Dr. Sattaru Rajini

1

In the Court of Motor Accidents Claims Tribunal-cum-X-Addl. District &

Sessions Judge, Krishna at Machilipatnam

Present: Dr. Smt. Sattaru Rajani,

CHAIRMAN, M.A.C.T. Cum – X-ADDL. DISTRICT &

Spl. Sessions Judge, Krishna at Machilipatnam

Wednesday, this the 26th day of February, 2020

M.V.O.P. No.399/2016

Between:

Chandana Vijaya Krishna @ Vijay … Petitioner

And

1. Kagitha Konda (Rider of Bike bearing No.AP16CN2049)

2. Chilamkurthi Karthik (Rider of Bike bearing No.AP16DCO171)

3. United Insurance Company Ltd., Rep. By its Branch Manager, Divisional Office-2, Vijayawada, Post Box No.774 # 56-11-4.

4. K.Sri Sai Ramakrishna, (Owner of the 2nd respondent’s Vehicle amended as per the orders in I.A.88/2019 dated 15-03-2019) … Respondents

This petition is coming on 18.2.2020 for final hearing before me in the presence of Sri P.Devendra Kumar, Advocate for petitioner and of Sri Ch.V.Phani Kesava Rao, Advocate for 3rd Respondent; and R1, R2 & R4 remained exparte and the matter having stood over for consideration till this day, this Court delivered the following:

O R D E R

This petition is filed by the petitioner/injured u/secs.163-A of Motor Vehicles

Act, claiming compensation of Rs.3,47,000/- for the injuries sustained in a motor accident.

2) The brief facts of the petitioner’s case are that:

2

i) The petitioner is resident of D.No.15/147-3A, Edepalli, Machilipatnam, he studied upto MCA. He got job at Kupier Soft Solutions Pvt. Ltd, Hyderabad and as per his appointment letter he will join in the said job in the second week of January, 2016 and his salary offered for his job is Rs.9,39,000/- p.a. and his vehicle bearing No.AP 16

CV 5553 was totally damaged in the accident.

ii) While so, on 12.1.2016 at about 7.00 hrs, the petitioner came to his house for

Sankranthi festival at Machilipatnam and on the same day at 15.30 hrs, the petitioner along with his friend went to the SVH Engineering college for his friend’s certificate on his bike bearing No.AP 16 CV 5553. After taking certificate, when the petitioner alone was returning to his house by bike, which was driven by the petitioner by following all the traffic rules and regulations, the 1st respondent who is the driver of the bike bearing

No.AP 16 CN 2049, came in opposite direction in rash and negligent manner, without observing traffic rules and without blowing horn and without giving any signals and dashed front side of the vehicle of the petitioner, as a result, the petitioner fell down along with his bike and in the meanwhile another vehicle bearing No.AP 16 DCO171, driven by the 2nd respondent came from back side of the petitioner with high speed in rash and negligent manner without observing traffic rules and without blowing horn hit and dashed against the petitioner, as a result the petitioner sustained several bodily injuries and his bike was totally damaged in that accident. Immediately the petitioner was shifted to Govt. Hospital, Machilipatnam in 108 Ambulance for medical treatment.

iii) On 12.1.2016 at 16.00 hrs, HC.172 of Chilakalapudi P.S. received phone intimation about the admission of injured in the Govt. Hospital, Bandar, he rushed to the Govt. Hospital and secured the presence of injured and recorded his statement and registered the same as FIR in Cr.No.4/2016 u/sec.338 of IPC against accused. Thus, 3 the accident occurred only due to rash and negligent driving of 1st respondent and also the 2nd respondent.

iv) Later, the petitioner was shifted to Viswa Chakra Orthopedic Hospital,

Machilipatnam and took treatment for 15 days and steel rod was inserted to the right leg of the petitioner during treatment and the petitioner spent huge amounts towards his treatment for medicines and after 15 days, the petitioner used to take medical check up from the hospital and as per the advice of the doctor, after one year inserted rod will be removed, for that the petitioner will incur huge amount for further operation for removing the said rod. His vehicle was totally damaged and he lost his job due to the accident and he sustained heavy loss and suffered mentally due to loss of his recruitment in time.

v) The 1st respondent is the driver of the vehicle bearing No.AP 16 CN 2049, the 2nd respondent is the driver of vehicle bearing No.AP 16 DCO 171, 4th respondent is owner of the said vehicle who insured his vehicle with the 3rd respondent, hence the respondents-1 to 4 are jointly, severally and vicariously liable to pay compensation.

3) Respondents-1, 2 & 4 remained exparte.

4) The 3rd Respondent-insurance company alone filed its counter, denying all the petition averments including the manner in which, the accident took place and also the age and income of the petitioner and injuries sustained in the accident and contended that the petitioner colluded with respondents-1 and 2 and also with the police, created the crime record. The petition is bad for non-joinder of necessary parties. The appointment letter filed by the petitioner is not true and genuine. The compensation claimed by the petitioner is highly excessive. The 2nd respondent was not possessing a valid and effective driving license to drive motor bikes on the date of 4 alleged accident. The owner of the bike knowing fully well, permitted an unlicensed person, to drive his motor cycle and that as per the averments of the petition, due to rash and negligent driving of 1st respondent only the accident took place, by then 2nd respondent drove his bike in a moderate speed by following traffic rules, as such for all the above reasons, the petition is liable to be dismissed.

5)Basing on the above pleadings of both parties, the following Issues are settled:

1. Whether the petitioner sustained injuries due to rash and negligent driving of 1st respondent being the driver of motor cycle bearing No.AP 16 CN 2049 and also due to rash and negligent driver of the 2nd respondent being the driver of motor cycle bearing No.AP 16 DC 0171?

2. Whether the respondents-1 and 2 were not possessing valid and effective driving license to drive the motor cycle as alleged by the 3rd respondent?

3. Whether the petitioner is entitled for compensation from the respondents?

4. Whether the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner?

5. Whether the compensation claimed by the petitioner is excessive?

6. To what relief petitioner is entitled?

Additional Issue dt.19.8.2019

7. Whether the respondents-1 to 4 are jointly and severally liable to pay compensation to the petitioner?

6) During enquiry, on behalf of the petitioner, he himself was examined as PW1 and the doctor who gave treatment to the petitioner, was examined as PW2. The petitioner got marked Exs.A1 to A8 and Ex.X1. On behalf of 3rd respondent, the

Administrate Officer was examined as RW1, but no documents were marked.

7) Heard arguments advanced by both sides.

Issue No.1:

8) Since the petitioner is contending that he sustained injuries due to rash and negligent driving of respondents-1 and 2, being the drivers of motor cycles bearing No.

5 A.P.16 CN 2049 and AP 16 DC 0171, on the other hand, 3rd respondent insurance company of the 2nd respondent’s motor cycle contended that the vehicle driven by 2nd respondent was not involved in the accident and that the petitioner colluded with the respondents-1 and 2 and also with the police and created crime record, as such burden is on the petitioner to prove that he sustained grievous and simple injuries due to rash and negligent driving of respondents-1 and 2 only. In order to prove the same, the petitioner got himself examined as PW1, he got marked Exs.A1 to A8 through him. He also got summoned Dr. C.Sai Prasad, who provided treatment to him and examined him as PW2 and got summoned the case sheet, which was marked as Ex.X1.

9) Ex.A1 is the certified copy of charge sheet under sec.338 IPC along with certified copy of FIR filed in Cr.No.4/2016 of Chilakalapudi P.S. before II Addl. Judl. I

Class Magistrate, Machilipatnam against the respondents-1 and 2 – Kagitha Konda,

Chilamkurthi Karthik, showing them as Accused-1 and 2 alleging that, due to rash and negligent driving of accused-1 and 2 (who are respondents-1 and 2 herein) only, the accident took place and petitioner sustained grievous injuries on his right leg, right temporal region, abrasion on right hand and other body pains.

10) Ex.A2 is the certified copy of wound certificate of PW1-Ch.Vijaya Krishan @

Vijay issued by Causality Medical Officer, District Hospital, Machilipatnam. It goes to show that PW1 sustained injuries in a road traffic accident at about 2.30 p.m. on 12.1.2016 and that the Medical Officer examined him on the same day at about 3.55 p.m. and found the following injuries:

i) inability to move / raise right leg ii) 3 abrasions of measuring 2 c.m. on right leg region 6 iii) abrasion on 3 c.m. on right temporal region and MLC X-ray shows there is a fracture to the both bones of right leg.

He opined that the injury No.1 is grievous in nature and other injuries are simple in nature might have been caused due to road traffic accident and within six hours prior to his examination. Thus, as per Ex.A2, PW1 sustained fracture of both bones of right leg, which are grievous in nature and other injuries are simple in nature.

11) Ex.A3 is the appointment letter of PW1 issued by one Kupier Soft Solutions

Pvt. Ltd. dt.12.1.2016 appointing the petitioner i.e., offering the petitioner, the position of Sr Test Engineer on salary of Rs.9,39,000/- p.a. and the said offering is valid till 18th

January, 2016 and further mentioned that the petitioner is expected to join the organization, on or before 18th January, 2016.

12) Ex.A4 to A6 are the 3 x-rays dt.17.1.2016, 2.2.2016 and 26.2.2016 showing the fracture of both bones of right leg.

13) Ex.A7 is the bunch of medical bills issued by Sri Viswa Chakra Orthopedic

Hospital, Machilipatnam for a sum of Rs.66,536/ including physiotherapy treatment.

Ex.A8 is the bills (3 in number) dt.2.2.2016 issued by Arif Mechanical works for effecting repairs to the motor cycle bearing No.AP 16 CB 5553 issued for Rs.3,770/-,

Rs.9.820/-, Rs.1,760/-. Ex.A8 goes to show that the petitioner effected repairs to his motor cycle bearing No. AP 16 CB 5553.

14) Ex.X1 is the case sheet of PW1 produced by PW2, the doctor who provided treatment to PW1 in Viswa Chakra Orthopedic Hospital, Machilipatnam, containing the details of treatment on different dates and medicines prescribed to the petitioner.

