Ms S.Vani

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IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA.

Present: Ms. S. VANI ,

Civil Judge (Junior Division)

Srungavarapukota

Monday, this the 21st day of April, 2025

O. S. No. 91 of 2022

Between:

Adimulam Eswara Rao, S/o Suryarao, Hindu, Aged 53 years, Resident of Munasubveedhi, Srungavarapukota Village and Mandal, Vizianagaram District.

….. Plaintiff

And:

Jonna Varalaxmi, W/o late Jonna Sreenivasa Rao, RTC Driver, Hindu, Aged about 40 years, Presently residing at Punyagiri Road, Srungavarapukota Village and Mandal, Vizianagaram District.

….. Defendant

This suit is coming on 17-04-2025before me for final hearing in the presence of Sri R. Satyanarayana, Advocate for the Plaintiff and Sri G. Eswara Rao, Advocate for the Defendant and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-

::JUDGMENT::

1.The suit is filed by the plaintiff against the defendant for recovery of an amount of Rs.3,16,000/- (Rupees Three Lakhs and Sixteen

Thousand only) basing on promissory note dated 10.01.2020 said to be executed by the deceased Jonna Srinivasa Rao in favour of the plaintiff for an amount of Rs.2,00,000/-(Rupees Two Lakhs only) agreeing to repay the same with interest @ 24% per annum and for costs of the suit.

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2. The brief pleadings stemming out of the plaint are as follows:

a) One Jonna Srinivasa Rao who is the husband of the defendant, during his life time he borrowed an amount of Rs.2,00,000/- (Rupees Two Lakhs only) from the plaintiff on 10.01.2020 for his joint family necessities and duly executed a promissory note on the same day at

Srungavarapukota Village and Mandal in favour of the plaintiff agreeing to repay the same with interest at the rate of 24% per annum payable to the plaintiff or his order on demand.

b) While so the said Jonna Srinivasa Rao the executant of the suit promissory note died intestate ten months ago leaving the defendant as his legal heir and she succeeded to the estate of the deceased Jonna

Srinivasa Rao and she is in possession and enjoyment of the same. On the death of said Jonna Srinivasa Rao the plaintiff demanded the defendant to pay the suit amount under the suit promissory note dated 10.01.2020 but she did not pay any amount. Hence the plaintiff is constrained to file the suit against the defendant for recovery of the suit debt, costs and subsequent interest from the joint family properties of late Jonna Srinivasa Rao in the hands of defendant.

3.Refuting the averments, the defendant filed written statement denying all allegations made by the plaintiff in the plaint. Defendant submitted that the suit promissory note is forged one and the said Jonna

Srinivasa Rao never borrowed any amount from anybody much less from the plaintiff and never executed any suit promissory notes including this suit promissory note. Defendant again pleaded that the plaintiff have filed this suit without following due procedure and the failed to implead the daughter of the defendant as necessary party in this suit and failed to issue any legal 3 notice to this defendant. Defendant further submitted that the plaintiff with an evil intention to get wrongful gain, created the suit promissory note and filed this false suit. Hence, defendant prayed to dismiss the suit with costs.

4.After hearing the parties and basing on the above pleadings the following issues were settled for trial:

1. Whether the deceased Jonna Srinivasa Rao borrowed an

amount of Rs.2,00,000/- from the plaintiff on executing a

promissory note dated 10.01.2020 or not?

2. Whether any estate belongs to the deceased Jonna Srinivasa Rao is in the hands of defendant or not?

3. Whether the signature of the deceased Jonna Srinivasara Rao was forged or not?

4. Whether the suit is bad for non-joinder of necessary party?

5. Whether the plaintiff is entitled to recover the suit amount as prayed for?

6. To what relief?

5.During the trial, to substantiate his case, the plaintiff examined himself as PW.1 and attestor of the promissory note namely Vepada Chanti was examined as PW.2. Ex.A1 is marked. Ex.A1 is suit promissory note dt.10.01.2020 executed by Jonna Srinivasa Rao in favour of the plaintiff.

PW.1 and PW.2 were cross-examined by the defendant’s counsel. To demolish the case of plaintiff, the defendant examined herself as DW.1 and

Kotamsetti Ramesh, who is APSRTC Depot Manager where the deceased

Jonna Sreenivas was worked is examined as DW.2. Ex.B1 to B3 are marked. Ex.B1 is the certified copy of APSRTC employee Register

Nomination form with specimen signature of husband of DW.1. Ex.B2 is the Original Nomination form dated 08.05.2018 and Ex.B3 is original option form dated 01.01.2020.

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6.Heard both sides. Perused the record carefully and written arguments filed by the defendant. The court has given earnest consideration to the respective submissions of the counsel for the plaintiff as well as defendant.

7. Issue No. 1 and 3:-

In order to avoid recapitulation of facts and evidence, I am inclined to address the issue No.1 and 3 simultaneously.

8.Here in the present suit, the suit is based on a promissory note which is a Negotiable Instrument, it is the duty of the Court to draw a presumption in favour of the plaintiff and the defendant has got every right to rebut the presumption. To discharge the initial burden the plaintiff himself examined as PW.1 and exhibited suit promissory note as Ex.A1 which was executed by the deceased Jonna Srinivasa Rao in his favour in the presence of scribe and attestors. The attestor for Ex.A1 is examined as

PW.2 and he deposed that he was present at the time of transaction and he witnessed the execution of suit promissory note by the deceased Jonna

Srinivasa Rao in favour of the plaintiff. PWs.1 and 2 were cross examined by the defendant counsel but nothing was elicited in support of the contention of the defendant. During the cross examination PW.1 testified that the deceased Jonna Srinivasa Rao borrowed an amount of Rs.

2,00,000/- and executed Ex.A1 promissory note on 10.01.2020 and the consideration of Ex.A1 is in the cash form and the Ex.A1 amount is self savings of the plaintiff and he is doing spices business and getting annual income of Rs. 4,00,000/-. The PW.1 further testified that Ex.A1 transaction took place during 10-00 to 11-00 a.m., at the office of document writer namely Mahesh situated at MRO office, S.Kota and the deceased Jonna

Srinivasarao himself brought promissory note and revenue stamp and the deceased Jonna Srinivasa Rao put two signatures on Ex.A1 and also the thumb impression contained on Ex.A1 belongs to the the deceased Jonna 5

Srinivasa rao. The plaintiff denied the suggestion that he created Ex.A1 by forging the signature of the deceased Jonna Srinivasa Rao and he has no acquaintance with him. The witness PW.2 also supported the PW.1 in material aspects.

9.It is contended by the defendant who is wife of deceased Jonna

Srinivasa Rao that the signatures on Ex.A1 promissory note is not that of the deceased Jonna Srinivasa Rao and it is forged and fabricated one. To substantiate that contention the defendant examined herself as DW.1 and examined depot manager of the APSRTC where the Jonna Srinivasa Rao was worked as DW.2 and Ex’s. B1 to B3 marked. Admittedly there is difference in the signatures of the Jonna Srinivasa Rao contained on Ex.A1 when compared with Ex.B1 to B3. The PW.1 also admitted the said fact.

However, the evidence of DW.1 and DW.2 reveals that they never seen the deceased affixing his signatures in their presence and they cannot identify the signatures of the deceased Jonna Srinivasa Rao. DW.2 further admitted that he cannot say whether the deceased Jonna Srinivasa Rao himself affixed his signature on Ex.B2 and Ex.B3 or not. When that is the evidence adduced by the defendant, the DW.1 cannot deny the signature of the deceased Jonna Srinivasarao on Ex.A1. When the DW.1 never seen the

Jonnada Srinivasa Rao affixing his signature in her presence how can she say that the signatures contained on Ex.A1 does not belongs to the deceased Jonnada Srinivasa Rao. Admittedly, a person can sign differently if he wants and the signatures contained on Ex.B1 to B3 may or may not belongs to the deceased Jonna Srinivasa Rao as no one of the defendant witnesses testified that they have seen the Jonna Srinivasa Rao affixing his signatures on Ex.B1 to B3.

