial court is directed to issue fresh non-bailable warrant against the accused and proceed with the matter in accordance with law. Consequently, the order of the trial court in appointing the Advocate-Commissioner stands cancelled. The complainant is directed to appear before the trial court on 16-4-2012 without further notice.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open Court, this the 29th day of March, 2012.

Sd/- S.Surendra Babu Reddy,

DISTRICT JUDGE

GUNTUR.

Copy to the Addl. Junior Civil Judge, Ponnur.// TRUE COPY //

SESSIONS JUDGE

GUNTUR.

IN THE COURT OF THE DISTRICT JUDGE: GUNTUR.

PRESENT: SRI S.SURENDRA BABU REDDY, B.Com., M.L.,

DISTRICT JUDGE.

Tuesday, the 27th day of March, 2012.

T.O.P.NO.910/2011.

Between:

Sri Shirdi Sai Seva Sangham, rep. by its President, Vellaturi Bollaiah. … PETITIONER.

-And-

1. Eluru Durgarao.

2. Thota Seshagirirao.

3. Pamulapati Venkateswararao.… RESPONDENTS.

This petition came up on this day for final hearing before me, in the presence of Sri P.Venkateswarlu, advocate for petitioner; Sri M.Sravankumar, advocate for respondents and upon perusing the petition, counter and material papers available on record, this Court made the following:

O R D E R

This is a petition filed U/Sec.24 of C.P.C. by the plaintiff in

O.S.No.118/2010 on the file of the court of IV Addl. District

Judge, Guntur praying to transfer the same to the court of III

Addl. Junior Civil Judge, Guntur contending that the suit was transferred to the court of IV Addl. District Judge, Guntur from the court of III Addl. Junior Civil Judge, Guntur to try along with

S.O.P.No.249/2010, that by a common order, the IV Addl. District

Court on a preliminary issue as to the maintainability of these proceedings,heldthatO.S.No.118/2010is maintainable in a Civil Court and S.O.P.No.249/2010 does not attract the provisions of Societies Act and consequently, 2 dismissed S.O.P.No.249/2010 and thus, it is just and necessary that O.S.No.118/2010 be transferred to the court of III Addl.

Junior Civil Judge, Guntur, from which court it was withdrawn.

2.The second respondent, who is the second defendant in

O.S.No.118/2010, filed a counter and the respondents 1 and 3,

who are the defendants 1 and 3 adopted the same contending that the District Court is competent to try the suit, even if the value of the suit is Rs.10,000-00 and for permanent injunction and though the common order was passed on 28-9-2010, the petitioner kept quiet for all these days and filed this petition to protract the proceedings. It is further stated that as the matter is complicated, it will be better that the suit be decided by a

District Judge. There are no grounds to re-transfer the suit and

hence, the petition is liable to be dismissed.

3.Heard both sides.

4.The point for consideration is, whether O.S.No.118/2010 has to be withdrawn from the court of IV Addl. District Judge,

Guntur and transferred to the court of III Addl. Junior Civil Judge,

Guntur?

5.POINT:

It is not in dispute that O.S.No.1757/2007 was withdrawn from the court of III Addl. Junior Civil Judge, Guntur and transferred to the court of IV Addl. District Judge, Guntur to dispose of along with S.O.P.No.249/2010, which on transfer, was renumbered as O.S.No.118/2010 and that, by a common order, on a preliminary issue, the learned IV Addl. District Judge 3 dismissed S.O.P.No.249/2010 as not maintainable under

Societies Act, also finding that the suit is maintainable before a

Civil Court.

6.It is to be seen that the District Court is competent to try any suit even if the value of the suit is below its pecuniary limits and triable by the court of a Junior Civil Judge. But, considering the fact that S.O.P.No.2149/2010 is already dismissed, the continuation of the suit on the file of the court of IV Addl. District

Judge, Guntur will burden the court, which is already burdened

with heavy matters.