15) Coming to the oral evidence of PW1, his chief examination by way of affidavit is nothing but repetition of petition averments. In brief, it goes to show that on the date 7 of accident i.e., on 12.1.2016 at about 7.00 a.m. he came to his house at Machilipatnam for Sankranthi Festival and on the same day at about 15.30 hrs i.e., 3.30 p.m., he along with his friend went to S.V.H. Ploytechnic college on his bike bearing No.AP 16 CB 5553. After taking certificate of his friend, he was going to his house on his bike by following the traffic rules and regulations. At that time, the 1st respondent drove his bike bearing No.AP 16 CN 2049, came in opposite direction with rash and negligent manner, without observing the traffic rules and without blowing horn and without giving signals, he dashed front side of the vehicle driven by PW1, as a result PW1 fell down with his vehicle. In the mean time, another vehicle bearing No.AP 16 DC 0171 driven by 2nd respondent, who came from his back side with high speed, in rash and negligent manner, without observing traffic rules, without blowing horn dashed against the petitioner, as a result he sustained severe bodily injuries and his vehicle was totally damaged. Immediately on receiving phone call he was shifted to Govt. Hospital,

Machilipatnam by 108 Ambulance for treatment. Thereafter, his statement was recorded by the police at Govt. Hospital on receipt of hospital intimation, on that a case was registered in Cr.No.4/2016 u/sec.338 IPC, later he was shifted to Viswachakra

Orthopedic Hospital, Machilipatnam, he was treated for 15 days, steel rod was inserted to his right leg during treatment and after discharging from hospital, he used to take medical check up as per the advice of the doctor and as per the advice of the doctor, the rod inserted has to be removed after one year, for that he has to incur huge expenses.

16) He says as accident took place due to rash and negligent driving of respondents- 1 and 2 and 2nd respondent insured his vehicle with 3rd respondent, hence initially he filed petition against respondents-1 to 3 claiming compensation. Thereafter he filed

additional chief affidavit that 4th respondent is the owner of the vehicle bearing No.AP

8 16 DC0171, which was driven by 2nd respondent, as such 4th respondent was added as a party, who insured the vehicle with 3rd respondent, hence all the respondents are jointly and severally liable to pay compensation to the petitioner.

17) During cross examination, he deposed that the motor cycle on which he was going at the time of accident, is belonging to his father. He admitted that he has not filed his driving license and certificate of registration of the motor cycle along with the insurance policy by the date of accident, before the court pertaining to the vehicle driven by him. He also admitted that he has not filed the driving license of 1st respondent or the insurance policy of the said vehicle and also driving license of 2nd respondent at the time of accident. As per his evidence, the 1st respondent is owner cum driver of the vehicle AP 16 CN 2049. He admitted that he has shown the insurance company of the said vehicle, as the 3rd respondent in this case. Except suggestions nothing was elicited from PW1, to discredit his testimony.

18) Nothing was elicited from PW1 by 3rd respondent to discredit his testimony.

It is pertinent to note that PW1 was cross examined by counsel for R3 only, as other respondents remained exparte.

19) Coming to the evidence of PW2-Dr. C.Sai Prasad. He deposed that he is an

Orthopedic Surgeon and running a private nursing home, under the name and style as

Viswachakra Orthopedic Hospital at Machilipatnam since 1998.

20) PW2 deposed that on 12.1.2016 around 6.00 p.m. he examined PW1-

Ch.Vijaya Krishna, who was admitted in his hospital with an injury to his right leg, alleged to have been sustained due to slip and fall from two wheeler and X-ray of right leg shows fracture of both bones of right leg and on the same day he conducted operation to right tibia bone, post operatively, the patient recovered well, hence on 9 18.1.2016 the patient was discharged from their hospital. PW2 produced case sheet of

PW1, which is marked as Ex.X1. PW2 deposed that for removal of implants by conducting another surgery, the approximate expenditure would be Rs.25,000/- and has to take bed rest for one week to 10 days, after 2nd surgery and it would take minimum three months for recovery from the injuries.

21) He admitted that Ex.A7 medical bills are issued in connection with the treatment given to the patient in their hospital, apart from physiotherapy treatment and also admitted that Exs.A4 to A6 are the x-rays taken at the time of providing treatment to the patient post operatively.

22) During cross examination, he deposed that for the last two years only, treatment is being given under Arogya Sree scheme or NTR Vydya seva, which is not applicable to their hospital earlier. He admitted that the patient can get treatment under

Arogya sree scheme in any other hospital and also admitted that the injuries sustained by PW1 are curable injuries. Except that nothing was elicited from PW2, to discredit his testimony.

23) Coming to the evidence of RW1, who is an Administrative Officer of 3rd respondent insurance company, his chief examination is nothing but repetition of contentions raised by them in the counter.

24) During cross examination, he admitted that as per charge sheet respondents- 1 and 2 herein were arrayed as accused in C.C.No.71/2016 on the file of II Addl. Judl.

Magistrate of I Class, Machilipatnam in Cr.No.4/2016 of Challapalli P.S. He admitted

that 4th respondent is the owner of the vehicle bearing No.AP 16 DC 0171, which was driven by 2nd respondent at the time of accident and also admitted that the vehicle was insured with their insurance company. But he is not the proper person to speak about 10 the manner in which the accident took place, as the respondents-1 and 2 who are drivers of the vehicles involved in the accident, are the proper persons to speak about the manner in which the accident took place, but they remained exparte. Hence the evidence of PW1 coupled with the documents produced by PW1. There is no other evidence to show that there was no negligence on the part of respondents-1 and 2 for causing grievous and simple injuries to PW1.

25) On the other hand, the evidence of Pws.1 and 2 coupled with Ex.A1, A2, A4 to

A8 and X1 clearly established that PW1 sustained grievous and simple injuries in road traffic accident due to the rash and negligent driving of respondents-1 and 2, when they dashed against PW1.

Hence, the Issue No.1 is answered accordingly.

Issue No.2:

26)The 3rd respondent contended that the 2nd respondent was not having valid driving license as on the date of accident, while admitting during cross examination of

RW1 that the insurance policy of the vehicle bearing No.AP 16 DC 0171, belonged to 4th respondent, which was driven by the 2nd respondent at the time of accident, was in force and got examined its Administrative Officer as RW1, who admitted in his cross examination that insurance policy pertaining to crime vehicle was in force by the date of accident.

27) He stated in chief examination that, 1st respondent was not possessing any driving license to drive motor cycle and 2nd respondent also was not possessing a valid and effective driving license to drive the motor bikes and knowing fully well, the owner of the vehicle permitted an unlicensed driver to drive his motor bike, as such 3rd respondent is not liable to pay any compensation.

11

28) The respondents-1 and 2 who are the drivers of the vehicles involved in the accident and 4th respondent who is the owner of the vehicle bearing No.AP 16 DC 0171, remained exparte. The 3rd respondent has not taken any steps to summon the RTA authorities to prove that the respondents-1 and 2 were not possessing any driving license to drive motor cycles. The burden is on the insurance company, to prove that the terms and conditions of the policy are violated. But failed to prove the same, as such it can be safely held that the respondents-1 and 2 are possessing driving license to drive the motor cycles.

Hence, Issue No.2 is answered accordingly.

Issues No.3 to 6:

29) Since the petitioner established that he sustained injuries due to rash and negligent driving of respondents 1 and 2 being the drivers of motor cycles bearing

Nos.AP 16 CN 2049 and AP 16 DC 0171 respectively and insurance policy of the vehicle belonging to 4th respondent, which was driven by the 2nd respondent at the time of accident was in force and as per the augments of the counsel for petitioner, the 1st respondent is the owner cum driver of the vehicle and the said vehicle was not insured by the date of accident, as it is established that drivers of both the vehicles are responsible for the accident, the 1st respondent initially dashed against the petitioner, when he fell on road, the 2nd respondent came with high speed in rash and negligent manner on his vehicle and dashed against the petitioner. If really he was driving slowly in cautious manner, he would have averted the accident, hence contributory negligence can be fastened to both the vehicles equally and hence respondents 1 to 4 are jointly and severally liable to pay compensation i.e., 1st respondent is liable to pay 50% percent of 12 compensation to be assessed by this court and respondents 1 to 4 are liable to pay remaining 50% percent of compensation jointly and severally to the petitioner.

Coming to the quantum of compensation:

30) The petitioner is claiming compensation of Rs.3,47,000/- in total under different heads.

31) Towards transportation to the hospital, the petitioner is claiming Rs.5000/- that after the accident he was initially shifted to Govt. Hospital, Machilipatnam, from there he was shifted to Viswachakra Hospital at Machilipatnam. He deposed that after discharging from that Hospital, he took treatment as outpatient in the same Hospital.

The evidence of PW2 Dr. C. Sai Prasad coupled with the wound certificate and x-rays with the medical bills and Ex.X1 case sheet of PW1 supports the contention of PW1, hence in view of the facts and circumstances of the case, it would be just and reasonable to award a sum of Rs.5000/- towards transportation to the hospital.

32) The petitioner is claiming Rs.25,000/- towards extra nourishment. Considering the injuries stated above, sustained by the petitioner in the accident, which require special nourishment for speedy recovery, hence it would be just and reasonable to award a sum of Rs.10,000/- towards extra nourishment.

33) The petitioner has claimed a sum of Rs.8000/- towards damages to clothing and articles and Rs.19,000/- towards effecting repairs to the motor bike, which was damaged in the accident. He produced Ex.A8-bills for the same. Though he has not examined any person to prove that his vehicle was repaired after the accident, in view of facts and circumstances of the case, considering the bills produced by him, it would be just and reasonable to award a sum of Rs.2000/- towards damages to clothing and

Rs.10,000/- towards damages to the motor cycle bearing No.AP 16 CV 5553.

13

34) The petitioner is claiming a sum of Rs.85,000/- towards medical expenses.

The petitioner produced the medical bills worth Rs.66,536/- along with prescriptions and also got summoned Ex.X1 case sheet and also filed three x-rays.

35) PW2 who is the Orthopedic surgeon provided treatment to PW1 stated in his evidence that Ex.A7 medical bills are issued in connection with the treatment given to the patient in their hospital apart from physiotherapy treatment. He also deposed that

Ex.A4 to A6 are the x-rays taken at the time of providing treatment to the patient post operatively. He also deposed that at the time of surgery, a steel rod was applied to right tibia bone and for removal of implants by conducting another surgery, the appropriate expenditure would be Rs.25,000/-. Taking into consideration, the injury sustained by the petitioner and the treatment already provided in the hospital of PW2, for which medical bills worth Rs.66,536/- are produced and future surgery for removal of implants, it would be just and reasonable to award a sum of Rs.85,000/- towards medical expenses.

