Shaik Inthiaz Ahamed

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IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE, SOMPETA

Present: SHAIK INTHIAZ AHAMED V1 Additional District Judge, Sompeta at Srikakulam .

TUESDAY, THIS THE 15 TH DAY OF MARCH, 2022

APPEAL SUIT No. 148/2014

Between :

1. Malla Chandrasekhara Rao ( DIED)

2. Malla Sambasiva Rao son of Savarayya, aged 43 years, Hindu, Business, resident of Palasa, Palasa mandal, Srikakulam district.

3. Malla Srinivasa Kumar son of Savarayya, aged 30 years, rest do.

4. Gudla Shivakumari wife of Trinadha Rao, 42 years, Hindu, Household duties, resident of Gujarathipeta,Srikakulam.

5. Korada Sujatha wife of Ramachandra Rao, 34 years, Hindu, household duties, resident of Kalivarapupeta, Narasannapeta, Srikakulam district.

6. Malla Rupavathi wife of late Cahndrasekhara Rao, 50 years, Household duties, resident of Subbamma Quarters, Kotta veedhi, Palasa, Palasa mandal.

7. Malla Chanikya son of late Chandrasekhara Rao,30 uyears, Business, resident of Subbamma Quarters, Kotta veedhi, Palasa, Palasa mandal.

8. Doki Anusha wife of Srinivasa Rao, 26 years, household duties, resident of Subbamma Quarters, Kotta veedhi, Palasa, Palasa mandal ( The appellant Nos.6 to 8 are added as per orders in I.A.240/2017

dt. 3.7.2019)

..Appellants/Plaintiffs.

And :

1. Kilari Kameswara Rao @ Nalladu, son of late Danayya, aged 50 years, cultivation and Milk business, resident of Reddiki Veedhi, Palasa, Palasa mandal, Srikakulam district.

2. Gangi Rajulu son of late Chinnababu, 65 years, rest do.

3. Nougapu Apparao, son of Balayya, aged 45 years, Barbar, resident of Ullasapuram-Udayapuram in Palasa, Palasa mandal.

4. Penta Madhavarao son of late Upendra Rao, aged 30 years, Hindu, Business, resident of Chepala Bazar Veedhi, Palasa, Palasa mandal

5. Penta Pedda Laxmana Murthy ( DIED)

6. Gangi Ramarao son of late Chinnababu, 49 years, Hindu, Milk business, resident of Kotta veedhi, Palasa, Palasa mandal

7. Gangi Krishna Rao son of late Chinnababu, aged 43 years, Milk Business, resident of Chepala Bazar Veedhi, Palasa, Palasa mandal.

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8. Penta Ramgopal son of late Pedda Laxmana Murthy, aged 54 years, Business, Chepala Bazar Veedhi, Palasa, Palasa mandal, Srikakulam district.

9. Penta Ravi son of late Pedda Laxmana Murthy, aged 47 years, Business, resident ofChepala Bazar Veedhi, Palasa mandal, Srikakulam district.

10. Kilari Venkaiah son of late Kameswara Rao, 40 years, Painter, resident of Reddika veedhi, Palasa, Palasa mandal, Srikakulam district.

11. Kilari Mangamma d/of late Kameswara Rao, 43 years, Household duties, resident of Reddika veedhi, Palasa, rest do.

12. Gangi Prasad son of late Rajulu, 60 years, Milk business and cultivation, resident of Reddika veedhi, Palasa, rest do.

13. Gangi Dhilip son of late Rajulu, 52 years, Milk business and cultivation, resident of Reddika veedhi, Palasa, rest do.

14. Nakka Lata wife of late Rajulu, 62 years, Household duties, resident of Reddika veedhi, Palasa, rest do.

15. Jada Mani d/of late Rajulu, aged 58 years, Household duties, resident of Reddika veedhi, Palasa, rest do.

16. Chittamma d/of late Rajulu, 52 years, Household duties, rest do.

17. Laxmi Bai d/of late Rajulu, 50 years, household duties, rest do.

( The respondent Nos.8 and 9 are added as per oder dt.16.12.2019) ( The respondent Nos.10 to 17 are added as per orders in I.A.60/2020)

..Respondents/defendants.

Appeal against the Decree and Judgment on 25.02.2000 passed

in O.S. No.43/1992 on the file of Junior Civil Judge, Palasa

Between :

1. Malla Savarayya ( DIED)

2. Malla Chandrasekhara Rao son of Savarayya, 42 years, Business, Palasa.

3. Malla Sambasiva Rao son of Savarayya, aged 39 years, Hindu, Business, resident of Palasa, Palasa mandal, Srikakulam district.

4. Malla Srinivasa Kumar son of Savarayya, aged 26 years, rest do.

5. Gudla Shivakumari wife of Trinadha Rao, 38 years, Hindu, Household duties, resident of Gujarathipeta,Srikakulam.

6. Korada Sujatha wife of Ramachandra Rao, 30 years, Hindu, household duties, resident of Kalivarapupeta, Narasannapeta, Srikakulam district.

7. Malla Gaddemma wife of Savarayya ( DIED) ( Plaintiff No.1 died, plaintiff Nos.2 to 7 are added as legal representatives of 1st plaintiff as per order in IA 206/1993 dt.8.8.1996)

( Plaintiff No.7 died, memo filed by plaintiff counsel stating that

the L.Rs of plaintiff No.7 were already record. Memo recorded)

..PLAINTIFFS.

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And :

1. Kilari Kameswara Rao @ Nalladu, son of late Danayya, aged 43 years, cultivation and Milk business, resident of Reddiki Veedhi, Palasa, Palasa mandal, Srikakulam district.