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10.In the absence of any evidence on behalf of the defendant, the suit promissory note which is said to be executed by the deceased Jonna

Srinivasa Rao in the presence of scribe and attestor (PW.2), it can not be held that the suit promissory note is a forged and fabricated one and that the attestor who is an independent witness and who examined as PW.2 also deposed before this Court that the deceased Jonna Srinivasa Rao executed promissory note by affixing his signature on Ex.A1 in his presence and coupled with, the evidence of PW.1 which is not disproved by means of any other evidence by the defendant who is asserting that the signature on suit promissory note is not that of the deceased Jonna Srinivasa Rao.

11.The initial burden which is on the shoulders of the plaintiff was discharged by examining himself as PW.1 and by exhibiting Ex.A1 promissory note and so also by examining PW.2 who is attestor of the suit promissory note and that the burden was shifted to the defendant since she has got the knowledge and the fact was known to her that the suit promissory note was created one. Therefore, the burden shifted on to her shoulders. The person who is knowledge and fact was known as per the

Indian Evidence Act the burden lies on him to discharge the same, by oral evidence or any documentary evidence as per Section 3 of Indian Evidence

Act. Since either fact is said to be believed or disbelieved for its existence.

The defendant did not adduce any evidence or she has not showed any interest and she did not taken any steps to send the document to any hand writing expert either to the State or Central laboratories or any private

Laboratory for its examination of signature instead of it she insisted the court to invoke section 73 of the Indian Evidence Act and compare the signatures of the deceased Jonna Srinivasa Rao contained on Ex.A1 with

Ex.B1 to B3. It is the contention of the defendant that the suit promissory note is forged. Then what prevented her to send the Ex.A1 and Ex.B1 to B3 to expert opinion.

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12.Coming to the contention of the defendant to compare the signatures of the deceased Jonna Srinivasa Rao by invoking the section 73 of the Indian Evidence Act by this court, As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. In Thiruvengadam Pillai vs

Navaneethammal reported in AIR 2008 SC 1541 the Apex Court observed that it is risky to arrive at a conclusion regarding signatures and handwriting without an expert opinion. The relevant paragraph is extracted below:

"16. While there is no doubt that Court can compare the disputed handwriting/ signature/ finger impression with the admitted handwriting/signature/finger impression, such comparison by

Court without the assistance of any expert, has always been considered to be hazardous and risky”.

13.In Ajay Kumar Parmar v. State of Rajasthan reported in

AIR 2013 SC 633 the Apex Court held that, the Courts while dealing with handwriting or signatures cannot itself act as an Expert. The relevant paragraph is extracted below:

"28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said hand writings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of 8 signatures or hand writings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or hand writings for providing a decisive weight or influence to its decision."

14.In the light of the aforesaid discussion, coming to the facts of the present case, as discussed above, the defendant laid foundation by contending in the written statement that the suit promissory note was forged one. However she failed to send the suit promissory to hand writing expert.

The defendant ought to invoke section 45 of the Indian Evidence Act instead of approaching the court to invoke section 73 the Indian Evidence

Act. In the absence of any evidence on behalf of the defendant and moreover as the defendant failed to discharge her burden thus it is clear from the evidence of the plaintiff that the suit promissory note is executed by the deceased Jonna Srinivasa Rao and the signature contained on

Ex.A1 belongs to deceased Jonna Srinivasa Rao.

Hence, this Issue No. 1 and 3 are answered in favour of plaintiff and against the defendant.

15. Issue No.2:-

The plaintiff did not place any evidence before this Court to show that any property of the deceased lying in the hands of the defendants by the date of filing of the suit but the defendant as well not specifically denied in her written statement that she did not inherit the estate of the 9 deceased Jonna Srinivasa Rao. This is a settled position of law which states that if an allegation made in the plaint has not been denied specifically or by necessary implication in a written statement, then it is treated as admitted and as per section section 58 of the Indian Evidence

Act, 1872 facts admitted need not be proved. This admission of the defendants is clear that the the estate of deceased Jonna Srinivasa Rao is in the hands of defendant. Moreover, the DW.1 herself admitted in her cross examination that she is residing in a slabbed house situated in Punyagiri road, S.Kota and the said slabbed house was constructed by her husband with his salary savings and apart from that after the demise of her husband the DW.1 got a job in Sachivalayam on compassionate grounds. Hence, there is no doubt that estate of the deceased Jonna Srinivasa Rao is in the hands of the defendant.

Hence, this Issue No. 2 is answered in affirmative i.e., in favour of plaintiff and against the defendant.

16. Issue No.4:-

The plaintiff filed this suit for recovery of money based on a promissory note executed by the original borrower i.e., Jonna Srinivasa

Rao. Upon his death the suit was instituted against only his wife i.e., the defendant, without impleading the daughter, who is also a legal heir. The defendant contended that the suit is bad for non-joinder of a necessary party since the daughter, being a legal heir, is equally liable for debts of the deceased to the extent of her share in the estate. Under Section 2(11) of the Code of Civil Procedure(herein after referred as C.P.C), a “ legal representative” is one who in law represents the estate of the deceased.

However, liability arises only to the extent to which the estate of the deceased has come into the hands of the legal representative. Moreover, 10 under Order 1 Rule 9 of C.P.C , a suit cannot be defeated merely for non- joinder of a party unless that party is a necessary party i.e., one without whom no effective order can be passed. In the present case since the wife has been impleaded, there is no claim or evidence that the daughter inherited any estate of the deceased, no defence has been taken that the estate is unpresented or improperly represented, there is no failure to represent the estate, therefore, the daughter is not a necessary party, and the suit not bad for non-joinder. In the absence of any defence that the daughter inherited any part of the estate of the deceased Jonna Srinivasara

Rao, the suit filed against the wife (defendant) alone is not bad for non- joinder of a necessary party. The estate is deemed properly represented by wife.

Hence, this Issue No. 4 is answered in negative i.e., in favour of plaintiff and against the defendant.

17. Issue No.5:-

Here in the present suit there is no dispute and it is an admitted fact that the defendant is the legal heir of the deceased Jonna Srinivasa

Rao and the plaintiff was proved that the deceased Jonna Srinivasa Rao executed suit promissory note for Rs.2,00,000/-inhis favour and the plaintiff also proved that the estate of the deceased Jonna Srinivasa Rao is in the hands of defendant. Hence, it is obvious that the defendant who is legal heir of the deceased is liable to be pay the decree amount. Thus the plaintiff is entitled to recover the suit amount against the estate of the deceased which is now in the hands of the defendant.

Hence, this Issue No. 5 is answered in affirmative i.e., in favour of plaintiff and against the defendant.

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18. Issue No.6:

In the result, the suit is decreed with costs for Rs.3,16,000/- (Rupees Three Lakhs and Sixteen Thousand only) in favour of the plaintiff and against the defendant, with subsequent interest @ 12% per annum from the date of filing of suit to till the date of decree and thereafter @ 6% per annum till the realization on the principal amount of promissory note i.e.,

Rs.2,00,000/- (Rupees Two Lakhs). The defendant is directed to pay the said amount from out of the estate of deceased Jonna Srinivasa Rao lying in her hands.

Typed to my dictation by the Typist of this Court, corrected, signed and pronounced by me in open Court, this the 21 st day of April, 2025.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW.1: Adimulam Eswara Rao D.W.1: Jonna Varalaxmi

PW.2: Vepada Chanti D.W.2: Kotamsetti Ramesh

EXHIBITS MARKED

For Plaintiff:

Ex.A.1 : Suit promissory note dated 10-01-2020 executed by defendant in favour of the plaintiff for an amount of Rs.2,00,000/-.

For Defendant:

Ex.B1 : Certified copy of APSRTC employee Register Nomination form with specimen signature of husband of DW.1.

Ex.B2 :Original Nomination form dated 08.05.2018.

Ex.B3 : Original option form dated 01.01.2020.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota 12

Date of Presentation: 13-06-2022 Date of Filing: 13-06-2022

IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA.