36) Towards compensation for pain and suffering, mental agony, loss of earning, the petitioner is claiming Rs.2,00,000/- in total.

37) According to the petitioner, he studied MCA and he got job in Kupier Soft

Solutions Pvt. Ltd., Hyderabad and as per his Ex.A3 appointment letter, he has to join in the said job in the 2nd week of January, 2016 and he was offered a sum of

Rs.9,39,000/- per annum towards his salary. But due to the accident, he could not join in that job, as he sustained fracture to his leg. Hence, he sustained loss. The evidence of

PW2 Dr. C.Sai Prasad clearly goes to show that the petitioner sustained fractures of both bones in right leg, surgery was conducted, steel rod was applied to right tibia bone and it will take minimum three months for recovery from the injuries. He says another 14 surgery is required for removal of implants, at that time he has to take bed rest for one week or ten days. In view of this evidence of PWs.1 and 2 considering Ex.P3 appointment letter and education qualifications of PW1 that he studied MCA, hence due to the accident and the fracture to the leg, the petitioner might have taken bed rest without going for any job for about three to four months and hence he might have suffered not only physically, but also mentally, the same cannot be estimated in terms of money, hence considering all these facts, I am of the opinion that it would be just and reasonable to award a sum of Rs.1,50,000/- towards pain and suffering, mental agony and loss of earnings.

38) Thus, in view of the reasons stated above, the entitlement of the petitioner for compensation under various heads is calculated as follows:

1. Transportation to hospitals 5000-00

2. Extra nourishment 10,000-00

3. Damages to clothing 2000-00

4. Damages to motor bike 10,000-00 5.Medical expenses 85,000-00

6. Compensation for pain and Suffering, mental agony and loss of earnings 1,50,000-00 ---------------------------- Total: Rs.2,62,000-00 -----------------------------

39) As per Section 171 of M.V. Act, the claimant is entitled to interest from the date of claim petition only. It is settled law, that the rate of interest prevailing in the national banks shall be taken into consideration. Therefore, on an average 7.5% of interest per annum can be taken as appropriate in the present case. As such, the petitioner is entitled to interest at 7.5% per annum on the awarded amount of compensation from the date of petition till the date of realization.

15

40) In view of the afore said discussion, and the findings given by me, on all the above issues, the petitioner is entitled for compensation of Rs.2,62,000/- (Rupees two lakhs and sixty two thousand only) under the above heads. The respondents-1 to 4 are jointly and severally liable to pay the said compensation amount to the petitioner i.e., 1st respondent is liable to pay 50% percent of the compensation assessed by this court supra and respondents 1 to 3 are liable to pay remaining 50% percent of compensation jointly and severally to the petitioner.

Hence, Issues No.3 to 6 are answered accordingly.

41) In the result, the petition is allowed in part with proportionate costs against

Respondents-1 to 4, by awarding compensation of Rs.2,62,000/- (Rupees two lakhs and sixty two thousand only) with interest at 7.5% per annum from the date of filing of the petition to till the date of realization ii) The 1st respondent is liable to pay 50% percent of the compensation assessed by this court supra. The 1st respondent is directed to deposit the said 50% of the compensation amount awarded before this court, within two months from the date of this order.

iii) The respondents 2 to 4 are liable to pay remaining 50% percent of compensation jointly and severally to the petitioner. The 3rd respondent being insurer of the vehicle belonging to 4th respondent, which was driven by 2nd respondent, is directed to deposit the said amount before this court, within two months from the date of this order.

iv) On such deposit, the petitioner is entitled to withdraw a sum of Rs.1,62,000/- (Rupees one lakh and sixty two thousand only) with accrued interest and costs and 16 remaining amount of Rs.1,00,000/- (Rupees one lakh only) shall be kept in fixed deposit in any Nationalized Bank for a period of Two years.

v) The rest of the claim is hereby dismissed.

vi) The Advocate Fee is fixed at Rs. 5000/- (Rupees five thousand only).

Typed to dictation to the Stenographer on computer, corrected and pronounced by me in open court, this the 26th day of February, 2020.

Motor Accidents Claims Tribunal- cum-X Addl. District Judge,

Krishna, Machilipatnam

APPENDIX OF EVIDENCE

Witnesses examined on behalf of petitioner

P.W.1: Chandana Vijaya Krishna @ Vijay P.W.2: Dr. C.Sai Prasad

Witnesses examined on behalf of respondents

R.W.1: S.Chinna Srikalyan

Exhibits marked on behalf of petitioner

Ex.A1: Certified copy of charge sheet filed in Cr.No.4/2016 of Chilakalapudi P.S., u/sec.338 IPC

Ex.A2: Certified copy of wound certificate issued by Govt. Hospital, Machilipatnam, dt.25.1.2016

Ex.A3: Appointment letter dt.12.1.2016, appointing PW1 as Senior Test Engineer in Kupier Soft Solutions Private Ltd.

Ex.A4: X-ray dt.17-01-2016

Ex.A5: X-ray dt.02-02-2016

Ex.A6: X-ray dt.26-02-2016

Ex.A7: Bunch of medical bills issued by Sri Viswa Chakra Orthopedic Hospital, Machilipatnam including bill issued for physiotherapy for total sum of Rs.66,536/- 17 Ex.A8: Bills issued for effecting repairs to PW1’s motor cycle bearing No.AP 16 CB 5553 (3 in number)

Ex.X1: Case sheet

Exhibits marked on behalf of respondents -None-

X-A.D.J., M.T.M.

1

IN THE COURT OF X-ADDL. DISTRICT & SESSIONS JUDGE:

KRISHNA: AT MACHILIPATNAM

Present: Dr. Smt. Sattaru Rajani.,

X-ADDL. DISTRICT & SPL. SESSIONS JUDGE

KRISHNA AT MACHILIPATNAM

Thursday, this the 20th day of February, 2020

APPEAL SUIT NO.66/2018

IN

O.S.No.198/2016 on the file of

Additional Senior Civil Judge’s Court, Machilipatnam.

Between:

Yeruva Hema Sri … Appellant/ Defendant.

AND

Gandam Naga Raju … Respondent/ Plaintiff.

ON APPEAL AGAINST THE DECREE AND JUDGMENT DATED

07.02.2018 IN O.S.NO.198/2016 PASSED BY THE ADDITIONAL

SENIOR CIVIL JUDGE’S COURT AT MACHILIPATNAM MADE IN:

Between:

Gandam Naga Raju, S/o. Satyanarayana, Hindu, 36 years, Business, R/o.D.No.2-110, Munjuluru Village, Bantumilli Mandal, Krishna District. … Plaintiff.

AND

Yeruva Hema Sri, W/o. Srinivasa Rao, Hindu, 34 years, Business, R/o.D.No.1/194, Kalekhanpet, Machilipatnam Town, Krishna District. … Defendant.

The appeal is filed on 03.04.2018 by the appellant/defendant under Sec.96 & Order-41, Rule-1 of Civil Procedure Code, praying to allow the appeal with costs by setting aside the decree and judgment dated 07.02.2018 passed in O.S.No.198/2016 on the file of the Additional Senior Civil Judge’s Court, Machilipatnam.

2

The appeal is coming on 17.02.2020 before me for final hearing in the presence of Sri S. Nagadhar Nadh, Advocate for Appellant/defendant and of Sri G.V. Ramana, Advocate for Respondent/plaintiff and upon perusing the grounds of appeal and other material papers on record and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This appeal was preferred by the defendant in O.S.198/2016 on the file of Additional Senior Civil Judge’s Court, Machilipatanam, to set aside the decree and judgment dated 07.02.2018 and to dismiss the suit by allowing the appeal.

2) The parties herein after be referred to as arrayed in the trail Court, as plaintiff and defendant.

3) The brief facts of the plaintiff case are that:

The defendant borrowed a sum of Rs.3,00,000/- from the plaintiff for her manifest benefits and imperative needs i.e., for her family expenses and to develop for her business, agreeing to repay the said sum together with interest at 24% per annum and executed a promissory note on even date, in favour of the plaintiff, in the presence of scribe and attestors. Thereafter, in spite of repeated demands made by the plaintiff, the defendant failed to discharge the debt due under the said promissory note together with interest to the plaintiff and postponed the same on one pretext or the other. Finally, when the plaintiff reliably came to know that the defendant is making hectic efforts to alienate the property in hurried and secret manner, with a dishonest intention to escape from her liabilities including the amount due to the plaintiff under the suit promissory note. As such the plaintiff has no sufficient time to issue notice 3

before filing the suit and filed the suit for recovery of the amount due under the

suit promissory note with contractual rate of interest as the defendant is not entitled to claim benefits under any debt relief laws. Hence the suit.

(4)The defendant filed her written statement denying all the plaint averments including the transaction under the suit promissory note, dated 24-01-2015. She contended that she never borrowed any such amount from the plaintiff and the suit promissory note is a rank forged one.

(5)The defendant further contended that she is native of Pedana.

Previously she stayed in the house of parents of plaintiff in D.No.3-206-8 about 7 or 8 years prior to this suit. At that time, the plaintiff used to maintain private chits. The husband of defendant joined as one of the members of the chit for

Rs.1,50,000/-. He was declared as successful bidder in the month of August, 2013. Thereafter the plaintiff after deducting the bid amount and chit commission, paid a sum of Rs.90,000/- to the husband of defendant. At the time of payment of chit amount, the plaintiff obtained the signatures and her husband in the year 2013 towards acknowledgment of payment in LIC diary.

Later due to business crisis, the husband of defendant became due a sum of

Rs.30,000/- to the plaintiff.

(6)She further contended that taking advantage of signatures of the defendant and her husband on LIC diary, the plaintiff lodged a complaint with

SHO of Inuguduru Police Station in the month of October, 2016. After thorough enquiry, the police advised the plaintiff that it is a time barred debt.