2. Jamma Gaangayya son of late Kistamma , 58 years, Milk business rest do (DIED)

3. Gangi Rajulu son of late Chinnababu, 58 years, rest do.

4. Nougapu Apparao, son of Balayya, aged 38 years, Barbar, resident of Ullasapuram-Udayapuram in Palasa, Palasa mandal.

5. Penta Madhavarao son of late Upendra Rao, aged 23 years, Hindu, Business, resident of Chepala Bazar Veedhi, Palasa, Palasa mandal

6. Penta Pedda Laxmana Murthy , son of late Peda Ramamurthy, 56years, cloth business, residing at Chepala Bazar veedhi, Palasa.

7. Gangi Ramarao son of late Chinnababu, 42 years, Hindu, Milk business, resident of Kotta veedhi, Palasa, Palasa mandal

8. Gangi Krishna Rao son of late Chinnababu, aged 36 years, Milk Business, resident of Chepala Bazar Veedhi, Palasa, Palasa mandal.

( The 2nd defendant died, steps petition vide IA 563/1998 filed, dismissed on 19.02.1999)

..Defendants

This appeal is coming on 10.03.2022 for final hearing before me in the presence of Sri V.C.Patnaik, Advocate for the appellants/plaintiffs and of Sri H.S.Rani, Advocate for the respondent Nos.1 to 3,

Sri K.S.Prasad Babu, Advocate for the respondent Nos.4 and 5(set exparte) and of Sri K.Govardhana Rao, Advocate for the respondent

Nos.2 , The respondent No.6 remained exparte, Appeal against R8 and

R9 dismissed, and upon hearing the argument of both sides and matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

01.This appeal is preferred against the decree and judgment,

dated 25.02.2000 passed in O.S. No. 43/1992 on the file of Junior Civil

Judge, Palasa.

The Appellants are the plaintiffs in O.S.43/1992 on the file of Junior

Civil Judge, Palasa filed the suit for grant of permanent injunction against

the respondents/defendants in respect of A,A1,B,B1,C,C1, D and D1 passage as shown in the plaint plan.

4 02.The brief averments of the plaint are as follows:

The entire site shown as A.B.C. and D in the plaint plan is situated in Udayapuram in Palasa, Palasa mandal is the ancestral property of

Malla Kondala Rao, Kameswara Rao and Malla Savarayya, the plaintiff herein and their mother Malla Subbamma and they are in joint possession and enjoyment of the same in their own right. A house consisting of three portion in a portion of the entire site was constructed by the family of Malla Kameswara Rao, one of the said three brothers, to the East and West of the said house are vacant sites which are in possession of Malla Savarayya and Kondala Rao and their successors in interest. Both Kondala Rao and Kameswara Rao died and their heirs are in possession of the same. The house of Malla Kameswara Rao, opens to the South as shown in the plaint plan. To the south of the vacant site, the three brothers have constructed 12 residential houses and they were leased out to various tenants. Therefore, the site shown as

A,A1,B,B1,C,C1, D and D1 passage is being used as passage for the said houses.

It was further averred in the plaint that, the defendants and others have got houses to the south of D,D1 and C,C1 and having their backyards towards North. Malla Kondala Rao and his brothers divided long back, but the vacant sites towards North, East and South are kept joint and is being used as such by all the three branches. The defendants and their predecessors have threatened to occupy the vacant site around the houses of the plaintiff’s family. So, Malla Kondala

Rao, Savarayya and Kameswara Rao and their mother Subbamma filed a suit in the court of District Munsif, Sompeta in O.S. No.89/1946 against the first defendant and the successors, predecessors in interest of the other defendants. In the said suit O.S.No.89/1946 was ended in compromise and it was agreed by both the parties that the vacant site in 5 and around the houses shown as A,A1,B,B1,C,C1,D and D1 with five feet width and with the length as shown in the plaint plan, be permitted to be used by the defendants and plaintiffs therein as a passage and the defendants have agreed to set apart their site shown as M.N.O.P in the plaint plan for use as passage by the plaintiff’s family to go to Choultry road and other places. The said compromise was effected on 25.2.1947 and compromise decree was passed. Subsequently, Malla Kondala Rao,

Subbamma and Kameswara Rao died. The plaintiff No.1, Savarayya is the only surviving member of the family, filed the suit as a co-owner.

It was further averred that, the defendants are now proclaiming that they would occupy the plaint schedule site without any manner of right. Hence, this suit.

03.The defendant No.1 filed his written statement denying the material averments of the plaint.

Defendant No.1 contended that, the plaint plan is not correct. The compromise decree in suit OS 89/1946 on the file of District Munsif,

Sompeta was never acted upon by any of the parties thereto. The site described in the plaint is not in Sy No.104, Palasa, it is actually situated in S.No.325 of Udayapuram village which is a village site. The site shown in plaint plan falls within the site covered by S.No.325 of Udayapuram village. It was contended that, D,D1,C,C1 and B,B1 passage is in existence and being used as such by all the parties. The plaintiff suppressed the fact that C,C1, B,B1 extends upto and merge with the road leading to choultry. A,A1 is the extension of the line C1, B1 upto A,

B line is not in existence. There was no passage to the north of the alleged three houses of the plaintiff’s family and vacant sites on either side.