7.In the circumstances, it is just and proper that

O.S.No.118/2010 be withdrawn and transferred to the court

from which it was withdrawn. Point is answered accordingly.

8.IN THE RESULT, the petition is allowed. O.S.No.118/2010 is withdrawn from the court of IV Addl. District Judge, Guntur and made over to the court of III Addl. Junior Civil Judge, Guntur for disposal according to law, with a direction that since the suit is of the year 2007, to dispose of the matter within four months from the date of this order.

Dictated to Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 27th day of March, 2012.

Sd/- S.Surendra Babu Reddy,

DISTRICT JUDGE

GUNTUR. Copy to:

1. The IV Addl. District Judge, Guntur.

2. The III Addl. Junior Civil Judge, Ponnur.

IN THE COURT OF THE DISTRICT JUDGE: GUNTUR.

PRESENT: SRI S.SURENDRA BABU REDDY, B.Com., M.L.,

DISTRICT JUDGE.

Tuesday, the 27th day of March, 2012.

T.O.P.NO.909/2011.

Between:

1. Muddana Koteswaramma.

2. Gummadi Laxmi.

3. Marupudi Prameela. … PETITIONERS.

-And-

1. Muddana Venkataratnam.

2. Muddana Mallikharjunarao.

3. Muddana Hari Haraprasad.

4. Muddana Rajeswari.

5. Kakumanu Anjana.

6. Vattikuti Seetha.

7. Nikkili Madhusudhanarao.

8. State, rep. by its Collector, Guntur. … RESPONDENTS.

This petition came up on this day for final hearing before me, in the presence of Sri P.Vijaykumar, advocate for petitioners; Sri V.Leelaprasad, advocate for R-1; Sri S.L.Narayana, advocate for R-2 to R-6; Sri J.V.Srirama Murthy, advocate for R-7; Sri D.B.Rao, advocate for R-8 and upon perusing the petition and material papers available on record, this Court made the following:

O R D E R

The petitioners are the plaintiffs and the respondents 1 to 8 are the defendants in O.S.No.108/2008 on the file of the court of Senior Civil Judge, Bapatla. The third respondent herein is the plaintiff and the petitioners herein are the defendants in

O.S.No.382/2006 on the file of the court of Prl. Junior Civil Judge,

Ponnur. The petitioners filed this petition U/Sec.24 of C.P.C.

praying to withdraw O.S.No.382/2006 from the court of Prl.

Junior Civil Judge, Ponnur and transfer to the court of Senior Civil

Judge, Bapatla to try along with O.S.No.108/2008.

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2.The respondents though made appearance through advocates, they have not filed any counter. Hence, it is treated that they have no counter.

3.Heard.

4.The point for consideration is, whether O.S.No.382/2006 has to be withdrawn from the court of Prl. Junior Civil Judge,

Ponnur and transferred to the court of Senior Civil Judge, Bapatla to try along with O.S.No.108/2008?

5.POINT:

The petitioners filed O.S.No.108/2008 against the respondents herein seeking partition of the plaint schedule property. The third respondent herein filed O.S.No.382/2006 against the petitioners herein seeking permanent injunction.

Since parties to both the suits are the same and dispute to be decided in both the suits is similar, I am of the opinion that it is just and proper that both the suits be tried by the same court, to avoid conflicting decisions and for better appreciation of the disputed facts, evidence and law. Point is answered accordingly.

6.IN THE RESULT, the petition is allowed. O.S.No.382/2006 is withdrawn from the court of Prl. Junior Civil Judge, Ponnur and made over to the court of Senior Civil Judge, Bapatla to try along with O.S.No.108/2008.

Dictated to Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 27th day of March, 2012.

Sd/- S.Surendra Babu Reddy,

DISTRICT JUDGE

GUNTUR. Copy to:

1. The Senior Civil Judge, Bapatla.

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2. The Prl. Junior Civil Judge, Ponnur.