As such the plaintiff developed grudge against the defendant and created the 4 suit promissory note with her close henchmen. The defendant is completely stranger to the attestors and scribe of suit promissory note.

(7)She further contended that she came from poor family. By the date of the suit promissory note, she was not having any movable or immovable properties. Later when the defendant succeeded her father’s property in an extent of Ac.0-50 cents in the month of November, 2016, the plaintiff created suit promissory note and filed the suit to harass the defendant and obtained exparte orders of attachment without issuing any legal notice. Hence, there is no cause of action for filing the suit.

(8)She further contended that she reserves her right to send the suit promissory note to the hand writing expert, Government printing press, Nasik to prove the forgery and the date of printing of Revenue stamp and release the same into the market. Hence for all above reasons, the suit is liable to be dismissed with exemplary costs.

(9) Basing on the strength of the above pleadings, the following issues were settled by the trial Court, dated 21-06-2017.

(1) Whether the promissory note for an amount of Rs.3,00,000/- dated

24-01-2016 is true, valid and binding on the defendant?

(2) To what relief?

(10) During trial, on behalf of the plaintiff, PWs 1 & 2 were examined and Ex.A1 was marked. On behalf of the defendant, DWs1 and 2 were examined no documentary evidence was adduced by the defendant.

(11) After hearing arguments advanced by both sides and considering the 5 oral and documentary evidence, the learned trial judge decreed the suit in favour of plaintiff with costs, directing the defendant to pay a sum of

Rs.4,31,000/- with interest @ 12% per annum, from the date of the suit till the date of decree and future interest at the rate of 6% per annum, on the principal amount of Rs.3,00,000/- till the date of realization.

(12) Having aggrieved by the said decree and judgment, the defendant preferred the present appeal with the following grounds:

(i) The judgment of the trail court is contrary to law, weight of evidence and probabilities of the case and the same is not maintainable and is liable to be set aside.

(ii) The trial court ought to have dismissed the suit instead of decreeing the same, thereby, rendered great injustice to the defendant. The trail court did not frame the issues properly as per the respective pleadings.

(iii) The trail court ought to have allowed the petition filed by the defendant under Sec.45 of Evidence Act, to send the suit promissory note to the hand writing expert and failed to give an opportunity to the defendant to prove her case.

(iv) The trail court ought to have dismissed the suit basing on the evidence of DWs 1 & 2 by observing that the plaintiff failed to prove the payment of consideration under Ex.A1.

(v) The trail court ought to have seen that there is no prior notice issued by the plaintiff before filing the suit.

(vi) The trail court ought to have observed that the plaintiff has no 6 financial capacity to advance huge amount of Rs.3,00,000/- under Ex.A1 promissory note and the evidence of PWs 1 and 2 is contradictory, un-corroborative and not trust worthy.

(vii)The trail court ought to have dismissed the suit for non examination of all the witnesses of Ex.A1 and failed to understand the probabilities of the case.

(13)Hence, for the above said grounds and the grounds to be urged at the time of hearing of the appeal, the decree and judgment of the trail court is liable to be set aside, by allowing the appeal with costs throughout.

(14) Heard arguments advanced by both sides.

Now the points that arose for consideration are that:

(i) Whether the suit promissory note is true, valid and duly executed by the defendant and supported by consideration?

(ii)Whether the suit promissory note is a rank forged one?

(iii) Whether the suit promissory note was brought into existence in

the circumstances, as pleaded by the defendant in her written statement?

(iv) Whether there are any grounds to set aside the judgment of the trail court?

(v) To what relief, the appellant is entitled?

(15)Since the discussion in all the above said points is intertwined, hence to avoid repeatation and for the sake of convenience, I am discussing all the points together here under.

(16)Since the plaintiff is claiming that the suit promissory note was duly executed by the defendant at the time of borrowing a sum of Rs.3,00,000/- 7 from him on 24-01-2015, agreeing to repay the same with interest at the rate of 24% per annum, in the presence of attestors and scribe for the purpose of family expenses and to develop business, on the other hand, the defendant is claiming that she has not borrowed any such amount from the plaintiff and the suit promissory note is a rank forged one and the same was brought into existence in connection with liability in chit transaction, hence in view of the above pleadings of both parties, the initial burden is on the plaintiff to prove that the suit promissory note was duly executed by the defendant and the same is supported by consideration. Unless the same is established the plaintiff is not entitled to draw a presumption under Sec.118 of Negotiable Instruments Act.

If the plaintiff is able to establish that the suit promissory note was duly executed by the defendant, the plaintiff is entitled to draw a presumption under

Sec.118 of Negotiable Instruments Act that the suit promissory note was drawn for consideration, until the contrary is proved by the defendant by adducing rebuttal evidence.

(17)In order to discharge the initial burden caste upon him, the plaintiff got himself examined as PW1 and got examined one B. Nagaraju who is the first attestor of suit promissory note as PW2 and got marked Ex.A1 suit promissory note.

(18)As seen from Ex.A1 it is a Telugu printed promissory note form and blanks were filled up with pen. It appears from Ex.A1 that the defendant borrowed a sum of Rs.3,00,000/- from the plaintiff on 24-01-2015, agreeing to repay the same with interest @ 24% per annum with yearly compound rests, in 8 the presence of the attestors namely B. Nagaraju and K. Naresh and scribed by

P. Suribabu. The signature of executant (Defendant) is in Telugu with the initial ‘Y’ in English.

(19)The evidence affidavit of PW1 is nothing but repeatation of plaint averments. In brief her evidence goes to show that, the defendant borrowed a sum of Rs.3,00,000/- from the plaintiff on 24-01-2015 agreeing to repay the same with interest @ 24% p.a. with yearly compound rests and executed a promissory note in favour of plaintiff on the even date and failed to repay the same subsequently inspite of repeated demands made by the plaintiff and when the defendant was making hectic efforts to alienate the property to avoid the debt due to the plaintiff. Hence, the plaintiff filed the suit.

(20)During cross examination, PW1 admitted that he resided as a tenant in the house of mother of defendant from 2010 to 2012 and from 2014 to 2015. He says he lent an amount of Rs.3,00,000/- to the defendant at

Manjuluru Village. Regarding his capacity he deposed that he is dong paddy business and his monthly income is Rs.25,000/- and annual income is nearly

Rs.3,00,000/-. He says he got Rs.10,00,000/- in his house from his paddy business during that time.

(21)Regarding chit transaction, PW1 deposed that he never did chit business, but admitted that he gave report against defendant to Inuguduru Police in the year 2015 or 2016. He denied the suggestion that he gave report to the police in connection with chit transaction. PW1 denied the suggestions that the defendant and her husband made endorsement in LIC dairy, acknowledging the 9 receipt of chit amount of Rs.90,000/-, after deducting bid amount and later an amount of Rs.30,000/- was due by the defendant, as such he forged the signature of the defendant, on seeing her signature in the dairy and that the signature on Ex.A1 is not belonged to the defendant. Except that, nothing was elicited from PW1 to discredit his testimony.

(22)Coming to the evidence of PW2, who is the first attestor of Ex.A1 promissory note, his evidence affidavit runs in similar lines as that of the evidence of PW1. His evidence goes to show that in his presence the defendant borrowed a sum of Rs.3,00,000/- from the plaintiff on 24.01-2015 and executed Ex.A1 promissory note, at that time he signed as first attestor and

K. Naresh signed as second attestor and one P. Suribabu is the scribe of the suit promissory note.

(23)During cross examination, a suggestion was put to him that his signature was obtained on Ex.A1 before filing the suit and suit promissory note was forged and fabricated, subsequent to the chit transaction. He denied the said suggestion. He admitted that at request of plaintiff he came to court to depose evidence. But that is not sufficient to disbelieve the evidence of PW2.

(24)Thus, the evidence of PWs 1 & 2 is consistent and is in consonance with the contents of Ex.A1 promissory note. Nothing was elicited from PWs 1 & 2 to discredit their testimony. I find no reason to disbelieve their evidence as their evidence is cogent and convincing. Their evidence clearly established the execution of suit promissory note in favour of plaintiff by the defendant. Simply because no prior notice was issued to the defendant before 10 filing suit, that does not mean that the suit transaction is not correct.

(25)When the plaintiff is able to establish the execution of suit promissory note, he is entitled to draw a presumption under Sec.118 of

Negotiable Instruments Act that the suit promissory note is drawn for consideration. Now the burden is on the defendant to prove that the suit promissory note is not supported by consideration and the same is forged and fabricated one and it was brought into existence, in the circumstances as pleaded by her in her written statement, by adducing cogent and convincing evidence.

(26)To discharge the burden caste upon the defendant, the defendant got herself examined as DW1, she got examined one Odugu Ravindra Babu, who is a third party to the suit as DW2. The defendant has not adduced any documentary evidence.

(27)DW1 in her evidence affidavit reiterated all the contentions raised by her in her written statement. She says previously she resided in the house of parents of plaintiff as tenant in D.No.3-206-8 about 7 or 8 years back. But during cross examination, she stated that the plaintiff resided in her house as tenant. It was elicited from PW1 also during cross examination that the plaintiff resided in the house of mother of the defendant as a tenant. That falsifies the contention of the defendant in her written statement and also in her chief examination affidavit that she previously resided in the house of parents of plaintiff as tenant.

(28)DW1 further stated in her evidence affidavit that at that time the 11 plaintiff used to maintain private chits, her husband joined as a member in the chit value of Rs.1,50,000/- and when he was declared a successful bidder, the plaintiff paid Rs.90,000/- to the husband of defendant, at that time she obtained signatures of defendant and her husband in 2013 LIC diary and later due to financial crises, her husband could not pay Rs.30,000/- to the plaintiff. Hence taking advantage of signature of defendant in LIC diary, the plaintiff lodged a complaint against them before Inuguduru police, in the month of October, 2016 and the police after enquiry stated that it is a time barred debt. Hence the plaintiff created the suit promissory note by forging the signature of the defendant on seeing her signature in the LIC diary and filed the present suit.

She also stated that she is ready to send the suit promissory note to the handwriting expert and to government press.

(29)During cross examination when Ex.A1 promissory note was confronted to her, she admitted her signatures on Ex.A1. This itself falsifies the entire plea of forgery taken by the defendant, in her written statement as well as in her evidence affidavit. Hence, in view of the above said admission made by the defendant during cross examination, it can be safely held that the suit promissory note is not a rank forged one.