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It was further averred that, MNOP is not in existence and it is wrongly introduced by the plaintiff. To the North of this road in MNOP,

Gangi Ramarao, 7th defendant constructed a pucca house about 20 years back to the knowledge of all, to the North of the said house, 7th defendant constructed a terraced house, so the 7th and 8th defendants are in possession and enjoyment of the same in open assertion of hostile title coupled with possession. The 12 houses indicated in the plan are correct. The vacant site towards North of 12 houses has been and is being used as a passage to C,C1,B,B1 extended upto choultry road, for the MNOP shown in the plaint plan faded. The passage A,A1,B1 and its extension upto A,B line, is being as a passage by the defendant

Nos.2,1,3,4 and others as passage by erecting foundations, cattle sheds and as their backyards since long back and they have perfected their title to the alleged passage adjacent to the north of the houses of the plaintiff’s family. South of C.D line and parallel to it, Reddy street has been in existence since times immemorial and the people of that locality using the vacant sites as their backyards upto C.D. line.

It was further contended that, the compromise deed was brought about in OS 89/1946 was never acted upon and the absence of relief of injunction over MNOP plays a significant role in the suit and the assertion of title and possession by some of the defendants over the so called passage and MNOP.

04. The defendant Nos.5 and 6 filed their common written statement and denied the material averments of the petition. They contended that, they have nothing to do with the suit O.S.No.89/1946 and they are not parties to the said suit. A.B.C. and D is the joint house of the defendant Nos.5 and 6 and subsequently a partition was effected.

There was a vacant site C.E.F.D. purchased by way of registered document dt.12.01.1967 and also vacant site shown as GHIF under a 7 registered document and they have been in possession and enjoyment of the same.

It is admitted by them that, the passage shown as D,D1,C,C1, B,B1 in the plaint plan is in existence and has been used as a Rahadari by all the parties. The MNOP shown in plaint plan is not in existence. The plaintiff is not entitled for injunction over A,A1,B,B1 upto B line and the passage shown as D,D1,C,C1 along with C,B line is being used by all the people which is extending upto choultry road.

05.Basing on the averments of the plaint and the written statement, the trial Court settled the following issues for trial:

1. Whether the plaintiffs are entitled for permanent injunction, as prayed for?

2. To what relief?

06.Before the trial Court, PW1 to PW3 were examined and

Exs.A1 to A4 were marked on behalf of plaintiffs.

On behalf of defendants, DW1 to DW4 were examined and Exs.B1 to Ex.B15 were marked before the trial court.

07.The trial Court after considering the evidence of both the parties, decreed the suit in part in respect of D,D1,C,C1 and B.B1 passage only and the relief in respect of A,A1 and B,B1 passage is dismissed.

08.Aggrieved by the decree and judgment of the lower Court, the present appeal is filed by the appellants/plaintiffs with the following grounds of appeal.

i) The decree and judgment passed by the lower Court is contrary to law, weight of evidence and probabilities of the case, 8 ii) The appreciation of evidence that the trial court is not that of as of a Civil Court. The commentary in filing the suit against the defendant No.5 and 7 of the trial court is unwarranted.

Iii) The reasons urged for withholding the relief of passage in respect of A,A1, B,B1 is not correct. The probabilities of the case would show that the passage A,A1,B and B1 must have been in existence to be used as a front yard or back yard and specially three houses have been constructed.

For these reasons and for other reasons, the appeal is liable to be allowed.

09.The parties are referred as plaintiffS and the defendants as they are arrayed in the suit before the lower Court.

10. Heard arguments of both sides.

11.Considering the contentions of both the parties, the following point is framed for determination.

“Whether the decree and judgment, dated

25.02.2000 passed by the trial Court in

O.S. No. 43/1992 warrant any interference in

this appeal?

12.P O I N T:

The learned counsel for the appellants/Plaintiffs argued that, they have constructed their houses in their own site and the passage shown as A,A1,B,B1,C,C1 and D,D1 is being used by them as passage for their houses, as shown in the plaint plan. The plaintiff’s family I.e, Malla

Kondala Rao,Savarayya, plaintiff herein and his Kameswara Rao and their mother Subbamma filed O.S.No.89/1946 on the file of District

Munsif, Sompeta and the said suit was ended in compromise and it was agreed by both the parties that the vacant site in and around the houses 9 shown as A,A1,B,B1,C,C1,D and D1 with five feet width and with the length as shown in the plaint plan, be permitted to be used by the defendants and plaintiffs therein as a passage and the defendants have agreed to set apart their site shown as M.N.O.P in the plaint plan for use as passage by the plaintiff’s family to go to Choultry road and other places. The said compromise was effected on 25.2.1947 and compromise decree was passed. Hence, he filed the suit for permanent injunction in respect of passage shown in the plaint plan as

A,A1,B,B1,C,C1 and D,D1 and the trial court went wrong in partly decreeing the suit and dismissed the relief of injunction against A,A1 and

B,B1 shown in the plaint plan and requests the court to allow the appeal.

13.On the other hand, the learned counsel for the respondents/defendants argued that, there is nothing warranting this court to interfere into the findings of the trial court and the trial court after gone through the evidence available on record and the documents placed before it, partly decreed the suit and prays the court to dismiss the appeal.

14. Since the suit is filed for permanent injunction, the scope of the suit is very limited and the possession has to be looked into first and title can be looked into incidentally. The plaintiffs have to prove their physical possession over the plaint schedule property as on the date of filing of the suit, as enunciated under Sec.101 of the Indian

Evidence Act.

10 15.The plaintiffs filed the suit for grant of permanent injunction in respect of A,A1,B,B1,C,C1,D and D1 for use of passage by the plaintiff and his family members, their tenants and servants. The defendant

No.1 and defendant Nos. 5 and 6 admitted in their written statement about the existence of passage D,D1,C,C1 and B,B1 and it is being used as a passage by both the parties and the defendants have not raised any objection with regard to the same. So, when it was clearly admitted by both the parties about the existence and usage of passage in between

D,D1,C,C1 and B,B1, this court need not discuss much on this aspect, as it is a settled principle that, “Admitted facts need not be proved”.