Present: Ms. S. VANI ,

Civil Judge (Junior Division)

Srungavarapukota

Monday, this the 21st day of April, 2025

O. S. No. 91 of 2022

Between:

Adimulam Eswara Rao, S/o Suryarao, Hindu, Aged 53 years, Resident of Munasub Veedhi, Srungavarapukota Village and Mandal, Vizianagaram District.

….. Plaintiff

And:

Jonna Varalaxmi, W/o late Jonna Sreenivasa Rao, RTC Driver, Hindu, Aged about 40 years, Presently residing at Punyagiri Road, Srungavarapukota Village and Mandal, Vizianagaram District.

….. Defendant

The suit is filed by the plaintiff against the defendant for recovery of an amount of Rs.3,16,000/- (Rupees Three Lakhs and Sixteen Thousand only) basing on promissory note dated 10.01.2020 said to be executed by the deceased Jonna Srinivasa Rao in favour of the plaintiff for an amount of Rs.2,00,000/-(Rupees Two Lakhs only) agreeing to repay the same with interest @ 24% per annum and for costs of the suit.

The value of the suit for the purpose of Court fee and jurisdiction is Rs.3,16,000/- and Court fee of Rs.5,626/- is paid under section 20 of Schedule -1 of APCF & S.V. Act, 1956 by way of challan

dated 10-06-2022 at SBI, Srungavarapukota.

This suit is coming on 17-04-2025before me for final hearing in the presence of Sri R. Satyanarayana, Advocate for the Plaintiff and Sri G. Eswara Rao, Advocate for the Defendant and upon perusing the material available on record, and upon perusing the material available on record and this court doth order and 13

D E C R E E

i) that the suit be and same is hereby decreed with costs in favour of plaintiff against the defendant for an amount of Rs.3,16,000/- (Rupees Three Lakhs and Sixteen Thousand only) with subsequent interest at the rate of 12% p.a. from the date of the suit till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realization, on the principal amount of Rs.2,00,000/- (Rupees Two Lakhs only) ; and ii) that the defendant do also pay a sum of Rs.17,040 /- towards the costs of the suit to the plaintiff.

Given under my hand and seal of this court, dated this the 21st day of April, 2025.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota

MEMORANDUM OF COSTS

For Plaintiff: For Defendant:

Stamp on Vakalat : Rs. 3-00 Stamp on plaint : Rs. 5,626-00 Stamp on process : Rs. 131-00 Advocate fee : Rs. 11,180-00 No costs memo is filed Typing charges : Rs. 100-00 -------------------- Cost allowed : Rs. 17,040-00 --------------------

Sd/- S. Vani

Civil Judge (Junior Division)

Srungavarapukota

Note : - The parties shall apply, as soon as possible, for the return of documents which they may wish to preserve, as the record and exhibits are liable for destruction as per the rules of destruction of the records.

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IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA.

Present: Ms. S. VANI ,

Civil Judge (Junior Division)

Srungavarapukota

Monday, this the 21st day of April, 2025

O. S. No. 71 of 2023

Between:

Damarasingi Nageswara Rao, S/o late Appanna, Aged about 60 years, Hindu, Resident of Seethampeta, H/o Srungavarapukota Village and Mandal, Vizianagaram District.

….. Plaintiff

And:

1. Kasimkota Srinu, S/o Demudu, Hindu, Aged about 50 years, Resident of Venkata Balaji Residency, Ground Floor, Plot No.102, Sivanandapuram Area, Covered Block No.1, New Resapuvanipalem, Waltair Ward, Greater Visakhapatnam, Municipal Corporation, Visakhapatnam.

2. Kasimkota Eswari, W/o Srinu, Hindu, Aged about 46 years, Resident of Venkata Balaji Residency, Ground Floor, Plot No.102, Sivanandapuram Area, Covered Block No.1, New Resapuvanipalem, Waltair Ward, Greater Visakhapatnam, Municipal Corporation, Visakhapatnam.

….. Defendants

This suit is coming on 17-04-2025before me for final hearing in the presence of Sri G. S. Demudu, Advocate for the Plaintiff and Sri G. Mahendra, Smt M. Anuradha and Sri P. Santosh Kumar, Advocates for the Defendants and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-

::JUDGMENT::

1.This suit is filed by the plaintiff for recovery of sum of

Rs.7,98,000/- (Rupees Seven Lakhs and Ninety Eight Thousand only) with costs and subsequent interest basing upon suit promissory note dated 12.01.2021.

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2. The case of the plaintiff in a narrow compass which is as follows:

On 12.01.2021, defendants jointly borrowed an amount of Rs.

5,00,000/- (Rupees Five Lakhs only) from the plaintiff for discharge of their family debts and after receiving consideration executed a promissory note infavour of the plaintiff on the same day at Srungavarapukota village by agreeing to repay the same with interest @ 24% p.a payable to the plaintiff or his order on demand. Later inspite of repeated demands made by the plaintiff, the defendants failed to repay the amount due under suit promissory note and they postponed the same with a view of evasion.

Hence, the plaintiff is constrained to file this suit for recovery of the suit amount.

3.The suit was resisted by the defendants by filing written statement by the 1st defendant and same was adopted by the 2nd defendant.

The defendants submitted that the plaintiff is father of the 2nd defendant and father-in-law of the 1st defendant and the plaintiff previously lent an amount of Rs. 5,00,000/- to the defendants by obtaining blank signed promissory note, Rs. 100/- Non-Judicial stamp for purchase of house and immediately after registration of the house, the said house documents vide document No. 3396/2016 were obtained by the plaintiff and brother of the 2nd defendant from the defendants as collateral security. It is further submitted that subsequently the defendants repaid entire amount along with interest and cleared the loan, but the plaintiff returned only house document and he did not return documents viz., signed promissory note and Rs. 100/-

Non-Judicial stamp paper to the defendants stating that same were misplaced. The defendants further submitted that plaintiff told that he will return the said documents as and when traced out and believing his words 3 the defendants kept silent and taking advantage of the same the plaintiff did not return the same to the defendants even though they demanded the plaintiff for several times by person or through mediators.

The defendants further submitted that the defendants lodged a report before the III-Town police station, Visakhapatnam on 27.06.2023 to take action against the plaintiff for not returning the documents to the defendants and the police concerned called the plaintiff and issued a receipt vide No. 405/2023 dated 27.06.2023 but the plaintiff and his son approached the police and confessed their high handed illegal activities

before the police and he agreed to return the documents to defendants

without a week. Hence, the police did not take any action against the plaintiff and subsequently the plaintiff filed this false case against the defendants without returning the said blank documents. It is further submitted that after receipt of summons the defendants given another report against the plaintiff, his wife and son on 24.08.2023 before the III-

Town police station and they issued a receipt Vide No. 546 dated 24.0.023 but the police did not take any action against the plaintiff stating that already a civil case is pending. The defendants again submitted that they never borrowed any amount from the plaintiff on 12.01.2021 or that they never executed any promissory note and the suit promissory note is concocted one. The other averments of the plaint were also denied and prayed for the dismissal of the suit.

4.After hearing the parties and basing on the above pleadings and on perusing the documents of both sides the following issues were settled for trial:

Issues:

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1. Whether the suit promissory note dated 12.01.2021 is true, valid and binding on the defendants?

2. Whether the plaintiff is entitled to recover the suit amount as prayed for?

3. To what relief?

5.During the trial, to substantiate his case, the plaintiff examined himself as PW.1 and the scribe of the promissory note dated 12.01.2021 by name Gandimani Gowrinaidu was examined as PW.2. Exhibit A1 is marked. Ex.A1 is the suit promissory note dated 12.01.2021 jointly executed by the defendants 1 and 2 in favour of plaintiff for an amount of

Rs. 5,00,000/-. PW.1 and PW.2 were cross-examined by the defendant counsel. Plaintiff side evidence was closed. To demolish the case of plaintiff, the 1st defendant himself examined as DW.1 and one Rayi Adilaxmi @ Adi was examined as DW.2. Ex.B1 and B2 were marked. Ex.B1 is the complaint original receipt dated 27.06.2023 vide No. 405/2023 issued by III

Town police, Visakhapatnam. Ex.B2 is the complaint original receipt dated 24.08.2023 vide No. 546/2023 issued by III Town police, Visakhapatnam.

