Smt. Soni Dwarampudi

C.C.No.147/2022 Page 1 of 9 Dt.14.02.2023

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: BHIMAVARAM

Present: Dr. Soni Dwarampudi,

Principal Junior Civil Judge-cum-

Judicial Magistrate of First Class, Bhimavaram

Tuesday, this the 14 th day of February, 2023

CALENDER CASE No: 147 of 2022

Between :

The State rep., by its Enforcement Inspector, Special Enforcement Bureau Station, Akividu.

...Complainant

and

Chitakana Bala Krishna, S/o. Sri Ramulu, Age: 37 years, C: Gowda, Pedamiram Village, Kalla Mandal, West Godavari District.

... Accused

This case came up before me for final hearing on 10.02.2023 in the presence of the Assistant Public Prosecutor for the State, and Sri S. Naga Babu, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau (for short, ‘S.E.B.’), Akividu Station, filed a charge sheet in

Cr.No.152/2021 for the offence punishable under Section 7 (b) r/w 8 (b) of Andhra Pradesh Prohibition (Amendment) Act, 2020 (for short, ‘the Prohibition Act’) against the accused.

02. The conspectus of the case of prosecution is that:

On 14.12.2021, at about 08:00 a.m, PW.1-Enforcement Sub-

Inspector, Divisional Task Force (for short, ‘D.T.F.’), Bhimavaram, along with his staff members while conducting patrolling near

Peddamiram Village limits of Kalla Mandal, noticed the accused in

C.C.No.147/2022 Page 2 of 9 Dt.14.02.2023 possession of one liter of illicit distilled liquor kept in plastic bottle.

On questioning, the accused confessed that he purchased the above

I.D. liquor from an unknown person in Vivarampadu Village of

Krishna District and brought to his house to sell the same for profit.

Then, PW.1 explained the accused about possession and selling of

I.D. liquor is offence as per Prohibition Act, arrested the accused and seized the contraband from the possession of accused, drawn 1 liter of I.D. liquor as sample for chemical analysis, affixed identity slips on it, duly signed by the officers and the signature of the accused under the cover of special report drafted at the scene.

Later, PW.1 returned to S.E.B. Station, Akividu along with property and accused, registered the said special report as a case in Cr.

No.152/2021 for the offence under Section 7 (b) r/w 8 (b) of the

Prohibition Act. During the course of investigation, PW.2-

Enforcement Inspector, SEB, Akividu observed all formalities and produced the accused before the court for judicial remand. Later, he sent the sample for chemical examination. On receipt of chemical analysis report and after completion of investigation, he filed charge sheet. Hence, the charge.

03.On receipt of charge sheet, this case was taken on file for the offence under Section 7(b) r/w 8(b) of the Prohibition Act, against the accused.

04.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal

Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 7(b) r/w 8(b) of the

C.C.No.147/2022 Page 3 of 9 Dt.14.02.2023

Prohibition Act, which was read over and explained to him in

Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined, Exs.P1 to P3 and MO.1 were exhibited.

07.On closure of evidence let in by the prosecution, the accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for accused.

a)The learned Assistant Public Prosecutor argued that the evidence of PWs.1 and 2 coupled with Exs.P1 to P3 and MO.1 goes to show that the accused had committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which are infirmities. Hence, prays to acquit the accused on the ground of benefit of doubt.

09.The point for determination is :

“Whether the prosecution is successful in bringing

home the guilt of accused for the charge framed

against him under Section 7(b) r/w 8(b) of the

Prohibition Act, beyond all reasonable doubt?”

10. POINT:

a)PW.1 is the then Enforcement Sub-Inspector, DTF,

Bhimavaram and PW.2 is the Enforcement Inspector, SEB Station,

C.C.No.147/2022 Page 4 of 9 Dt.14.02.2023

Akividu. PW.1 deposed that on 14.12.2021 at 08:00 a.m, he along with his staff proceeded to Pedamiram Village to conduct patrolling and when they reached near Vinayaka Swamy Temple of Pedamiram

Village, they found the accused in possession of one plastic bag in suspicious circumstances; that on seeing them, he tried to skulk away and immediately he apprehended him with the help of his staff, on enquiry, the accused stated that he is in possession of I.D.

liquor as such he is trying to escape and that he is taking the ID liquor for sale for profit. PW.1 further stated that though he tried to secure mediators through LW.2-M.B.A. Sharieff, Head Constable,

DTF, Bhimavaram, none came forward to act as mediators and as such, he prepared Ex.P1 – Special report and seized one liter bottle containing I.D. Arrack from the possession of accused, drawn sample of 300 ml as sample into a separate bottle, marked as MO.1 and took the accused along with property to S.E.B. Station, Akividu.

b)PW.2, who is Enforcement Inspector, SEB Station,

Akividu deposed that based on Ex.P1 – Special report, he registered a case in Cr. No.152/2021 under Section 7(b) r/w 8(b) of the

Prohibition Act, issued Ex.P2 – Original FIR, and on the same day sent the accused to court for judicial remand. He further deposed that he forwarded MO.1 to Government Chemical examiner for analysis, who opined that the seized sample is ‘Illicit Distilled liquor and not fit for human consumption’ vide Ex.P3 – Chemical analysis report and filed charge sheet. PW.1 stated during cross-examination that the scene of offence is busy locality and no persons came forward to act as mediators. PW.1 further stated that he has not personally summoned any village officials.

c) In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of

PW.1, at the time of arrest and seizure, the accused was found in possession of one liter of I.D. liquor and he arrested the accused

C.C.No.147/2022 Page 5 of 9 Dt.14.02.2023 and seized the contraband under cover of Ex.P1-Special report.