16.PW1 to PW3 supported the case of the plaintiffs/appellants in their chief examination. In his cross examination, he admitted that, the plan filed by him was not issued by the Municipality or Gram panchayat.

On the north of the property the defendants are residing. To the further north of defendants houses, there is a road leading to the Choultry.

Their site is situated to the north of defendants site. There is a road on the west of his site and the site of defendants. He admitted that, the survey number of the suit property is 325/1. Whereas in the plaint schedule it was mentioned as Filed No.104. He admitted that, he is not having any sale letters or 10(1) Adangals in respect of this property.

There is a way to upper choultry road which is denoted as C,C1 and B,

B1 as shown in the plaint plan and the same extend upto choultry road.

The said contention is admitted by defendants. He admitted that, in

MNOP site, there are houses of D7 and D8. So, the question of granting injunction in respect of MNOP site does not arise, in view of the own admission of PW1 that, there are houses of Defendant Nos.7 and 8 in

MNOP site. He stated that, he does not know how Defendant Nos.5 and 6 came into possession and enjoyment of the property.

11 17.It is the case of appellants/plaintiffs that, as per the compromise decree in OS 89/1946 on the file of District Munsif, Sompeta dt.25.4.1947, they have obtained permission from the defendants and using the path way shown as A, A1 and B, B1 property along with the path way decreed in their favour by the trial court. The same is denied by the respondents/defendants and they contended that, the compromise decree was not effected. The plaint is silent with regard to the ownership of the property claimed by the appellants/plaintiffs.

Further, PW1 himself admitted in his cross examination, except the plaint plan which is nothing but self serving document he has no other document to show his ownership over the property. On keen perusal of

Ex.A3 and Ex.A4, sale deeds, they do not establish the usage of passage by the appellants/plaintiffs.

It is a general principle that, injunction is an equitable relief. It is admitted by the respondents/defendants that the existence of passage mentioned as D,D1,C,C1 and B.B1 and it is being used by both the parties. PW1 himself admitted about the existence of houses of

Defendant Nos.7 and 8 in the MNOP shown in the plaint plan. Here the plaintiffs/appellants proved the main ingredients for grant of injunction which are prima facie case, balance of convenience and irreparable loss in respect of the property i.e., passage shown as D,D1,C,C1 and B,B1.

Therefore, the trial court rightly granted the relief of injunction in respect of D,D1,C,C1 and B,B1 and rightly dismissed the relief of injunction in respect of A,A1 and B, B1.

12 18.Considering the facts and circumstances of the case and the evidence available on record and the documents adduced on either side,

I am of the opinion that, the trial court rightly appreciated the oral and documentary evidence and decreed the suit in part and hence no interference of this court is required into the findings of the trial court.

Accordingly, this point is answered.

19. In the result, this appeal is dismissed without costs, by confirming the decree and judgment passed by the learned Junior Civil

Judge, Palasa in O.S. 43/1992 dt. 25.02.2000.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 15th day of March, 2022.

VI ADDL. DISTRICT JUDGE, SOMPETA

Copy to the Junior Civil Judge, Palasa . (Along with lower court record).

IN THE COURT OF THE VI ADDL. DISTRICT & SESSIONS JUDGE, SOMPETA AT

SRIKAKULAM

Present: Shaik Inthiaz Ahamed VI Additional District & Sessions Judge, Sompeta

WEDNESDAY, THIS THE 23rd DAY OF MARCH, 2022

CRIMINAL APPEAL No. 47/2019

From what court the appeal is Judicial Magistrate of I Class, Tekkali preferred Number of the case in that Court C.C.No.322/2016 Number of the AppealCrl.A. 47/2019 Name and description of theBabula Panda son of late Duryodhana Appellant/AccusedPanda, 42 years, Oriya Brahmin by caste, Korrai grate, Ranganadhapuram village, Mandasa mandal, Srikakulam district. Name and Description of the State represented by the Sub Inspector of Respondent/complainantPolice, Tekkali police station through

Additional Public Prosecutor

2. Hemalatha Panigrahi wife of late Suryanarayana Panigraphi, 45 years, Oriya Brahmin byRespondent/Accused No.2 caste,Korraigrate, Ranganadhapuramvillage, Mandasa mandal, Srikakulam district. The sentence and order under The judicial Magistrate of I Class, Tekkali which it was imposed in theacquitted the accused No.2 under lower Court.Sec.248(1) Cr.P.C. for the offences punishable under sections 498A read with Sec.34 of Indian Penal Code and Secs.3 and 4 of Dowry Prohibition Act. The accused No.1 is acquitted under Sec.248(1) of Cr.P.C. for the offences punishable under Secs. 3 and 4 of Dowry Prohibition Act.

The accused No.1 is found guilty for the offence punishable under Sec.498- A of Indian Penal Code and he is convicted under Sec.248(2) of Cr.P.C. for the said offence.

The accused No.1 is sentenced to undergo simple imprisonment for a period of three (3) months and pay a fine of Rs.2,000/- for the offence punishable under Sec.498-A of Indian Penal Code, in default of payment of fine, he shall undergo simple imprisonment for a period of one month for the offence punishable under Sec.498-A of Indian Penal Code.

2

REVERSED

In the result, the appeal is allowed. The calendar and judgment passed by the

Judicial Magistrate of I Class, Tekkali in

Whether confirmed/modified or Reversed, if modified the C.C.322/2016 dt. 23.07.2019 is modification hereby set aside.

The accused is found not guilty for the offence punishable under Secs.498-A of

Indian Penal Code and accordingly he is acquitted under Sec.248(1) of Cr.P.C. for the said offence.