DW.1 and DW.2 were cross-examined by plaintiffs’ counsel. The defendant counsel reported no further evidence on defendant side. Hence, the defendant side evidence was closed.

6.Heard both sides. Perused the record carefully. The court has given earnest consideration to the respective submissions of the counsel for the plaintiff as well as defendant.

7.At the out set, it is argued by the plaintiff that the defendants jointly borrowed an amount of Rs.5,00,000/- from the plaintiff on 12.01.2021 by executing a suit promissory note and the plaintiff proved the said fact by 5 discharging his burden by examining PW.2 and also exhibiting Ex.A1 promissory note. The defendants though taken plea of discharge and the

Ex.A1 is concocted one, they failed to prove the same and after receipt of the consideration the defendants got jointly executed the promissory note and subsequently when demanded by the plaintiff the defendants failed to repay the same. Thus the plaintiff is entitled for the decree and prays the

Court to pass decree with interest in favour of the plaintiff.

8.On the other hand the defendant counsel argued that the suit promissory note is concocted one and actual payment taken from the plaintiff is Rs.5,00,000/- and they subsequently repaid the same and the plaintiff withhold the promissory note and created the suit promissory note and to that affect the defendants also gave a police report and they discharged the onus by examining the DW.1 and DW.2 and there are some discrepancies and inconsistencies among the evidence of plaintiff i.e.,

P.Ws.1 and 2 which are crucial and therefore prays the Court to consider the discrepancy elicited during cross examination by defendants and prays to dismiss the suit.

9. Issue No.1:-

As per the testimony of PW.1 and PW.2, the defendant borrowed an amount of Rs. 5,00,000/- from the plaintiff at the office of

PW.2. In the written statement, defendants have taken a plea that they gave a blank promissory note to plaintiff which contains the signatures of the defendants as a security in a previous money transaction that took place in between the plaintiff and defendants and subsequently they discharged the said amount but the plaintiff withhold the said documents and filed this suit 6 against the defendants and they never executed suit promissory note in favour of the plaintiff and no consideration was passed under it. In the cross examination, DW.1 admitted that the plaintiff lend an amount of Rs.

5,00,000/- to him and to that affect DW1 and 2nd defendant jointly executed a promissory note and also the signatures and thumb impression contained on Ex.A1 belongs to himself and 2nd defendant. By examining PW.1 and

PW.2 and by the admission of DW.1, the plaintiff clearly established that defendants jointly executed Ex.A1 promissory note in his favour for an amount of Rs. 5,00,000/-. Hence, the suit promissory note Ex.A1 is supported by consideration. By proving consideration under Ex.A1 the plaintiff discharged his initial burden cast upon him.

10.It is a settled principle of law that once the execution of promissory note is established by the plaintiff the onus shifts on the defendant to establish that the suit promissory note is not supported by consideration or he discharged the suit amount. Where in a suit on a promissory note, the case of the defendant as to circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up in suit notice or in the plaint is not true and rebut the presumption under section 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words ‘until the contrary is proved’ in section 118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential 7 burden is initially placed on the defendant by virtue of Section 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the promissory note, or in the suit notice or in the plaint does not exist and once the presumption is rebutted, the said presumption ‘disappears’. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden.

Thereafter, the presumption under Section 118 does not again come to the plaintiffs’ rescue. Once both parties have adduced evidence, the court has to consider the same and the burden of proof loses all its importance. Let me consider whether the defendants rebutted the presumption in the light of the principles enunciated supra.

11.The defendants admitted the signing a blank promissory note and non-judicial stamp paper but allege it was only for security purpose in respect of previous money transaction, which they claim to have repaid.

This amounts to admission of execution but with a different purpose which shifts the burden to the defendants under section 101 to 103 of the Indian

Evidence Act to prove their plea of repayment and misuse. The defendants relied on Ex.B1 and B2 to support their version. Admittedly Ex.B2 was filed after the institution of the suit, which weakens its evidentiary value.

Moreover, neither Ex.B1 nor Ex. B2 bears the seal or stamp of the police station, which issued it. Which raising the doubt about their genuineness.

Where as the DW.1 testified in his cross examination that Ex.B1 and B2 contains the stamp of the police station which issued it. If the police concerned issued the receipts with stamp of the police station why Ex.B1 8 and B2 does not contain the same, which was remain un explained by the defendants. The timing and lack of authentication make these receipts unreliable.

12.Defendants themselves accepted in their written statement as well as in their evidence that they gave a empty promissory note and signed on it. This admission of defendants is hit by Section 20 of Negotiable

Instruments Act. However, in view of the fact that the Ex.A1 promissory note contains the signature of PW.2 and signatures and thumb impressions of the defendants and it has been mentioned that defendants have jointly received Rs.5,00,000/- and oral evidence stating otherwise cannot be accepted when it has been proved by documentary evidence. Pertinent to mention that the defendants claimed that the plaintiff took their signature in blank promissory note, however, the defendants failed to lead any evidence to prove that in fact their signatures were taken in blank promissory note.

The burden was on the defendants to prove the same, which they failed.

13.The contention of defendants is that, the defendants previously borrowed an amount of Rs.5,00,000/- from the plaintiff and at that time the plaintiff obtained empty promissory note and discharge plea taken by the defendants is not acceptable and not believable. If at all, the defendants borrowed only Rs.5,00,000/- and repaid the same, they would have obtained receipts for payment, they would have torn the promissory note executed by them as well as empty promissory note and Non-Judicial stamp papers. No prudent person will pay money without taking back the promissory note and empty promissory notes and Non-Judicial stamp papers given for security purpose. So, the plea taken by the defendants is not acceptable and not believable. The defendants claim to have repaid the previous borrowed amount, but there is no documentary evidence such as 9 receipts or acknowledgment from the plaintiff. Mere allegation of repayment without supporting evidence, especially when the execution of a signed promissory note is admitted, is insufficient. The witness DW.2 also admitted in her cross examination that no documents were obtained by the DW.1 at the time of repayment of Rs. 5,00,000/- to plaintiff. Moreover, DW.2 is none other other than the daughter of plaintiff and sister of 2nd defendant and the cross examination of DW.2 by the plaintiff counsel reveals that there are no good talking terms between plaintiff and DW.2 as the marriage of DW.2 was performed against to the will of the plaintiff. In such a case, instead of examining a family member the defendant ought to examine other villagers in whose presence the defendant demanded that plaintiff to return of blank promissory note and non-judicial stamp papers but it was not done.

Moreover, while the DW.1 himself claimed that he demanded the plaintiff to return the blank promissory note in the presence of villagers but he testified that he cannot say the names of the villagers in whose presence he demanded the plaintiff. This is another circumstance raise doubt in the evidence of DW.1.

14.The defendants have contended that, even though they demanded the plaintiff to return the empty printed promissory note and

Non-Judicial stamp paper signed by defendants, but the plaintiff promised to return the same, but he has not returned the same. The defendants admittedly not issued any notice for return of said empty promissory note as the said fact was admitted by DW.1 in his cross examination.

15.The evidence adduced by defendants does not establish the contention taken by the defendants regarding borrowing of money of

Rs.5,00,000/- prior to Ex.A1, and the discharge plea taken by them. The evidence of defendants i.e, DW.1 and DW.2 does not rebut the presumption under Section 118 of the Negotiable Instrument Act and the said evidence 10 of DW.1 and DW.2 does not disprove the evidence of plaintiff regarding passing of consideration. So, in view of the evidence of PW.1 and PW.2 and presumption under Section 118 of the Negotiable Instruments Act, I hold that the suit promissory note/Ex.A1 is true, valid and supported by consideration and it is binding on the defendants. Hence, these No.1 is answered in favour of the plaintiff.

16. Issue No. 2:

When the defendants jointly borrowed amount after executing

Ex.A1 promissory note agreeing to repay the same with interest @ 24% per annum whenever demanded by the plaintiff as defendants failed to discharge inspite of demands made by the plaintiff, the plaintiff already proved that the defendants jointly executed promissory note after receipt of consideration of Rs.5,00,000/- on 12.01.2021 the defendants are liable to pay the same and plaintiff is entitled for the recovery of the suit amount.