(30)The evidence of DW2 who is a third party to the suit goes to show that he has got knowledge about the chit transaction between PW1 and husband of DW1. But DW1 never stated in her written statement or in her evidence affidavit about the presence of DW2 at the time of chit transaction. DW2 in cross examination stated that the defendant gave instructions to her counsel and 12 typed his chief affidavit and obtained his signature. That shows that he has not given instructions to prepare his chief affidavit. Hence the evidence of DW2 cannot be taken into consideration.

(31)The evidence of DWs 1 & 2, is not sufficient to prove the circumstances under which the suit promissory note was brought into existence as contended by the defendant. The defendant did not take any steps to produce

LIC diary or any other proof to show that there was chit transaction between the plaintiff and the husband of defendant.

(32)Though the defendant has taken a plea of forgery, but she admitted her signature on the suit promissory note, as such the learned trail Judge dismissed the application filed by the defendant in I.A.404/2017 which was filed Under Sec. 45 of Indian Evidence Act, R/w Sec.151 CPC, to send the suit promissory note i.e., Ex.A1 to the hand writing expert, to examine the signatures on Ex.A1 with admitted signatures of the defendant.

(33)Now the learned counsel for the appellant while advancing arguments submitted that the learned trail Judge ought to have given an opportunity to the defendant to send to the suit document to the hand writing expert for the purpose of comparison of the disputed signature on Ex.A1 with the admitted signatures of the defendant. But as the defendant herself admitted her signature on Ex.A1 promissory note, there is no necessity to send the suit document to the hand writing expert, for the purpose of comparison of the signatures and opinion. Hence I do not find any illegality in the order passed by the learned trail judge in dismissing the petition filed by the defendant in I.A.

13

No.404/2017, as there is no such necessity, in view of admission of signature of the defendant during her cross examination.

(34)Thus after carefully scrutiny of the entire oral and docuementary evidence, I am of the considered opinion that the evidence adduced by the defendant is not sufficient to rebut the presumption drawn against the defendant

U/Sec.118 of Negotiable Instruments Act. The defendant failed to prove the circumstances under which the suit promissory note was brought into existence, as pleaded by her in her written statement and also failed to prove that suit promissory note is a rank forged one and admitted her signature on the promissory note.

(35)On the other hand, the plaintiff established not only through the evidence of PWs 1 & 2 coupled with Ex.A1, but also through the admissions of

DW1 during cross examination that the suit promissory note is true, valid and binding on the defendant and the same was duly executed by the defendant after receiving consideration of Rs.3,00,000/- from the defendant and hence the plaintiff is entitled for a decree against the defendant for recovery of entire suit amount together with interest and costs.

(36)I have carefully perused the judgment of the trial court, and I do not find any irregularity or illegality in the judgment of the trial court and there are no grounds to interfere or set aside the judgment of the trial court and the defendant is not entitled for any relief in this appeal and hence the appeal is liable to be dismissed, by confirming the decree and judgment of the trial court in O.S.No.198/2016, dated 07-02-2018 on the file of Additional Senior Civil 14

Judge’s Court, Machilipatnam.

Hence, the points are answered accordingly.

(37) In the result, the appeal is dismissed with costs by confirming

the decree and judgment in O.S.No.198/2016, dated 07.02.2018 on the file

of Additional Senior Civil Judge’s Court, Machilipatnam.

Directly typed to my dictation to the Stenographer, corrected and

pronounced by me in open Court, this the 20th day of February, 2020.

X-ADDL. DISTRICT JUDGE,

KRISHNA, MACHILIPATNAM.

APPENDIX OF EVIDENCE

-Nil-

X-A.D.J., MTM.

1

IN THE COURT OF SPECIAL SESSIONS JUDGE-CUM-

X ADDL. DISTRICT & SESSIONS JUDGE: KRISHNA, MACHILIPATNAM

Present: Dr. Smt. Sattaru Rajani.,

X-ADDL. DISTRICT JUDGE

KRISHNA, MACHILIPATNAM.

Monday, this the 16th day of March, 2020

A.S.No.70/2018

in O.S.No.37/2017 on the file of Junior Civil Judge's Court, Bantumilli

Between:

Bokka Bhimaraju.

...Appellant/Defendant.

And

Garikamukku Vijaya Raju. … Respondent/Plaintiff.

ON APPEAL AGAINST THE DECREE AND JUDGMENT DATED 27.2.2018 IN

O.S.No.37/2017 PASSED BY THE JUNIOR CIVIL JUDGE AT BANTUMILLI, MADE

IN

Between:

Garikamukku Vijaya Raju, S/o late Yesupadam, Hindu, a/a 50 years, R/o. D.No.4-102/3, Harijanawada, Seethanapalli, Kruthivennu Mandal, Krishna District. … Plaintiff.

And

Bokka Bhimaraju, S/o late Venkataratnam, Hindu, a/a 50 years, R/o. D.No.2-40-1, Kruthivennu Village and Mandal, Krishna District. … Defendant.

This appeal is preferred by the appellant/defendant, to set aside the decree and judgment passed in O.S.No.37/2017 dated 27.2.2018 on the file of Junior Civil Judge's Court, Bantumilli.

This Appeal is coming on 18.02.2020 before me for final hearing in the presence of Sri S. Balaji Rao, Advocate for Appellant and of Sri M. Lokanadham, Advocate for Respondent and upon perusing the grounds of appeal and other material papers on record and having stood over for consideration till this day, this court delivered the following:

2

J U D G M E N T

This appeal is preferred by the defendant in O.S.No.37/2017 on the file of

Junior Civil Judge's Court, Bantumilli, to set aside the decree and judgment dated 27.2.2018 passed in favour of the plaintiff against the defendant/appellant and to dismiss the suit by allowing the appeal.

The parties herein after be, referred to, as arrayed in the trial court, as plaintiff and defendant.

2)The brief facts of the plaintiff's case are that:

(i)The defendant borrowed a sum of Rs.1,00,000/- from the plaintiff on 12.7.2014 agreeing to repay the same with interest at the rate of 24% p.a., and executed a promissory note in favour of plaintiff at Kruthivennu village, but inspite of repeated demands, the plaintiff did not pay the balance amount. Hence, the plaintiff filed suit against the defendant for recovery of amount due under the suit promissory note.

3)(i)The defendant filed his written statement, denying the suit debt transaction and execution of suit promissory note in favour of plaintiff for a sum of Rs.1,00,000/- on 12.7.2014. He contended that he has not facial acquaintance with the plaintiff and he never saw the plaintiff at any point of time, prior to filing of suit. He never borrowed any amount from the plaintiff. He never executed any promissory note in favour of plaintiff.

(ii)He further contended that the suit promissory note was was purposefully brought into existence and the same is not supported by consideration, on enquiries defendant came to know that the plaintiff has no capacity to lend huge amount from the defendant.

(iii)He further contended that about three years back, the defendant borrowed some amount from one Pasam Srinivasa Rao, S/o Yedukondalu, R/o Seethanapalli Village 3 of Kruthivennu Mandal and mortgaged the property of plaintiff with him. At the time of execution of said mortgage deed, the said P. Srinivasa Rao, obtained signatures of the defendant on 13 empty promissory notes. Now, the said P. Srinivasa Rao might have filed the suit through the plaintiff for wrongful gain and to cause wrongful loss to the defendant.

Hence, there is no creditor and debtor relationship between the plaintiff and the defendant, in view of the same, the suit is liable to be dismissed.

4)On the strength of the above pleadings, the following issues are settled by the trial court.

1) Whether the suit pronote dt.12.07.2014 is true, valid and binding on the defendant?

2) Whether the plaintiff is entitled for the suit amount as prayed for?

3) To what relief?

5)During trial, on behalf of the plaintiff, PWs.1 to 3 were examined, Ex.A1 is marked. On behalf of the defendant, DWs.1 and 2 were examined. No documentary evidence adduced by the defendant.

6)Considering the pleadings of both parties, the learned trial judge decreed the suit with costs, in favour of the plaintiff and directing the defendant to pay an amount of

Rs.1,70,466/- with subsequent interest at 12% per annum from the date of filing of the suit till the date of decree on principal amount of Rs.1,00,000/- and at the rate of 6% per annum from the date of decree till the date of realization.

7)Having aggrieved by the said decree and judgment, the defendant preferred this appeal with the following grounds.

(i) The decree and judgment of the Trial Court is against law, weight of evidence and probabilities of the case.

(ii)The Trial Court erred in granting decree in favour of the plaintiff.

4

(iii)The Trial Court fail to believe the evidence on record and also defense taken by the defendant and therefore the Trial Court erred in decreeing the suit in favour of the plaintiff.

(iv)The Trial Court did not appreciate the defense of the appellant/defendant in judicious manner and did not examine the issue in sound principles of legal system.

(v)The Trial Court ought to have seen that, the plaintiff is not the person who lent the amount, but Ex.A1 promissory note is obtained by one Srinivasa Rao, while getting the mortgage deed from the defendant, at that time the said Srinivasa Rao has taken signatures of the defendant on blank promissory note, who inturn created as a promissory note in favour of the plaintiff.

(vi)The Trial Court ought to have seen that, the Trial Court did not appreciate the rival contentions of the rival parties, simply discussed about the legal position in three paras, but no discussion about the truth or otherwise evidence let in by both the parties.

(vii)The Trial Court ought to have seen that, as the defendant herein denied his signature on Ex.A1, forget about the defense of the defendant time being, but the fact remains, the initial burden to prove the execution is upon the plaintiff who fail to plead and prove, above all, the Trial Court did not discuss the contents of the evidence of either of the parties herein, thereby the Trial Court has not applied its judicious mind in terms of appreciation, therefore, the Trial Court fail to appreciate material on record, resulting causing mis-carriage of justice to appellant herein.

(viii) The Trial Court ought to have seen that, the Trial Court has thrown burden upon the defendant to prove its non-execution, ignoring about the burden of proof lies on the plaintiff in proving its execution.