Date of presentation16.08.2019 Date of filing17.08.2019 Notice issued by Court to appear 24.09.2019 Bail bonds if appellant has been let out on bail On bail

Appellant ordered to appear24.09.2019

Date of hearing14.03.2022

Date of judgment 23.03.2022

This Criminal Appeal came on 14.03.2022 for final hearing before me in the presence of Sri K.Rajeswara Rao, learned Advocate for the appellant/accused and of Sri K.Venkateswara Rao, learned Additional Public

Prosecutor, for the Respondent/Complainant and having heard and stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

01. The appellant who is accused No.1 in calendar case No.322/2016 was tried for the offence under Sections 498-A of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition Act and the learned Judicial Magistrate of I Class,

Tekkali vide his judgment dated 23.07.2019 , acquitted the accused No.1 under

Sec.248(1) Cr.P.C. for the offences under Sections 3 and 4 of Dowry Prohibition 3

Act . But convicted the accused under Sec.248(2) of Cr.P.C. for the offence under Sec. 498-A of Indian Penal Code and sentenced the accused No.1 as stated supra.

02. The case of the prosecution is :-

The complainant/PW1-Savitri Panda was given in marriage with accused No.1, and their marriage was performed as per the caste customs in the presence of elders and family members i.e., LW2/Nageswara Panda,

PW2/Raghu Chandra Panda and PW3, Baburao Panda. At the time of their marriage, the parents of PW1, had given Rs.3 lakhs towards dowry, 2.5 tolas of gold and other sare samans to the accused No.1. Out of their wedlock, PW1 gave birth to two children. Accused No.1 lived by working as a priest in a temple. Accused No.2 is sister of accused No.1. Accused No.1 was addicted to bad habits and always harassed the PW1 in different ways, for which A2 supported him.

About two years ago, while PW1 and A1 were constructing a new house at

Korrai gate, A1 demanded PW1 to bring additional dowry of Rs.2 lakhs, she gave the amount, as she was unable to bear the torture in the hands of accused No.1.

Again with the active support of A2, A1 demanded PW1 to bring additional dowry, for which she came to her parents house and stated along with her children in the said house. PW4, Bommali Laxminarayana, PW5, Davala

Appalaswamy, PW6, Pandiri Bairagi and PW7, Nalla Danesu who are the village elders conducted counseling to Accused No.1, in the said counseling accused

No.1 agreed to take back the PW1 and their children, but refused to do so.

While so, on 4.9.2016 morning, A1 came to her house and demanded PW1 that if she wants to live with him, she has to bring additional dowry, otherwise she has to be at their parents house with their children.

Basing on the report ofPW1, PW8, V.Nagaraju, Sub Inspector of police,

Nandigam police station registered a case in Cr.No.77/2016 under Secs.498-A 4 and Sec.3 and 4 of Dowry Prohibition Act and investigated into. During the course of investigation, he examined the witnesses and served notice under

Sec.41-A of Cr.P.C. to accused. After completion of investigation, PW8, Sub

Inspector of police, filed charge sheet against the accused No.1 and A2.

03.The learned Judicial Magistrate of I Class, Tekkali had taken cognizance for the offences punishable under Secs.498-A and Sec.3 and 4 of Dowry Prohibition Act against the accused Nos.1 and 2. After appearance of

Accused Nos.1 and 2 , copies of documents were supplied to them as required under Sec.207 of Cr.P.C. The accused No.1 and 2 were examined under Sec.239

Cr.P.C. and charges under Sec. 498-A and Sec.3 and 4 of Dowry Prohibition Act have been framed against Accused Nos.1 and 2, read over and explained to them in Telugu, for which they denied the offences and claimed to be tried.

04.To prove the case of the prosecution, P.Ws.1 to 8 were examined and

Exs.P1 to 3 were marked before the trial Court. The appellant/accused was examined under Sec.313 Cr.P.C. before the trial court and the accused denied the evidence of prosecution witnesses.

05.After assessing the evidence adduced by the prosecution, meticulously the Judicial Magistrate of I Class, Tekkali found the accused No.1 not guilty for the offences punishable under Secs.3 and 4 of Dowry Prohibition

Act. Accused No.2 is found not guilty for the offence punishable under Sec.498-A of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition Act. But Accused No.1 was found guilty for the offence punishable under Sec.498-A of Indian Penal

Code and he was convicted under Sec.248(2) of Cr.P.C. for the said offence.

06.Aggrieved by the sentence and conviction, the present appeal is preferred by the appellant-accused No.1 challenging the judgment of the trial court. The prosecution did not choose to file any appeal against the order of acquittal of accused No.2.

07. Arguments of both sides heard.

5 08. Perused the Grounds of Appeal.

i) The learned counsel for the appellant/accused argued that, the judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

ii) the trial court should have acquitted the accused No.1 for the charges levelled against him, as the prosecution failed to prove the concept of burden of proof as per the Indian Evidence Act and the Exs.P1 to P3 do not establish the guilt of accused No.1 for the offence punishable under Sec.498-A of Indian Penal

Code.

iv) the trial court went wrong in believing the evidence of prosecution witnesses and their evidence did not inspire confidence in convicting the accused No.1.

For these and other grounds, he prayed the court to set aside the conviction and sentence passed against the appellants/accused.

09.Now the point for consideration before this court is,

Whether the conviction and sentence imposed on the

Appellant/accused No.1 for the offence punishable under section 498-A of Indian Penal Code by the learned Judicial Magistrate of I

Class, Tekkali dt. 23.07.2019 is liable to be set aside or confirmed or modified and if so, to what result?