Hence, issue No.2 is decided in favour of the plaintiff and against the defendants.

17. Issue No. 3:

In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants for an amount of Rs.7,98,000/- (Rupees Seven Lakhs and Ninety Eight Thousand only) with subsequent interest @ 12% per annum from the date of suit to till the date of decree and subsequent interest @ 6% per annum till realization on the

principal amount of Rs.5,00,000/- (Rupees Five Lakhs only).

Typed to my dictation by the Typist of this Court, corrected, signed and pronounced by me in open Court, this the 21 st day of April, 2025.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota 11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW.1: Damarasingi Nageswara Rao D.W.1: Kasimkota Srinu

PW.2: Gandimani Gowrinaidu D.W.2:Rayi Adilaxmi @ Adi

EXHIBITS MARKED

For Plaintiff:

Ex.A1 : Promissory note dated 12.01.2021 jointly executed by the defendants 1 and 2 in favour of plaintiff for an amount of Rs. 5,00,000/-.

For Defendant:

Ex.B1 :Complaint original receipt dated 27.06.2023 vide No. 405/2023 issued by III Town police, Visakhapatnam.

Ex.B2 :Complaint original receipt dated 24.08.2023 vide No. 546/2023 issued by III Town police, Visakhapatnam.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota 12

Date of Presentation: 06-07-2023 Date of Filing: 06-07-2023

IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA.

Present: Ms. S. VANI ,

Civil Judge (Junior Division)

Srungavarapukota

Monday, this the 21st day of April, 2025

O. S. No. 71 of 2023

Between:

Damarasingi Nageswara Rao, S/o late Appanna, Aged about 60 years, Hindu, Resident of Seethampeta, H/o Srungavarapukota Village and Mandal, Vizianagaram District.

….. Plaintiff

And:

1. Kasimkota Srinu, S/o Demudu, Hindu, Aged about 50 years, Resident of Venkata Balaji Residency, Ground Floor, Plot No.102, Sivanandapuram Area, Covered Block No.1, New Resapuvanipalem, Waltair Ward, Greater Visakhapatnam, Municipal Corporation, Visakhapatnam.

2. Kasimkota Eswari, W/o Srinu, Hindu, Aged about 46 years, Resident of Venkata Balaji Residency, Ground Floor, Plot No.102, Sivanandapuram Area, Covered Block No.1, New Resapuvanipalem, Waltair Ward, Greater Visakhapatnam, Municipal Corporation, Visakhapatnam.

….. Defendants

This suit is filed by the plaintiff for recovery of sum of Rs.7,98,000/- (Rupees Seven Lakhs and Ninety Eight Thousand only) with costs and subsequent interest basing upon suit promissory note dated 12.01.2021.

The value of the suit for the purpose of Court fee and jurisdiction is Rs.7,98,000/- and Court fee of Rs.10,426/- (Excess of Rs.100/- paid) is paid under section 20 of Schedule -1 of APCF & S.V. Act, 1956 by way of challan dated 05-07-2023 at SBI, Srungavarapukota.

This suit is coming on 17-04-2025before me for final hearing in the presence of Sri G. S. Demudu, Advocate for the Plaintiff and Sri G. Mahendra, Smt M. Anuradha and Sri P. Santosh Kumar, Advocates for the Defendants and upon perusing the material available on record and this court doth order and 13

D E C R E E

i) that the suit be and same is hereby decreed with costs in favour of plaintiff against the defendant for an amount of Rs.7,98,000/- (Rupees Seven Lakhs and Ninety Eight Thousand only) with subsequent interest at the rate of 12% p.a. from the date of the suit till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realization, on the principal amount of Rs.5,00,000/- (Rupees Five Lakhs only) ; and ii) that the defendant do also pay a sum of Rs. 36,429 /- towards the costs of the suit to the plaintiff.

Given under my hand and seal of this court, dated this the 21st day of April, 2025.

Sd/- S. Vani

Civil Judge(Junior Division)

Srungavarapukota

MEMORANDUM OF COSTS

For Plaintiff: For Defendant:

Stamp on Vakalat : Rs. 3-00 Stamp on plaint : Rs. 10,526-00 Stamp on process : Rs. 150-00 Advocate fee : Rs. 25,640-00 No costs memo is filed Typing charges : Rs. 100-00 -------------------- Cost allowed : Rs. 36,429-00 --------------------

Sd/- S. Vani

Civil Judge (Junior Division)

Srungavarapukota

Note : - The parties shall apply, as soon as possible, for the return of documents which they may wish to preserve, as the record and exhibits are liable for destruction as per the rules of destruction of the records.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS,

SRUNGAVARAPUKOTA.

Present : Ms.S.VANI,

Judicial Magistrate of the First Class,

Srungavarapukota

Thursday, this the 17th day of April, 2024.

C.C.NO.49 OF 2024

Between:

State represented by the Sub-Inspector of Police, Jami Police Station. …Complainant. And:

Nellimukkala Nookaraju, S/o late Appanna, Aged 50 years, Gantavanipalem Village, Munagapaka Mandal, Anakapalli District. Driver of RTC Bus No. AP 31 Z 0414, Mob. No. 738291779. … Accused

This case is coming on 14-04-2025 for final hearing before me in the presence of the Assistant Public Prosecutor for the State and Sri T. V. Ramana Murthy, Advocate for the accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.The State represented by the Sub Inspector of Police, Jami

Police Station laid charge sheet against the accused in Crime No.133/2023 for the offences punishable U/Sec.304-A of Indian Penal Code (for the short ‘I.P.C’).

2. The briefly stated prosecution story is that:

2

On 01-11-2023 at about 09:00 pm while Enyreddi Avinash (hereinafter called as deceased) proceeding on his scooty bearing No. AP 31

Z 0414 and when he reached near Sachivalayam Building at Bheemasingi at the same time the accused/driver of bus bearing No. AP 31 Z 0414 proceeding from Vizianagaram to Kothavalasa in rash and negligent manner without blowing horn and dashed the motor cycle of the deceased, as a result, the deceased fell down on the road and received injuries to his head.

PW.2/Nagavarapu Sattibabu witnessed the accident and lifted the injured and informed the same to PW.1. Immediately, PW.1, Lw.3/Enyreddi Sivasuribabu and Lw.6/Enyreddy Santoshi came to spot and shifted him to Tirumala

Medicover Hospital, Vizianagaram by 108 ambulance. After first aid deceased was referred to Medicover Hospital, Visakhapatnam for better treatment and while undergoing treatment the deceased succumbed to injuries 02-11-2023 at 06:30 am. To that affect PW.1 gave a report.

3. INVESTIGATION AND CHARGE SHEET:

Basing on the report of PW.1, PW.7- S. Eswara Rao, HC-1263,

Jami P.S., registered a case in crime No. 133/2023 under section 337 of I.P.C and investigated into. During the course of investigation, he visited the scene of offence, observed the scene in the presence of mediators Lw.9/Pandranki

Sangeevi and PW.3 and drafted scene observation report and prepared rough sketch of scene and conducted inquest over the dead body of the deceased and sent the dead body of the deceased for postmortem examination and examined PW’s.1, 2, 5 and Lw.2/Enyreddi Kondala Rao, Lw.3/Enyreddi

Sivasuribabu, Lw.4/Chellu Santosh, Lw.5/Kondapau Srinivasareddy and

Lw.6/Enyreddy Santoshi and recorded their detailed statements u/Sec. 161 (3) Cr.P.C.,. On 02.11.2023, a notice under section 41-A of Cr.P.C was issued 3 to accused. LW.14/Dr. N. Srinivasa Reddy, Asst. Professor, AMC,

Visakhapatnam conducted autopsy over the dead body of the deceased and issued postmortem certificate. PW.6/M.V. Inspector, Vizianagaram inspected the crime vehicle RTC bus No. AP 31 Z 0414 and deceased vehicle scooty

No. AP 16 EN 3895 and issued vehicle check report.