5

(ix)The Trial Court ought to have seen that, the non moving application under

Sec.45 of Indian Evidence Act, is not the lapse on the part of the defendant, at that juncture the Trial Court can as well compare the signatures of the defendant with the admitted signature, that alternative exercise, the court can avail, but in the case on hand, the Trial Court apperantly has not exercised that option, which causes further failure in rendering complete justice by the Trial Court. Therefore, the judgment of the Trial Court is liable to be vitiated for the reason of non appreciation of material on record, non exercising legitimate option under Sec.73 of Indian Evidence Act before the trial court.

These are the lapses on the part of the trial court in evaluating the evidence. Therefore, the order of the Trial Court is liable to be set aside.

(x)The Trial Court ought to have seen that there is no material on record to substantiate that the plaintiff have lent the amount to the appellant.

(xi)The Trial Court ought to have believed the evidence of the defendant and erred in granting decree in favour of the plaintiff.

Hence for the above said grounds, and the grounds to be urged at the time of hearing, the defendant/appellant sought interference of this court and judgment of the trial court and to set aside the same.

8)Heard arguments advanced by both sides, apart from advancing oral arguments, the learned counsel for the respondent/plaintiff filed written arguments.

9)Now the points for consideration are that:

(i) Whether the plaintiff is able to prove the due execution of suit promissory note by the defendant?

(ii) Whether the suit promissory note is true, valid and binding on the defendant?

(iii) Whether the defendant is able to establish that the suit promissory note was brought into existence, in the circumstances, as pleaded by him?

6

(iv) Whether the plaintiff is entitled for a decree as prayed for?

(v) To what relief, the defendant/appellant is entitled?

Point Nos.1 to 5:

10)Since the discussion in all the points is interrelated, hence in order to avoid repetition, for the sake of convenience. I am discussing all the points together hereunder.

11)In order to discharge the initial burden cast upon him, the plaintiff got himself was examined as PW.1. He got examined one Peetala Srinivasarao and G. China

Salmanraju, who are 1st and 2nd attestors of Ex.A1-promissory note, as PWs.2 and 3 respectively. He got marked Ex.A1-promissory note.

12)As seen from Ex.A1-promissory note, it is printed promissory note in Telugu and blanks were filled up by one Ch. Madhava Rao, it contains one revenue stamp worth

Re.1-00 across the revenue stamp, there is a signature as B. Bhima Raju and beneath the same again another signature is appearing.

13)Ex.A1 goes to show that the defendant the borrowed a sum of Rs.1,00,000/- from the plaintiff on 12.7.2014, agreeing to repay the same with interest at the rate of

Rs.2-00 per hundred per month i.e., 24% per annum to the plaintiff or to his order on demand, for the the purpose of construction of his house. It was attested by one P.

Srinivasa Rao and Garikamukku China Salman Raju (PWs.2 and 3) and scribed by one

Ch. Madhava Rao.

14)Coming to the evidence of PW.1-Garikamukku Vijaya Raju, his chief examination by way of affidavit is nothing but repetition of all the plaint averments.

During cross examination he admitted that he did not served notice to the defendant prior to the filing of the suit. He says, he has got 1/2 acre of land. He is living in a house constructed with the help of government and he is white ration card holder. He re-iterated 7 during cross examination that he gave an amount to the defendant on 12.7.2014 in between 12.00 noon to 2.00 P.M., at his residence. He deposed that he does not know whether the defendant mortgaged his property with one Pasam Srinivasarao. Except suggestions to PW.1 nothing was elicited from PW.1 to discredit his testimony.

15)Coming to the evidence of PWs.2 and 3, who are the attestors of suit promissory note namely Peetala Srinivasarao and Garikamukku China Salman Raju. Their chief examinations by way of affidavits are in similar lines.

16)During cross examination PW.2 deposed that PW.1 lend amount at about 2.00 P.M., at the residence of PW.1. He says, he has no any relationship with PW.1, but he used to call him as uncle by courtesy. He deposed that at the time of execution of

Ex.A1-promissory note, 5 persons were present in total. Except a suggestion that no such transaction took place under Ex.A1-promissory note and he is deposing false evidence at the instructions of PW.1 to strengthen this case, nothing was elicited from PW.2 to discredit his testimony.

17)So also, during cross examination of PW.3, nothing was elicited from him, except a suggestion that PW.1 has no capacity to lend money to the defendant and they colluded and filed this false case against the defendant. He deposed that the defendant brought the scribe Madhava Rao and he has no acquaintance with the scribe.

18)Coming to the evidence of DW.1, who admitted during cross examination that he constructed one Church at Jaggaipet village. But he says he does not know whether plaintiff worked as store keeper for construction material, during that construction. When the witness is confronted with the signature on Vakalat and also signature on the suit summons, he denied the signature. He admitted that he made proposal to sell his house prior to the filing of suit, he sold his house and he came to know 8 through tenants that his house was attached in I.A.No.96/2017. According to the plaintiff as the defendant was making hectic efforts to sell the house property, he has no time to issue notice and filed the suit urgently with an application to attach the petition schedule property, accordingly the same was attached. As such, he did not issue any notice. In view of the admission of DW.1 that he made proposal to sell his house prior to the filing of the suit, I find force in the contention of the plaintiff for not issuing notice prior to the filing of suit to the defendant. Moreover, a demand notice prior to the suit is not mandatory one.

19)Coming to the evidence of DW.2, who is no other than the son of defendant, whose chief examination runs in similar lines as that of the defendant's chief examination and contents of written statement.

20)During cross examination, he admitted that he is not aware of the monitory transactions of his father and he does not know when and where Ex.A1-promissory note was executed. He does not know the contents of his chief affidavit. This itself is sufficient to discard the evidence of DW.2.

21)Thus, to substantiate his contention of mortgage to one Pasam Srinivasarao, the defendant did not place any documentary proof before the court, and did not take any steps to summon the said Pasam Srinivasarao and examine him as a witness in this case, without any such steps or such proof, the contention of the defendant cannot be taken into consideration.

22)After careful scrutiny of entire oral and documentary evidence, not only through the evidence of PWs.1 to 3 coupled with Ex.A1, but also through the admissions of DWs.1 and 2, the plaintiff is able to discharge the burden cast upon him and proved that the suit promissory note was duly executed by the defendant and hence, the plaintiff is 9 entitled for a presumption U/Sec.118 of Negotiable Instruments Act, that the suit promissory note was drawn for consideration, unless contrary is established by the defendant to rebut the presumption. But, the evidence adduced by the defendant is not sufficient to rebut the presumption. The defendant did not take any steps to send the suit document to the hand writing expert. On the other hand, his contention that he gave 13 blank signed promissory notes to one Pasam Srinivasarao, at the time of mortgage transaction, who got filed suit through the plaintiff. That means he is admitting his signature on suit promissory note.

23)Moreover, he denied his own admitted signatures on Vakalat and suit summons. That shows that the plea taken by the defendant, is not correct. When he denied his own admitted signatures, his bare denial of signature on promissory note without cogent and convincing evidence, can not be taken into consideration. Hence, the arguments of learned counsel for the appellant that the trial court ought to examined and compared the disputed signatures on Ex.A1 with the admitted signatures by invoking

Section 73 of Evidence Act, cannot be taken into consideration, as the defendant denied his own admitted signatures on Vakalat and suit summons and impliedly admitted signatures on Ex.A1, by taking a plea that his signatures were obtained on blank promissory note in connection with mortgage transaction and one such promissory note was used and was fabricated as Ex.A1. As such, there is no necessity to compare the signatures on Ex.A1, as per Section 73 of Evidence Act. Hence, it can be safely held that the defendant failed to rebut the presumption drawn U/Sec.118 Negotiable Instruments

Act and failed to prove the circumstances under which, suit promissory note was brought into existence.

10

24)Thus, it can be safely held that the suit promissory note is true valid and bounding on the defendant and the same is executed by the defendant and it supported by consideration. Since, the defendant filed to repay the amount due under suit promissory note, the plaintiff is entitled for a decree against the defendant for recovery of entire suit amount with agreed rate of interest and costs.

25)I have carefully gone through the judgment of the trial court, there are no grounds to set aside the judgment of the trial court as there are no any material irregularities in the judgment of the trial court and same is liable to be confirmed by dismissing the appeal.

Hence points are answered accordingly.

26)In the result, the appeal is dismissed with costs by confirming the decree and judgment in O.S.No.37/2017, dated 27.2.2018 on the file of Junior Civil Judge's Court,

Bantumilli.

Dictated to the Stenographer Gr.III, transcribed and typed by her, corrected and

pronounced by me in open Court, this the 16th day of March, 2020.

X ADDL. DISTRICT JUDGE,

KRISHNA, MACHILIPATNAM.

APPENDIX OF EVIDENCE

-Nil-

X-ADJ., MTM.

1

In the Court of the IX-Addl. District & Sessions Judge-cum-

Special Court for Trial of Offences against Women, Krishna,

Machilipatnam

Present: Dr. Smt. Sattaru Rajani.,

X-ADDL. DISTRICT & SPL. SESSIONS JUDGE: FAC: IX ADDL.DISTRICT & SESSIONS JUDGE,

KRISHNA, MACHILIPATNAM

Thursday, this the 12th day of September, 2019

S.C. No.101/2012

(PRC No.20/2010 on the file of Addl.Judicial First Class

Magistrate, Nuzvid)

Between: State, Sub-Inspector of Police, Veeravalli Police Station. … Complainant

AND

1) Birudugadda Ashok Kumar @ Chinni, S/o Peturu, 31 years, C/Mala, Mallavalli Village, Bapulapadu Mandal. (A-1)

2) Birudugadda Peturu, S/o Sobhanadri, 50 years, C/Mala, Mallavalli, Bapulapadu Mandal. (A-2)

3) Birudugadda Suvarnakumari @ Papa, W/o Peturu, 45 years, C/Mala, Mallavalli, Bapulapadu Mandal. (A-3)

...Accused.

This Sessions Case came up before me on 11.09.2019 for final hearing, in the presence of Sri K.Radha Krishna, Addl. Public Prosecutor for the State and of Sri P.Madhusudhana Rao & Sri N.Somanath, Advocates for the accused and upon hearing the arguments on both sides, having perused the material papers on record, stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1)The accused No.1 is tried for the charges U/Ss.354, 447, 427 & 323 r/w 34 I.P.C. and accused Nos.2 & 3 are tried for the charges 2

U/Ss.447, 427, 323 & 354 r/w 34 I.P.C. on the allegations that they trespassed into the property of PW.1 and committed mischief when PW.1 questioned them about their highhanded acts, they beat her and A1 behaved indecently against PW.1.