10. POINT :

The learned counsel appearing for the appellant/accused No.1 argued that, PW1 voluntarily left the company of accused No.1 and after three months of her going to her parents house, she preferred complaint against the accused

No.1. PW2 to PW5 are only came to know about the incident and their evidence is not much helpful to prove the case of the prosecution. PW6 deposed that there are only petty disputes between accused No.1 and PW1, it does not come under the purview of Sec. 498-A of Indian Penal Code. As per the evidence of 6

PW1, the entire incident was happened at Korrai gate of Mandasa mandal, but

PW1 lodged report at Nandigam police station. The evidence of prosecution witnesses does not establish any case against the accused No.1 and hence prays to allow the appeal.

11. On the other hand, the learned Additional Public Prosecutor argued that, the trial court rightly discussed and appreciated the evidence of prosecution witnesses and rightly convicted the accused No.1 for the offences punishable under Secs.498-A of Indian Penal Code and there is nothing warranting this court to interfere into the findings of the trial court and prays to dismiss the appeal.

12. The trial court convicted the accused for the offences punishable under Sec.498-A of Indian Penal Code, which reads as follows :

Husband or relative of husband of a woman subjecting her to cruelty:-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for term which may extend to three years and shall also be liable to be fine.

13.Now, the burden is on the prosecution to prove that, accused No.1 being the husband of PW1, subjected her to cruelty. To prove its case, the prosecution examined the wife of accused No.1 as PW1, PW2 and PW3 are brothers of PW1. PW4 is the person who attended the marriage of PW1 and accused No.1. PW5 to PW7 are elders of the village and PW8 is the investigating officer in this case.

14.PW1, Savitri Panda, wife of accused No.1 deposed in her evidence about her marriage and the harassment meted out by her in the hands of accused and the demand of dowry of Rs.2 lakhs by the accused No.1 at the time of construction of their house. I am extracting here, the exact words spoken by

PW1 in her evidence is as follows : “ A1 used to come to house, along with his friends, late night and used to ask me to cook food, for them and if I 7 refused for the same, the A1 used to through away all the kitchen articles and the A2, used to reside along with us, used to lock me in the room, as I may inform the same to the elders. In the year 2004, I went to my parents house for delivery and at that time, the A1 had sold away all the sarisamanulu brought by me, for his vices”.

On keen perusal of the Ex.P1, report of PW1 given to police, there is no mention in Ex.P1 about the statement made by her in her evidence before this court. So, it seems that, PW1 in order to strengthen her case, she has introduced a different version from the previous version stated by her in her

Ex.P1 report.

15.PW2, Raghu Chandra Panda and PW3,Babu Rao Panda, brothers of

PW1, deposed in their chief examination that, after marriage of PW1 and A1, A1 and PW1 had disputes between them, on that they had put the matter before elders for three times and PW1 had joined the A1. The same is not stated by PW1 in her chief examination nor mentioned in Ex.P1 report. Further, PW2 and PW3 deposed in their evidence that, PW1 left the house of A1 without informing to A1. PW8, investigating officer also deposed that, as per his investigation, PW1 had voluntarily left the matrimonial house and went to the parents house. The evidence of

PW8 inspires the confidence of this court that PW1 voluntarily left the matrimonial home of the accused No.1 and went to her parents house without informing to him.

The evidence of PW4 to PW7 is that they came to know about the incident through PW1. They have not personally witnessed the disputes in between PW1 and Accused No.1.

8 16.As per Sec.498-A of Indian Penal Code, the word “ Cruelty” is defined as :

a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental or physical of the woman; or

b) harassment of the woman to her to meet any unlawful demand for any property or valuable security or is on account of failure by her, or any person related to her to meet such demand.

17.The first explanation a) is not applicable to the present case on hand. There is no allegation that there is any such conduct on the part of the appellant/accused NO.1 which could be said to be amounting to cruelty of such a nature as is likely to cause the PW1 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under explanation (a) of

Section 498AIPC are not at all mentioned either in FIR or in charge sheet and in absence thereof, no case is made out. Therefore, explanation (a) as found in

Section 498AIPC is clearly not attracted in the present case.

The entire case is based on, where such harassment is with a view to coercing her any person related to meet any unlawful demand for any property or valuable security or is on account of failure by her, or any person related to her to meet such demand.

Here in this case, PW1 is wife of accused No.1 and PW2 and PW3 are brothers of PW1 though deposed in their evidence that, the accused No.1 demanded PW1 to bring dowry, but failed to prove the same by adducing oral or documentary evidence. The trial court also discussed at length about the demand of dowry and acquitted the accused No.1 for the offences under

Secs.3 and 4 of Dowry Prohibition Act.

This court has gone through the citation in between State of A.P vs. M.

Madhusudhan Rao , (2008) 15 SCC 582, wherein it was observed that, for the purpose of Section 498-A, harassment simplicitor is not “cruelty” and it is 9 only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC,

The supreme Court time and again says “cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of

Section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The same is lacking in this case. Therefore, this court is of the opinion, that the prosecution failed to prove the guilt of accused No.1 for the offence punishable under Sec.498-A of Indian Penal Code and thereby the accused No.1 is entitled for acquittal. Therefore, the interference of this court is required into the finding of the trial court. Accordingly, the point is answered.

18. In the result, the appeal is allowed. The calendar and judgment passed by the Judicial Magistrate of I Class, Tekkali in C.C.322/2016 dt. 23.07.2019 is hereby set aside.

The accused is found not guilty for the offence punishable under

Secs.498-A of Indian Penal Code and accordingly he is acquitted under

Sec.248(1) of Cr.P.C. for the said offence.

Typed to my dictation, corrected and pronounced by me in open court on this 23 rd day of March, 2022.