On 10-11-2023 the Lw.17/G. Veerababu, SI of Police, Jami PS., verified the investigation done by PW.7 and filed charge sheet before the

Court. Thereby, the accused is liable for punishment under the above Section of law.

4. Cognizance:

The charge sheet was taken on file under Section 304-A of I.P.C against the accused.

5. Compliance of section – 207 Cr.P.C:

In pursuant to the Court’s order, Copies of relevant documents were furnished to him as contemplated under section 207 of the Code of

Criminal Procedure.

6. Examination and charge:

Accused was examined under Section of 251 of Code of Criminal

Procedure and the substance of accusation for the offence under Section 304-A of I.P.C were explained to the accused in his known language, for which he pleaded not guilty and claimed to be tried. Hence the trial.

7. Evidence adduced by prosecution:

4

To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined Seven (7) witnesses, i.e., PWs.1 to 7 and marked Exs.P.1 to P.11 as indicated in the appendix of evidence and after the examination of Seven (7) witnesses, the learned A.P.P. given up the evidence of Lw.2/Enyreddi Kondala Rao, Lw.3/Enyreddi Sivasuribabu, Lw.4/Chellu

Santosh, Lw.5/Kondapau Srinivasareddy, Lw.6/Enyreddy Santoshi,

Lw.9/Pandraki Sanjeevi, Lw.11/Enyreddi Polireddy, Lw.13/Chellu

Ramakrishna, LW.14/Dr. N. Srinivasa Reddy, Asst. Professor, AMC,

Visakhapatnam and Lw.17/G. Veerababu, Sub-Inspector of police, considering the fact that the material witnesses did not support the case of prosecution.

Accordingly, the prosecution evidence was closed.

PW.1 is the de facto Complainant and father of deceased. PW.2 is the eyewitness to the incident. PW.3 is scene observation mediator. PW.4 is mediator for inquest report. PW.5 is conductor of the crime vehicle. PW.6 is

Motor Vehicle Inspector, who inspected the crime vehicle and issued M.V.I.

Report and PW.7 is the Investigating Officer, who registered the case and investigated into.

8. Statement of Defence:

After cessation of the prosecution evidence, the accused is examined under Section 313(1)(b) of the Code of Criminal Procedure. Each and every incriminating circumstance found in the evidence of the prosecution against the accused is separately read over to the accused. The accused denied all such circumstances as false. The accused did not choose to adduce defense evidence.

9. ARGUMENTS:

5

I have heard the rival submissions by Learned Assistant Public

Prosecutor for state and by Learned counsel for accused and gone through the case record in the backdrop of evidences presented before this court by the prosecution side.

10. Arguments advanced by Learned Assistant Public

Prosecutor:

During the course of the arguments, Assistant Public Prosecutor for the State has submitted that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of accused beyond the reasonable doubt.

11. Arguments advanced by Defence Counsel:

Per contra Learned Learned Defence Counsel contended that the prosecution story does not inspire confidence and is full of various infirmity/inconsistencies. It is argued that no other witness supported the case of prosecution including the relatives of deceased and eye witnesses except the interested testimony of investigating officer. It is further argued that due to the rash and negligent driving of the accused this accident occurred and the accused person is caused the death of deceased is also not proved by the prosecution and thereby the accused is entitled for acquittal.

12.Now the point for consideration is:

1) Whether the prosecution the prosecution proved the guilt of the accused for the offence under Section 304-A of the

I.P.C beyond all reasonable doubt?

6

2) What order?

13.My answer to the above points are as under.

Point No – 1:In the Negative

Point No – 2:As per final order for the following

REASONS

14. POINT No.1:-

I have carefully perused the evidence brought on record. The gist of the prosecution case is that on 01-11-2023 at about 09:00 pm while

Enyreddi Avinash (hereinafter called as deceased) proceeding on his scooty bearing No. AP 31 Z 0414 and when he reached near Sachivalayam Building at Bheemasingi at the same time the accused/driver of bus bearing No. AP 31

Z 0414 proceeding from Vizianagaram to Kothavalasa drove the same in rash and negligent manner without blowing horn and dashed the motor cycle of the deceased, as a result, the deceased fell down on the road and received injuries to his head. He was shifted to Medicover Hospital, Visakhapatnam for better treatment and while undergoing treatment the deceased succumbed to injuries 02-11-2023 at 06:30 am and thereby the accused is committed an offence punishable under Section 304-A of I.P.C.

15.As seen from the evidence on record there is no dispute with regard to death of the deceased/Enyreddi Avinash in an accident that took place on 01-11-2023 at about 08:30 P.M., near Sachivalayam Building at

Bheemasingi.

7

16.Now, the main question remains to be considered is whether the accused is responsible for the said accident and accident was caused due to rash and negligent driving of the accused.

17.The present case is based upon the report of the PW.1/Enyreddy

Appalareddi of Jami Mandal he deposed that deceased is his son and at about 1 year ago at about 09:00 pm some unknown person called him and informed that his son met with an accident at Bheemasingi Village.

Immediately, he proceeded to the scene of offence and shifted him to

Medicover Hospital, Vizianagaram. On the next day his son succumbed to injuries. But, he do not know how the accident occurred and driver of the crime vehicle. PW.1 turned hostile to the case of prosecution. The Learned

A.P.P. cross examined the PW.1 but nothing elicited from his mouth. During his cross examination, the PW.1 denied that he stated before the police as per his 161(3) Cr.P.C statement as in Ex.P1. Hence, the evidence of PW.1 not helpful to the case of the prosecution since he turned hostile to the case of the prosecution. Moreover, he is not a direct witness to the incident.

18.PW. 2, who is said to be direct witnesses to the incident but he did not support the case of the prosecution. The Learned Assistant Public

Prosecutor for the state, declared PW.2 as hostile and cross examined him. In the cross-examination of PW.2, he denied that he stated before the police as per his 161(3) Cr.P.C statement as in Ex.P3, but now he deposing false to help the accused. Hence, the evidence of PW.2 also not helpful to the case of the prosecution to prove the guilt of the accused. Even the PW.2, direct witness did not uttered a single word against the accused.

8

19.The PW3, who is scene observation mediator also turned hostile to the case of the prosecution. In his evidence PW.3 testified that the S.Kota police never observed the scene of offence in his presence but the police concerned obtained his signature on scene observation report. Hence, the prosecution failed to prove even the scene observation report.

20.The PW.4, who is grandfather of the deceased deposed that he was present at the time of inquest along with Lw.11/Enyreddi Polireddi and

Lw.12/Ch. Rama Krishna and the inquestdars opined that the deceased died due to accident. Since the death of the deceased is not in dispute, the evidence of PW.4 is no way helpful to the case of the prosecution to prove the guilt of the accused.

21.The evidence of PW.5, who is conductor of crime vehicle and he deposed that at the time of accident he was present at the back of the said bus. Hence, he cannot say how the accident was occurred. The evidence of the PW.5 also not helpful to the case of the prosecution. Since the evidence of

PW.5 is silent about rash and negligent act of the accused.

22.The evidence of PW.6, who is Assistant Motor Vehicle Inspector.

His evidence is formal in nature. So, the evidence of PW.6 is no way helpful to the prosecution to prove the guilt of the accused.

23.Now, there remains the evidence of PW.7 who is the Investigating

Officer. PW.7 deposed about receiving report from PW.1, registering the case and recording of statements of witnesses, visited scene of offence, drawn rough sketch along with scene observation report, issued Section 41(A) 9

Cr.P.C. notice to the accused and obtaining reports and after completion of investigation filing charge sheet against the accused.

24.Since the death of the deceased is not in dispute, the only point left for determination is whether the accident was caused due to rash or negligent driving of crime vehicle by the accused. But in this regard, there is no evidence against the accused. When the prosecution relies only upon the evidence of investigating officer and particularly in cases pertaining to rash or negligent driving the principle of res-ipsa-liquitor comes into the play. Hence, the case of the prosecution was evaluated basing on the investigation done by

PW.7. The evidence of PW.7 is about registration of crime, visit to the scene of offence, examining the witnesses, recording their statements, prepared rough sketch along with scene observation report, forwarded the dead body to the medical officer for conducting autopsy and after completion of investigation laid charge sheet against the accused. This part of the evidence is not sufficient to connect accused with the incident, in view of the hostile evidence of prosecution witnesses and in the light of the above circumstances, even the principle of res-ipsa-liquitor cannot be applicable to this case.