2) The brief facts of the prosecution case are that:

(i)The accused and the defacto-complainant are residents of Mallavalli Village of Bapulapadu Mandal and they are blood relatives and neighbours. The PW.1-Birudugadda Mariyamma is the daughter-in-law to the elder brother of A1. There is a foot path on the northern side of the house of the accused that leads to the house of

PW.1. The accused encroached the said footpath and dug the same, on that, on 11.05.2010, PW.1 questioned the accused, then the accused grew wild and A1 pulled her hair and pushed her to ground and A2 and

A3 beat her with hands indiscriminately. Further A1 pulled the saree of the PW.1 and outraged her modesty.

(ii)Basing on the report of defacto complainant (PW.1), a case was registered in Cr.No.45/2010 U/S.354,323,427 r/w 34 I.P.C. of

Veeravalli Police Station by LW.7-Mahaboob Baig, HC-971. He investigated into the matter and examined the scene of offence, prepared rough sketch and recorded the statements of Pws.1 to 3 and other witnesses. On 14.05.2010, he arrested A1 to A3 and sent them for judicial remand.

(iii)Later, LW.8-D.Ramachandra Rao, S.I. of Police,

Veeravalli Police Station verified the investigation done by LW.7-

Mahaboob Baig and found it on correct lines. After completion of investigation, he filed charge sheet against the accused before the Court of Additional Judicial Magistrate of First Class, Nuzvid.

3

3) Considering the material on record, the learned Additional

Judicial First Class Magistrate, Nuzvid took cognizance against the accused for the offence punishable U/Sec.354, 323, 447, 427 r/w 34

I.P.C. in P.R.C.No.20/2010.

4) On appearance of the accused, copies of documents were furnished to them. As the offence U/S. 354 I.P.C. is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to court of District & Sessions Judge, Krishna, Machilipatnam and the same was numbered as S.C.No.101/2012. Later, the Sessions Case was made over to the Court of Assistant Sessions Judge, Nuzvid, for disposal according to law.

5)Later, as per the proceedings of Hon’ble District Judge,

Krishna, Machilipatnam in Dis.No.6557, Dt.20.08.2018 , the Sessions case was transmitted to this newly constituted court for trial of offence against Women, Krishna, at Machilipatnam, for disposal according to law.

Accordingly, this Court received the record from the Assistant Sessions

Court, Nuzvid, for disposal according to law.

6)On appearance of the accused, copies of documents were furnished to them. Subsequently, the matter was stayed as per the orders of the Hon’ble High Court in Crl.Petition No.2415/2011 dt.18.03.2011. Thereafter, counsel for accused filed a memo that the said criminal petition was dismissed for default on 13.11.2017 and stay was vacated.

7)As such, after hearing the learned Addl. Public Prosecutor and learned counsel for the accused and on considering the material on record, this court framed the charges U/Secs.354, 447, 427 & 323 r/w 34 4

I.P.C. against A1 and charges U/Ss.447, 427, 323 & 354 r/w 34 I.P.C.

against A2 & A3, which are read over and explained to the accused in

Telugu, they denied the charges, pleaded not guilty and claimed to be tried.

8) During trial, on behalf of the prosecution, PWs.1 to 3 were examined and Exs.P1 to P4 were marked.

9) After closure of prosecution evidence, as there is no incriminating evidence against the accused, the examination of accused

U/Sec.313 Cr.P.C, is dispensed with. The accused did not adduce any defence evidence.

10) Heard arguments advanced by both sides.

11) Now the point for consideration is:

"Whether the prosecution established the guilt of Accused No.1 for the charges U/Secs.354, 447, 427 & 323 r/w 34 I.P.C. and charges U/Ss.447, 427, 323 & 354 r/w 34 I.P.C. against A2 & A3 I.P.C. beyond reasonable doubt ?"

Point:

12)To prove the charges leveled against the accused, prosecution relied upon the evidence of PWs.1 to 3 and Exs.P1 to P4.

PW.1 is the defacto-complainant in this case, who is the victim woman.

PW.2 is her husband and PW.3 is her neighbour, who is the alleged eye witness to the occurrence.

13) The prosecution also relied upon Exs.P1 to P4. Ex.P1 is the signature of the PW.1 on her report. Exs.P2 to P4 are the contradictory portions in the statements of PWs.1 to 3 respectively, which were recorded U/Sec.161 (3) Cr.P.C.

5

14)Before discussing the evidence of prosecution witnesses, it is necessary to refer the report given by PW.1 to the Police, which set the law into motion. As seen from the report, it is a written report in Telugu said to have been given by PW.1 on 13.05.2010 at 10.30 a.m. to

Veeravalli Police Station, wherein she categorically mentioned that there is pathway of two yards towards eastern side of her house and they have been using the same for the last 50 years and that Birudugadda Peturu, his son Chinni and his wife Papa (A1 to A3) and their relatives were digging the said pathway by occupying the same, on that, at about 12.00 Noon on 11.05.2010, she questioned them about the same, then

A1 Chinni caught hold of her hair and pushed her to down, A2 and A3 beat her with their hands indiscriminately and A1 pulled her saree. On that, she gave this report to Police.

15)Coming to the evidence of PW.1, who is the defacto complainant in this case, she deposed in her evidence that she never gave any such report against the accused. She says there are no disputes between her family and the accused in connection with pathway and the accused never behaved highhandedly towards her and never beat her. She further deposed that once she approached Police for pathway arrangement, in that connection, they obtained her signature on a paper.

16)When the report is confronted to her, she stated that she does not know the contents of the same and does not know the facts of the case and that police did not examine her. But she identified her signature on the report. She did not state specifically as to why she signed on a paper at the instance of Police.

6

17) As PW.1 turned hostile to the case of prosecution and did not support the case of prosecution, the learned Addl. Public Prosecutor cross examined her, after taking permission from the court treating the witness as hostile, but during cross examination by Addl. Public

Prosecutor, nothing was elicited from her to support the case of prosecution, except marking Ex.P2 which is contradictory portion in her statement recorded U/Sec.161 Cr.P.C.

18)Thus, the evidence of PW.1 is in no way helpful to the prosecution, as she did not whisper anything against the accused. On the other hand her evidence goes to show that there are no disputes between her family and the accused and accused never behaved highhandedly towards her and they never beat her. Hence, to prove the charges leveled against the accused, the evidence of PW.1 is in no way helpful to the case of prosecution.

19)Coming to the evidence of PWs.2 and 3, who are the husband and neighbour of PW.1, they stated that they do not know anything about the facts of the case and police did not examine them.

As they did not whisper anything against the accused, the learned Addl.

Public prosecutor cross examined them with the permission of the court, treating the witnesses as hostile, but nothing was elicited from them to support the case of prosecution except marking Exs.P3 and P4 respectively, which are contradictory portions in their statements recorded U/Sec.161 Cr.P.C. Hence, their evidence also is in no way helpful to the prosecution, as they did not whisper anything against the accused.

7

20)The prosecution failed to examine the remaining witnesses including the Police Officer, who received the report from PW.1 and registered the F.I.R. and the Investigating Officer in this case. Since the material witnesses turned hostile to the case of prosecution, the learned

Additional Prosecutor has given up the evidence of remaining witnesses

stating that no useful purpose would be served even if they are examined.

21) Thus, there is no iota of evidence against the accused to prove the charges leveled against them. All the material witnesses including PWs.1 to 3 who are the defacto complainant and her husband and the alleged eye witness to the occurrence, did not support the case of prosecution, hence, examination of accused U/sec.313 Cr.P.C., was dispensed with.

22) Thus, after careful scrutiny of entire oral and documentary evidence, it is clear that there is no iota of evidence against the accused that the accused trespassed into the pathway belonging to the family of

PW.1 and dug the same and when she questioned them about the same they beat her and behaved highhandedly towards her with an intention to outrage her modesty. Hence, I have no hesitation to hold that the prosecution failed to bring home the guilt of the accused for the charges leveled against the Accused. Hence, the accused are entitled for acquittal.

Hence, the point is answered accordingly.

8

23)In the result, accused No.1 is found not guilty for the charges U/Ss 354, 323 r/w 34 I.P.C., 447 & 427 I.P.C. and Accused Nos.2 & 3 are found not guilty for the charges U/Ss. 354 r/w 34 I.P.C., 323, 447, 427 I.P.C. and they are acquitted U/s 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months, as per Sec.437-A of Cr.P.C. and shall stand canceled thereafter, if no appeal is preferred.

The unmarked property, if any is ordered to be destroyed after expiry of appeal time.

Directly typed to my dictation to the Stenographer Gr.III on system, corrected and pronounced by me in open court, this the 12th day of September, 2019.

(Sd/-) S. Rajani.,

X-Addl. District & Spl. Sessions Judge, FAC : X Addl.District & Sessions Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

witnesses examined on behalf of prosecution: P.W.1: Birudugadda Mariyamma. P.W.2: Birudugadda Francis. P.W.3: Vanukuru Mariyamma. Witnesses examined on behalf of defence: -None- Exhibits marked on behalf of prosecution:

Ex.P.1: Signature of PW.1 on the report. Ex.P.2: 161 Cr.P.C. statement of PW.1. Ex.P.3: 161 Cr.P.C. statement of PW.2. Ex.P.4: 161 Cr.P.C. statement of PW.3. Material objects -Nil- Exhibits marked on behalf of defence: -Nil-

(Sd/-) S. Rajani.,

X-A.D.J., FAC: IX-A.D.J., MTM.