VI Additional District & Sessions Judge, Sompeta.

Copy to the Judicial Magistrate of I Class, Tekkali along with L.C record

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IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE, SOMPETA

Present: SHAIK INTHIAZ AHAMED V1 Additional District Judge, Sompeta at Srikakulam .

TUESDAY, THIS THE 8TH DAY OF MARCH, 2022

APPEAL SUIT No.02/2018

Between:

Kanithi Gangadharam son of late Rajanna, aged about 60 years, Hindu, cultivation, resident of Gopivallabhapuram village,Tekkalipatnam post, Palasa mandal, Srikakulam district, Andhra Pradesh.

..Appellant/Defendant

And : Patnana Kumari wife of Srinivasa Rao, aged about 32 years, Hindu, Household duties, resident of Murikintipladra village, Meliyaputti mandal, Srikakulam district.

..Respondent/Plaintif

Appeal against the Decree and Judgment dated 09.10.2017

passed in O.S. No.85/2010 on the file of Junior Civil Judge,

Tekkali

Between :

Patnana Kumari wife of Srinivasa Rao, aged about 28 years, Hindu, Household duties, resident of Murikintipladra village, Meliyaputti mandal, Srikakulam district. ..Plaintif And : Kanithi Gangadharam son of late Rajanna, aged about 53 years, Hindu, cultivation, resident of Gopivallabhapuram village,Tekkalipatnam post, Palasa mandal, Srikakulam district, Andhra Pradesh.

..Defendant.

This appeal is coming on 04.03.2022 for final hearing before me in the presence of Sri P.G.Rajaratnam, learned Advocate for the

Appellant/Defendant and of Sri D.Jagannaikulu, learned Advocate for the respondent/Plaintif and upon hearing their arguments and matter having stood over for consideration till this day, this Court delivered the following:

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J U D G M E N T

01.This appeal is directed against the decree and judgment,

dated 9th day of October, 2017 passed in O.S. No.85/2010 on the file of

learned Junior Civil Judge, Tekkali.

The Respondent herein is the plaintif in O.S.No.85/2010 before the trial court filed the suit for recovery of money based on the promissory note dt. 15.11.2008 against the Appellant who is defendant in the said suit OS No.85/2010.

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

the defendant for the purpose of liquidation of his sundry debts, borrowed an amount of Rs.70,000/- from the plaintif on 15.11.2008 agreeing to repay the same with interest at Rs.1.50 per hundred per month i.e., 18% per annum and executed a demand promissory note on 15.11.2008 infavour of the plaintif after receiving the cash consideration. Later, inspite of repeated demands made by the plaintif, the defendant did not pay the amount due under the pronote. Hence, the plaintif got issued a legal notice dt.05.07.2010 to the defendant demanding him to pay the amount due under the pronote. Having received the said notice, the defendant got issued a reply legal notice dt.16.7.2010 with false and untenable allegations. Therefore, the plaintif filed the suit for recovery of amount due under the suit promissory note.

03.The defendant filed his written statement and denied the material allegations of the plaint.

He contended that the defendant never executed the pronote on 15.11.2008 and so it is rank forgery. He had money 3 transaction from 26.01.1997 to 21.03.2000 with the father of the plaintif by name Laxmana Murthy and he has cleared all debts which were written in the note book, as such the defendant is not indebted to the plaintif even a single rupee. The defendant did not sell the paddy etc., to the father of the plaintif, though he has requested him to sell the paddy due to the attending circumstances. The father of plaintif bore grudge against the defendant and got filed the suit through the plaintif.

The suit is not maintainable under law.

04.Basing on the averments of the plaint and the written statement, the trial Court settled the following issues for trial:

1. Whether the plaintif is entitled for suit amount against the defendant as prayed for?

2. Whether the suit pronote is true and correct one?

3. Whether the suit pronote is supported by consideration?

4. To what relief?

05.Before the trial Court, P.Ws.1 to 3 were examined and Ex.A1 to

Ex.A3 were marked on behalf of plaintif. On behalf of defendant, Dws 1 and 2 were examined and no documents marked on his behalf, before the trial court.

06.The trial Court after considering the evidence of both the parties, decreed the suit, with costs.

07.Aggrieved by the decree and judgment of the trial Court, the present appeal is filed by the appellant/defendant with the following grounds of appeal.

i) The decree and judgment passed by the lower Court is contrary to law, weight of evidence and probabilities of the case.

4 ii) The trial Court ought to have seen that the evidence of PW1 and PW2 did not inspire confidence and that the execution of Ex.A1 is not genuine and also endorsement on the back of Ex.A1 marked as

Ex.A2 dt.23.12.2010.

iii) The trial Court ought to have disbelieved the evidence of PW1 and PW2.

iv).The lower court without proper appreciation of the material on record, erroneously decreed the suit and thereby the appellant/ defendant prayed for setting aside the decree and judgment of the lower court.

08.The parties are referred as plaintif and the defendant as they are arrayed in the suit before the lower Court.

09.Considering the contentions of both the parties, the following point is framed for determination.

“Whether the decree and judgment, dated

09.10.2017 passed in O.S. No.85/2010 by the

learned Junior Civil Judge, Tekkali warrant any

interference in this appeal?

10.ARGUMENTS

The learned counsel for the appellant/defendant argued that, at the time of execution of Ex.A1, pronote the plaintif was not present, therefore the very of execution of pronote is not maintainable under law., that, PW2 is the attestor of Ex.A1, was not present at the time of execution of Ex.A1 and he came after the scribe prepared Ex.A1, Ex.A2, endorsement was not signed by the scribe or attested by any of the attestor and hence the entire execution of Ex.A1 is not proved by the respondent/plaintif and it is not binding on the appellant/defendant. He further argued that, the defendant/appellant never executed anypronote dt.15.11.2008 and it is a rank forgery and prays to allow the appeal.