25.In view of the aforesaid discussion it can safely be concluded that the prosecution has failed to bring home the guilt of the accused for the foregoing reasons, there is no material against the accused in proving the ingredients of offence under Section 304-A of Indian Penal Code. Therefore, the accused is entitled for acquittal.

10

24. IN THE RESULT, the accused is found not guilty for the offences punishable under Sections 304-A of Indian Penal Code.Accordingly, the accused is acquitted under Section 255(1) of Code of Criminal Procedure.

The bail bonds of the accused shall remain in force for six months, as required under Section 437-A of Code of Criminal Procedure. Since no property is produced before this Court, there is no order with respect to property.

Typed to my dictation by the Stenographer Grade - III, corrected and

pronounced by me in the open Court on this the 17 th day of April, 2025.

Sd/- S. Vani

Judicial Magistrate of First Class,

Srungavarapukota

Appendix of evidence

Witnesses examined for

Prosecution:- Defence:-

PW.1: Enyreddi Appalareddi -None-

PW.2: Nagavarapu Sattibabu

PW.3: Dhaniyala Pydiraju

PW.4: Koyya appalarami

PW.5: Marthi Simhachalam

PW.6: V. Sravya, Asst. M.V. Inspector, Vizianagaram,

PW.7: S. Eswararao, HC-1263, Jami PS.,

Exhibits marked for

Prosecution:-

Ex.P.1: Report of PW.1 dated 02-11-2023.

Ex.P.2: Statement of PW.1 u/Sec. 161 Cr.P.C.,

Ex.P.3: Statement of PW.2 u/Sec. 161 Cr.P.C., 11

Ex.P.4: Signature of PW.3 on scene observation report dated 02-11-2023.

Ex.P.5: Inquest report dated 02-11-2023.

Ex.P.6: APSRTC Statistical and Ticket Accountant Record.

Ex.P.7: M.V.I Report.

Ex.P.8: Original FIR in Cr.No.133/2023 of Jami PS.,

Ex.P.9: Scene observation report.

Ex.P.10: Rough sketch of scene of offence.

Ex.P.11: Postmortem Certificate.

Defence:-Nil

Material Objects

- Nil -

Sd/- S. Vani

Judicial Magistrate of the First Class,

Srungavarapukota 12

Calendar and Judgment

District : Vizianagaram

Calendar case tried by the Judicial Magistrate of the First Class,

Srungavarapukota.

Date of offence01-11-2023

Date of report or complaint02-11-2023

Date of apprehension of accused02-11-2023 02-11-2023 Date of release on bail Section 41-A Cr.P.C. Notice

Date of commencement of trial27-03-2025

Date of closure of trial14-04-2025

Date of Judgment17-04-2025

No delay, because the case is disposed off within 90 days from Explanation for delay and remarks the date of cognizance i.e., on 27-02-2024.

Calendar and Judgment in C.C.49 OFOn the file of the Judicial 2024Magistrate of the first Class, Srungavarapukota

Complainant: State represented by the Sub-Inspector of Police, Jami Police Station in Cr.No. 133/2023 u/Sec. 304-A of IPC.

Name of the accused, Fat./Hus. name, Aged, Calling, Religion, Village and Mandal

Nellimukkala Nookaraju, S/o late Appanna, Aged 50 years, Gantavanipalem Village, Munagapaka Mandal, Anakapalli District. Driver of RTC Bus No. AP 31 Z 0414, Mob. No. 738291779.

Offence: under Section 304-A of the IPC: Punishment for causing death by rash or negligent act.

13

Finding: Not guilty

Result:The accused is found not guilty for the offences punishable under Sections 304-A of Indian Penal Code.Accordingly, the accused is acquitted under Section 255(1) of Code of Criminal

Procedure. The bail bonds of the accused shall remain in force for six months, as required under Section 437-A of Code of Criminal

Procedure. Since no property is produced before this Court, there is no order with respect to property.

Sd/- S. Vani

Judicial Magistrate of the First Class,

Srungavarapukota

1

IN THE COURT OF THE CIVIL JUDGE (JUNIOR DIVISION),

SRUNGAVARAPUKOTA.

Present: Ms. S. VANI ,

Civil Judge (Junior Division),

Srungavarapukota

Tuesday, this the 22nd day of April, 2025

E.P. No. 33/2024 in L.A.C. No. 216./23 in C.C.No. 7/2023

Between:

Karri Ramesh, S/o Suryanarayana, Hindu, Aged 46 years, R/o Veeranarayanam Village, S.Kota Mandal, Vizianagaram District. ….Decree Holder And :

Tanakala Ramakrishna, S/o Appalanaidu, Hindu, Aged 55 years, Railway Employee, R/o Railway New Colony, Srungavarapukota Village and Mandal, Vizianagaram District. …... Judgment Debtor

This petition is coming on 21-04-2025 for final hearing in the presence of Sri M. Chandra Sekhar Rao and Sri M. Apparao, Advocates for the decree holder and of Sri R. Satyanarayana Advocate for the judgment debtor, and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-

O R D E R

1.This petition is filed under Order XXI Rule 11(2) CPC to issue Order

XXI Rule 37 notice to judgment debtor for recovery of execution petition amount, if the judgment debtor fails to pay the E.P. amount after receiving 37 notice, the decree holder prays that the court may be pleased to issue Order

XXI Rule 38 arrest warrant against the judgment debtor and send him to Civil

Prison to realize the amount of decree in the interest of justice.

2

2.The brief averments of the affidavit filed in support of the execution petition are that: The decree holder obtained an award against the judgment debtor on 09.12.2023, after passing of award he personally demanded the judgment debtor to pay the decretal amount, but the judgment debtor has failed to pay in-spite of giving sufficient time. The judgment debtor is having land an extent of Ac.1-00 cents and a R.C.C. Slabbed building sitauted at

S.Kota village and Mandal and the J.Dr is working Railway department and drawing monthly salalry of Rs.70,000/-. Thus the J.Dr having sufficient means to pay the decretal amount but he is not paying the E.P amount.

Hence, the decree holder prayed the Court to arrest the judgment debtor in civil prison for realization of amount due under the decree.

3.The judgment debtor filed counter praying the court to dismiss the execution petition by denying the averments made in the affidavit filed in support of the execution petition and further added that he has no means as stated by the decree holder and he is not having any landed properties and he is working as a railway employee and drawing monthly salary of RS.

15,726/- and the said salary is also attached in another court attachment and the remaining amount is not sufficient to maintain his family and so at present he is unable to pay the E.P. amount. Hence he prayed to dismiss the petition.

4.During the course of enquiry, the decree holder examined himself as

PW.1 and cross examined by J.Dr Counsel. The J.Dr filed his examination- in-chief as RW.1 but when the matter stood for appearance of J.Dr and for conformation, the J.Dr failed to appear before this court inspite of conditional order. Hence, the J.Dr side evidence is closed.

5.Heard the learned counsel for the decree holder. I have perused the record carefully.

3

6.The decree holder reiterated his contentions during the course of his chief examinations and during the course of his arguments in all material particulars and to avoid repetition, the same is not discussed in detail.

7.Now the points for determination are that:

1. Whether the judgment debtor is liable to be detained in civil prison for realization of decree amount?

2. To what relief?

Point No.1:

8.On perusal of the material placed before this court, it is an admitted fact that the decree holder has obtained the decree in his favour and against the judgment debtor and the judgment debtor has failed to pay the amount due. In order to prove means of judgment debtor in chief examination, PW.1 testified that judgment debtor is having land an extent of Ac.1-00 cents and a

R.C.C. Slabbed building sitauted at S.Kota village and Mandal and the J.Dr is working Railway department and drawing monthly salalry of Rs.70,000/-.