//TRUE COPY//

X-Addl. District & Spl. Sessions Judge, FAC : IX Addl.District & Sessions Judge, Krishna, Machilipatnam 9 10

1

In the Court of the IX-Addl. District & Sessions Judge-cum-

Special Court for Trial of Offences against Women, Krishna,

Machilipatnam

Present: Dr. Smt. Sattaru Rajani.,

X-ADDL. DISTRICT & SPL. SESSIONS JUDGE:

FAC: IX ADDL.DISTRICT & SESSIONS JUDGE,

KRISHNA, MACHILIPATNAM

Monday, this the 5th day of August, 2019

S.C. No.198/2018

(PRC No.21/2018 on the file of VI Metropolitan Magistrate, Vijayawada)

Between: Inspector of Police, Penamaluru P.S., Vijayawada City. … Complainant

AND Maddela Ajay Kumar, S/o Ramabu, 20 years, Erukula, Lambadipet School, backside,

Yanamalakuduru, Penamaluru Mandal....Accused.

This Sessions Case came up before me for final hearing on this day in the presence of Sri K.Radha Krishna, Addl. Public Prosecutor for the State and of Sri B.Saibabu, Advocate for the accused and upon hearing the arguments on both sides, having perused the material papers on record, stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1)The accused is tried for the charges U/Ss. 417, 420 & 376

I.P.C. on the allegations that the accused committed the offence of rape and sexual exploitation, on the pretext of marriage and later, he cheated her.

2) The brief facts of the prosecution case are that:

(i)The accused and the defacto-complainant are residents of

Lambadi pet of Yanamalakuduru, Penamaluru Mandal, Vijayawada. PW.1- 2

Malavat Swathi is aged about 20 years and is unmarried by the date of complaint. She was residing with her parents by then, she studied upto 7th class. Her mother is a fish vendor. The accused is related to her. He came and contact with her about four years prior to the offence and he made her to believe that he would marry her and against her will and consent, he took her to Bandar Beach on 16th February and had sexual intercourse with her and later on the intervening night of 19/20-03-2018 at about 400 a.m. he had sexual intercourse with her near water tank, which is situated nearby her house and that on 28.03.2018, accused met her and convinced her that he would marry her.

(ii)While so on 24.03.2018, PW.1 came to know that family members of accused are searching for suitable match for the accused, then she met him and asked him about their marriage and then accused refused to marry her. Thereafter, PW.1 complained the same to her parents, who in turn brought to the notice of the parents of the accused and elders on both sides convinced that they would discuss the matter later. On 24.03.2018, they discussed about the dowry and finally declared that the accused will not marry PW.1 and the accused refused to marry PW.1.

(iii)Subsequently, PW.1 gave statement to Woman A.S.I. of Police (Smt.Indira Priyadarshini-LW.18). Basing on the same, Inspector of Police

Penamaluru P.S registered the FIR in Cr.No.211/2018, U/Secs.376, 417, 420 I.P.C. of Penamaluru P.S. Vijayawada. He took up investigation in this case. He examined PWs.1 to 3 and other witnesses and recorded their statements. He inspected the three scenes of offence and prepared rough sketches of the scenes of offence. He got prepared a scene observation report in the presence of mediator. Later, he got recorded the statement of victim girl by Woman A.S.I. of Police (R.Krishna Kumari) 3 under Section 161 Cr.P.C. and took steps for examination of accused under Section 53(A) of Cr.P.C. for potency test. Dr.P.Sharmila examined the victim girl and preserved the material objects for chemical analysis and after receiving the same, the Medical Officer issued a Final Opinion that there was evidence of sexual intercourse. After completion of investigation, he filed charge sheet against the accused before the Court of I Metropolitan Magistrate, at Vijayawada.

3) Considering the material on record, the learned VI

Metropolitan Magistrate, Vijayawada took cognizance against the accused for the offence punishable U/Sec.376, 417 & 420 I.P.C. in

P.R.C.No.21/2018.

4) On appearance of the accused, copies of documents were furnished to him. As the offence U/S. 376 I.P.C. is exclusively triable by the Sessions Court, the learned Magistrate committed the case to court of Metropolitan Sessions Judge, Vijayawada and the same was numbered as S.C.No.357/2018.

5)Later, the Sessions Case was transmitted to Principal District & Sessions Judge, Krishna, at Machilipatnam for assigning new number and to make over to the newly constituted IX Addl.District & Sessions

Judge’s Court-cum-II Addl.Metropolitan Sessions Judge’s Court-cum-

Special Court for trial of offence against Women, Krishna, at

Machilipatnam, for disposal according to law. Accordingly, this Court received the record from the District Court, Krishna, Machilipatnam and the same is renumbered as S.C.198/2018 on the file of this Court for disposal according to law.

6)On appearance of the accused, copies of documents were furnished to him and after hearing the learned Addl. Public Prosecutor and learned counsel for the accused and on considering the material on 4 record, the then Presiding Officer of this court framed the charges

U/Secs.376, 417 & 420 of I.P.C.

7) During trial, on behalf of the prosecution, PWs.1 to 3 were examined and Exs.P1 to P4 were marked.

8) After closure of prosecution evidence, as there is no incriminating evidence against the accused, hence examination of accused U/Sec.313 Cr.P.C, is dispensed with. The accused did not adduce any defence evidence.

9) Heard arguments advanced by both sides.

10) Now the point for consideration is:

"Whether the prosecution established the guilt of Accused for the charges U/Secs.376, 417 & 420 I.P.C. beyond reasonable doubt ?"

Point:

11)To prove the charges leveled against the accused, prosecution relied upon the evidence of PWs.1 to 3 and Exs.P1 to P4.

PW.1 is the defacto-complainant in this case, who is the victim girl.

PWs.2 and 3 are her parents.

12) The prosecution also relied upon Exs.P1 to P4. Ex.P1 is the signature of the PW.1 on her statement. Exs.P2 to P4 are the contradictory portions in the statements of PWs.1 to 3 respectively which were recorded U/Sec.161 (3) Cr.P.C.

13) PW.1 is the defacto complainant in this case. As per the case of the prosecution, PW.1 gave statement against the accused 5 alleging that he promised to marry her and had sexual intercourse with her on several occasions against her will and consent. She narrated several instances about the same and also she stated that mediation was held by the elders on both sides. But the accused refused to marry her, thereby cheated her.

14)But PW.1, who is the defacto-complainant deposed in her evidence that she never gave any such statement against the accused.

She says once at the instance of Police, she subscribed her signatures on some papers. When the statement is confronted to her, she stated that she does not know the contents of the same and does not know the facts of the case and that police did not examine her. But she identified her signature on the statement. She did not state specifically as to why she signed on a paper at the instance of Police.

15) As PW.1 turned hostile to the case of prosecution and did not support the case of prosecution, the learned Addl. Public Prosecutor cross examined her, after taking permission from the court treating the witness as hostile, but during cross examination by Addl. Public

Prosecutor, nothing was elicited from her to support the case of prosecution, except marking Ex.P2 which is contradictory portion in her statement recorded U/Sec.161 Cr.P.C. Thus, the evidence of PW.1 is in no way helpful to the prosecution, as she did not whisper anything against the accused. On the other hand her evidence goes to show that the accused married her and both of them have been leading happy marital life. Hence, to prove the charges leveled against the accused, the evidence of PW.1 is in no way helpful to the case of prosecution.

6

16)Coming to the evidence of PWs.2 and 3, who are the parents of PW.1. According to prosecution, PW.1 informed them that the accused cheated her by promising to marry her and later, refused to marry her, then they placed the matter before the elders and in the mediation, the accused and his family members refused to perform the marriage of

PW.1 with the accused. But they stated that they do not know anything about the facts of the case and police did not examine them. As they did not whisper anything against the accused, the learned Addl. Public prosecutor cross examined them with the permission of the court, treating the witnesses as hostile, but nothing was elicited from them to support the case of prosecution except marking Exs.P3 and P4 respectively, which are contradictory portions in their statements recorded U/Sec.161 Cr.P.C. Hence, their evidence also is in no way helpful to the prosecution, as they did not whisper anything against the accused.

17)The prosecution failed to examine the remaining witnesses including the Police Officers, who recorded the statement of PW.1 and registered the F.I.R. and also the Medical Officers, who examined the

PW.1 as well as the accused and the Investigating Officer in this case.

Since the material witnesses turned hostile to the case of prosecution, the learned Additional Prosecutor has given up the evidence of remaining witnesses stating that no useful purpose would be served even if they are examined.

18) Thus, there is no iota of evidence against the accused to prove the charges leveled against them. All the material witnesses including PWs.1 to 3 who are the defacto complainant and her parents, 7 did not support the case of prosecution, hence examination of accused

U/sec.313 Cr.P.C., was dispensed with.

19) Thus, after careful scrutiny of entire oral and documentary evidence, it is clear that there is no iota of evidence against the accused that the accused promising to marry PW.1, had sexual intercourse with her and later, he refused to marry her. Admittedly, PW.1 is aged about 20 years and is a major. As seen from the evidence of Pws.1 to 3, accused married PW.1 subsequently, as such it appears from the evidence of Pws. 1 to 3 that they did not support the case of prosecution. Hence, I have no hesitation to hold that the prosecution failed to bring home the guilt of the accused for the charges leveled against him for the offence under Sections 376,417 and 420 I.P.C. hence the accused is entitled for acquittal.

Hence, the point is answered accordingly.

20)In the result, accused is found not guilty for the charges

U/Ss 376, 417 & 420 I.P.C.. and he is acquitted U/s 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months, as per Sec.437-A of Cr.P.C. and shall stand canceled thereafter, if no appeal is preferred. The unmarked property, if any is ordered to be destroyed after expiry of appeal time.

Directly typed to my dictation to the Stenographer Gr.III on system, typed by her, corrected and pronounced by me in open court, this the 5th day of August, 2019.

X-Addl. District & Spl. Sessions Judge,

FAC : X Addl.District & Sessions Judge,

Krishna, Machilipatnam

APPENDIX OF EVIDENCE

witnesses examined on behalf of prosecution:

8

P.W.1: Malavath Swathi. P.W.2: Malavath Ramana. P.W.3: Malavath Ramu. Witnesses examined on behalf of defence: -None- Exhibits marked on behalf of prosecution:

Ex.P.1: Signature of PW.1 on the statement. Ex.P.2: 161 Cr.P.C. statement of PW.1. Ex.P.3: 161 Cr.P.C. statement of PW.2. Ex.P.4: 161 Cr.P.C. statement of PW.3.

Material objects -Nil- Exhibits marked on behalf of defence: -Nil-

X-A.D.J., FAC: IX-A.D.J., MTM.

9

Fair Judgment 10