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On the other hand, the learned counsel for the respondent/plaintif argued that, the trial court having gone through the material available on record and after elaborate discussion on all the issues, rightly decreed the suit and hence nothing warranting this court to interfere into the findings of the trial court and prays to dismiss the appeal.

11.POINT : In order to substantiate the claim of plaintif/respondent she was examined as PW1 and she deposed in her evidence about the execution of Ex.A1 by the defendant/appellant in the presence of attestor/PW2 and scribe/PW3. The PW2 and PW3 supported the case of plaintif/respondent about the execution of

Ex.A1and passing of consideration.

The scribe of Ex.A1, pronote was examined as PW2. In the cross examination of PW2, he stated that, by the time he went to the house of plaintif’s parents,Ex.A1 was scribed. He only signed on the document and he do not know its contents. The counsel for the appellant/defendant contended that, since the scribe was not present at the time of execution of Ex.A1, pronote, the very execution of Ex.A1 is not proved. It is a settled law that, promissory note is not a compulsorily attestable document. Therefore, even if the attestor was present at the time of execution of Ex.A1 or not is not a ground to deny the very execution of Ex.A1. Hence, the burden under Sec.101 of

Indian Evidence Act is proved by the respondent/plaintif.

12.At this juncture, the learned counsel for the respondent/plaintif relied on a decision reported in 2001(2) A.P.L.J.

419(H.C.) in between D.Seshagiri Rao and K.Venkateswara Rao,

wherein the Hon’ble High Court has held ; 6 “ Negotiable Instrument Act, 1881, Secs.4, 20 and 42 –

A document will be a promissory note if (a) it is in writing (b) with unconditional undertaking to pay (c) signed by the maker and (d) in favour of certain person. If the document satisfies the requirements a,b and c, it creates a genuine claim in favour of the holder. If the defendant disputes and alleges that the document was a forgery the burden is on the defendant to establish his assertion in view of the presumption under

Sec.118, Negotiable Instruments Act.

13.On perusal of Ex.A1, it is in writing, there is an unconditional undertaking to pay and signed by the maker/PW2 in favour of Patnana

Kumari, the plaintif herein. Therefore, Ex.A1 satisfies the requirements of a,b and c and hence it creates a genuine claim in favour of the holder.

Therefore, the above referred citation is aptly applicable to the facts of the case on hand.

2) The learned counsel for the respondent/plaintif relied on another decision reported in 2008(7) Supreme Court Cases 655 in

between Mallavarapu Kasivisweswara Rao Vs. Thadikonda

Ramulu Firm and others, wherein it was held ; “ Sec.118(1) Presumption of consideration – Held :

Initial burden is on the defendant to show that existence of consideration was improbable or doubtful or illegal. If this burden is discharged, onus shifts on plaintiff. If, however, defendant fails to discharge initial burden, the plaintiff is invariably entitled to benefit of the presumption. Mere denial of consideration is not sufficient to discharge the initial burden. Something probable has to be brought on record to 7 prove non-existence of consideration. ON facts, execution of pronto proved.

The above referred is aptly applicable to the present case on hand.

In this case, the defendant failed to discharge his initial burden of consideration was improbable or doubtful or illegal. The respondent/plaintif is entitled to benefit of presumption under

Sec.118(1) of the Negotiable Instrument Act.

14.The appellant/ defendant has taken plea of forgery. The defendant/appellant filed I.A.291/2012 in OS 85/2010 before the trial court under Sec.45 of Indian Evidence Act to send the Ex.A1 to the handwriting expert for his opinion. The said petition was dismissed on 30.04.2013. Against which the appellant/defendant filed civil revision petition No.4922 of 2013 before the Hon’ble High Court of A.P., and the same was dismissed, directing the defendant/appellant to file afresh petition within a period of one month for the same relief. The appellant/defendant filed IA 30/2015 in OS 85/2010 before the trial court under Sec.45 of Indian Evidence Act, the said petition was dismissed on the ground that the appellant/defendant has not complied the orders of the Hon’ble High Court. Against which no revision is filed by the appellant/defendant.

Therefore, the the statutory presumption under Sec.118 of

the Negotiable Instrument Act to the effect that Exs.A1 is

supported by consideration and it is genuine is in favour of the

plaintiff. ThepresumptionSec.118 of the Negotiable Instrument Act, is a rebut table presumption and the burden is shifted onto the defendant/appellant to rebut the said statutory presumption either by 8 producing oral/documentary/direct/indirect evidence. In order to prove the same, the defendant himself examined as DW1 and also examined one Palina Mallesu as DW2. But their evidence is not supporting the pleas taken by the defendant/appellant and hence no much credence can be given to their evidence. The plea of forgery is not proved by the appellant/defendant.

In view of my above discussion, I am of the opinion that, the trial court rightly appreciated the oral and documentary evidence and rightly decreed the suit and there is nothing warranting this court to interfere into the findings given by the trial court in its judgment. Accordingly, this point is answered.

15.In the result, this appeal is dismissed with costs, confirming the decree and judgment dated 09.10.2017 passed in O.S. No. 85/2010 on the file of Junior Civil Judge, Tekkali.

Typed by the Stenographer Grade-I on my dictation, corrected and

pronounced by me in the open Court, this the 8th day of March, 2022.

VI ADDITIONAL DISTRICT JUDGE,

SOMPETA.

Copy to the Junior Civil Judge, Tekkali (Along with lower court record).

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