During his cross examination the PW.1 testified that the J.Dr is working in

Railways and drawing monthly salary of Rs. 80,000/- and he denied all the suggestions put by J.Dr counsel but admitted that he cannot produce the any documents to prove that the J.Dr is having landed properties and house. The

D.Hr denied the suggestion that the J.Dr is not having any means to pay the decretal amount.

9.To discard the contention of D.Hr, judgment debtor filed counter denying petition averments and submitted that he has no sufficient means and capacity to discharge the decree debt as contended by the D.Hr. In fact, the J.Dr is working in railways but his salary under court attachment and so 4 the salary of J.Dr is not sufficient to maintain his family. Therefore, the J.Dr.

has no financial capacity to to pay the E.P. amount and prayed the court to dismiss the E.P.

10.From the observations in the evidence on record, though the decree holder did not file any document to show that the judgment debtor is having landed properties and a house, he do not denied that the J.Dr having no means. It is the J.Dr who claims that he has not having any means and his salary is not sufficient to meet his family needs. However he failed to substantiate his defence by producing some bankable proof. Further, by his defence the J.Dr himself admitted that he is a Railway employee and getting salary. From the above evidence, I hold that the judgment debtor is getting sufficient means but neglecting to satisfy the decree amount. At this juncture, one thing I would like to made clear that there is no necessity for the judgment debtor to prove that he has adequate means to discharge the execution petition amount beyond all reasonable doubt. The duty of decree holder ends where he establishes prima-facie that the judgment debtor is having means to answer the debt under the decree. The duty of decree holder in this type of cases will end, when he has placed some material

before the court or able to elicit the same from the facts and circumstances of

the case, indicating that the judgment debtor has possessed of the property or means, thereafter the burden shifts to the judgment debtor to establish as to how he is handicapped from discharging execution petition amount.

11.This court placed reliance on Judicial precedent of the Honourable

Supreme Court decided in Vidyadhar vs. Manikrao and Another reported in AIR 1999 SC 1441 wherein his Lordship observed that “When a party did 5

not enter into the witness box and did not expose himself for cross-

examination, the court can draw adverse inference against such party

to the effect that what he pleaded is incorrect.”

12.In this case, the J.Dr did not step into the witness box in support of his case. Thus, the defence taken by the J.Dr in his counter is considered to be incorrect.

13.Coming to the case in hand, with the positive ocular evidence, PW1 could successfully prove that the judgment debtor has means. In view of such positive evidence the decree holder could successfully proved that the judgment debtor has means.

14.In Konda Subbaiah v. Yedoti Kamalakshaiah reported in 2009 (3)

ALT 465, His Lordship L. Narasimha Reddy held that “once the decree is passed, judgment debtor is under obligation to discharge the decree. The burden of decree holder ends if he places some material indicating that judgment debtor is possessed of property or means to pay the decretal amount. Burden then shifts to judgment debtor to prove how he could not pay the decretal amount”.

15.with the discussion supra, it can safely say that the judgment debtor is having source of income and when decree holder could able to show the prima-facie case about the source of income of decree holder the onus of proving that he did not have any source of income and sufficient means to pay the decretal amount, will shifts to the judgment debtor. But despite shifting onus, the Judgment debtor did not choose to adduced any evidence on his behalf. Mere denial of the means by the judgment debtor is not 6 sufficient to evade decretal obligation of the judgment debtor. He failed to prove that he could not able to pay the amount due under the decree. Which clearly shows that he has means to discharge his liability under this E.P. but he is intentionally avoided the same.

16. 2011 (4) ALT 3 held in between Marepally Narasimha Reddy Vs.

Kancharla Kumara Swamy wherein his Lordship of Honourable High Court of A.P. held at para 24 as follows: “It is found that the judgment debtor has means to honour the decree and has failed to honour the same with bad faith and that the judgment debtor Therefore, is liable to be arrested and committed to the civil prison.”

17.In that context, learned Lordship expressed his views which are germane for consideration in the present context. In the light of above discussion, this Court is satisfied that the judgment debtor has means to satisfy the decree and as such the judgment debtor is liable to be arrested for realization of decree. Further, I feel it is just and proper to give 15 days of time to the judgment debtor to pay the warrant amount, failing which issue arrest warrant Under Rule 38 of C.P.C. The point is answered in favour of decree holder/plaintiff and against the judgment debtor/defendant.

18. Point No.2:-

In the result, this execution petition is allowed by granting fifteen days time to the judgment debtor to pay the warrant amount. Failing which, Issue

Order 21 Rule 38 arrest warrant against judgment debtor on payment of process on 06.05.2025.

Typed by Myself, corrected,signed and pronounced by me in the open Court, this the 22 nd day of April, 2025.

Sd/- S. Vani

Civil Judge (Junior Division),

Srungavarapukota 7

APPENDIX OF EVIDENCE

Witnesses Examined

For Decree Holder:- For Judgment Debtor:-

PW.1: Karri Ramesh RW.1: Tankala Ramakrishna

Exhibits Marked

For Decree Holder:- For Judgment Debtor:

- NIL -

Sd/- S. Vani

Civil Judge (Junior Division),

Srungavarapukota 8

IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA

P resent: Ms. S. VANI ,

Civil Judge(Junior Division),

Srungavarapukota

Thursday, this the 24th day of April, 2025

O. S. No. 28 OF 2025

Between:

State Bank of India, S.Kota Branch, Represented by their Chief Manager. ….Plaintiff

And :

Robba Rama Krishna, S/o Ramu, R/o Balaji Nagar, Near Police Station, S.Kota Village and Mandal, Vizianagaram District.

…Defendant

This suit is instituted by the plaintiff bank against the defendant directing the defendant to pay the suit amount with subsequent interest and costs of the suit andother such reliefs.

This suit coming before me on this day i.e., 24-04-2025 for final hearing in the presence of Sri K.V.S. Rama Raju, Advocate for the Plaintiff and none appeared on behalf of the defendant and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the following:-

O R D E R

The counsel for the plaintiff filed a memo stating that the matter was settled out of Court. Memo recorded. In the result, this suit is dismissed as 'settled out of Court'.

Pronounced by me in open Court, this the 24th day of April,

2025.

Sd/- S. Vani

Civil Judge(Junior Division), Srungavarapukota

APPENDIX OF EVIDENCE

NIL

Sd/- S. Vani

Civil Judge(Junior Division), Srungavarapukota

Date of Presentation: 06-03-2025 Date of filing: 19-03-2025

IN THE COURT OF THE CIVIL JUDGE(JUNIOR DIVISION) AT

SRUNGAVARAPUKOTA

P resent: Ms. S. VANI ,

Civil Judge(Junior Division),

Srungavarapukota

Thursday, this the 24th day of April, 2025

O. S. No. 28 OF 2025

Between:

State Bank of India, S.Kota Branch, Represented by their Chief Manager. ….Plaintiff And :

Robba Rama Krishna, S/o Ramu, R/o Balaji Nagar, Near Police Station, S.Kota Village and Mandal, Vizianagaram District. …Defendant

This suit is instituted by the plaintiff bank against the defendant directing the defendant to pay the suit amount with subsequent interest and costs of the suit and other such reliefs.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.92,274/- and a Court fee of Rs.3,326/- is paid by way of Bank Challan dated 06-03-2025 under Section 20 of Schedule-1 of A.P. Court Fee and Suits Valuation Act, 1956.

This suit coming before me on this day i.e., 24-04-2025 for final hearing in the presence of Sri K.V.S. Rama Raju, Advocate for the Plaintiff and none appeared on behalf of the defendant and upon perusing the material available on record and having stood over for consideration to this day, till this day, this Court doth order and

D E C R E E

i) that the suit be and the same is hereby dismissed as settled out of Court; and ii) that there be no order as to costs.

Given under my hand and seal of the Court, this the 24th day of April, 2025.

Sd/- S. Vani

Civil Judge(Junior Division), Srungavarapukota

MEMORANDUM OF COSTS

NIL

Sd/- S. Vani

Civil Judge(Junior Division), Srungavarapukota