Admittedly, the alleged offence is situated at Vinayaka Swamy

Temple of Pedamiram Village, which is a busy locality. As per the case of prosecution though, PW.1 tried to secure the mediators, but none were came forward to act as mediators for the seizure of contraband.

d)When the place of offence is a busy locality where there is movement of the public and there is a possibility to public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.1 could not say the names of the persons whom approached to act as the mediators and stated that they have not served notices to any persons or village officials to act as mediators. In such circumstances, the testimonies of P.Ws.1 and 2 cannot be relied upon as they are highly interested for getting the success of prosecution. All these facts lead to inference that the excise officials have failed to secure two or more independent or respectable inhabitants of the locality during seizure of contraband.

Consequently, the seizure of contraband as alleged from Ex.P1 -

Special report stands vitiated.

e)Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis was found to be Illicit Distilled Liquor, but it is for the prosecution to establish that MO.1 referred to chemical analysis was seized from the possession of the accused, which the prosecution failed to prove.

f) In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of

C.C.No.147/2022 Page 6 of 9 Dt.14.02.2023 prosecution. Except the evidence of PWs.1 and 2 who are excise officials and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this court is inclined to hold a considered view that the prosecution failed in bringing home the guilt of the accused for the charge framed against him under Section 7(b) r/w 8(b) of Andhra Pradesh Prohibition (Amendment) Act, 2020, and hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

11. In the result, the accused is found not guilty of the offence punishable under Section 7(b) r/w 8(b) of Andhra Pradesh

Prohibition (Amendment) Act, 2020. Accordingly, he is acquitted under section 248(1) Cr.P.C. His bail bonds shall stand cancelled.

The accused shall furnish a bond under Section 437-A Cr.P.C, that he shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property i.e.,

MO.1 – Sample bottle of I.D. liquor is ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Stenographer Grade-III of this Court, corrected and pronounced by me in the open Court, on this the 14 th day of February, 2023.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- For Defence:-

PW.1:M. Rama Swamy, Enforcement None

C.C.No.147/2022 Page 7 of 9 Dt.14.02.2023

Sub-Inspector, DTF, Bhimavaram. PW.2:D. Rama Rao, Enforcement Inspector, SEB, Akividu.

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1:Special report Nil.

Ex.P2:Original FIR

Ex.P3:Analysis report.

MATERIAL OBJECTS

M.O.1:Sample bottle of I.D. liquor.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

C.C.No.147/2022 Page 8 of 9 Dt.14.02.2023

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: BHIMAVARAM.

C.C. No. 147/2022

1.Date of Offence :14.12.2021

2.Date of Complaint:14.12.2021

3.Apprehension of Accused:14.12.2021

4.Commencement of Trial :03.02.2023

5.Closure of Trial:03.02.2023

6.Judgment:14.02.2023

7.Complainant:The State rep., by its Enforcement Inspector, SEB, Akividu

8.Name of accused :Chitakana Bala Krishna, S/o. Sri Ramulu, Age: 37 years, C: Gowda, Pedamiram Village, Kalla Mandal, West Godavari District.

9.Offence:U/Sec.7(b) r/w 8(b) of Andhra Pradesh Prohibition (Amendment) Act, 2020.

10.Plea of accused:NOT GUILTY

11.Finding:NOT GUILTY

12.Sentence or Order :

In the result, the accused is found not guilty of the offence punishable under Section 7(b) r/w 8(b) of Andhra Pradesh Prohibition (Amendment) Act, 2020. Accordingly, he is acquitted under section 248(1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437- A Cr.P.C, that he shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property i.e., MO.1 – Sample bottle of I.D. liquor is ordered to be destroyed on lapse of appeal time.

13.Explanation for delay:

Originally, the case was taken on file for the offences under Section 7(b) r/w 8(b) of Andhra Pradesh Prohibition (Amendment) Act, 2020 against the accused. Copies of documents were furnished to the accused on 30.06.2022. On 08.07.2022, he was examined U/Sec.240 (2) Cr.P.C. On

C.C.No.147/2022 Page 9 of 9 Dt.14.02.2023 03.02.2023, PWs.1 and 2 were examined and Exs.P1 to P3 and MO.1 were marked and on the same day, prosecution evidence was closed. The accused was examined u/s.313 Cr.P.C., on 08.02.2023. Heard arguments both sides on 10.02.2023. Judgment is pronounced on 14.02.2023. Hence, the delay.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

Copy submitted to :

The Hon'ble I Addl. District & Sessions Judge, Eluru, West Godavari.

C.C.No.339/2022 Page 1 of 9 Dt.14.02.2023

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: BHIMAVARAM

Present: Dr. Soni Dwarampudi,

Principal Junior Civil Judge-cum-

Judicial Magistrate of First Class, Bhimavaram

Tuesday, this the 14 th day of February, 2023

CALENDER CASE No: 339 of 2022

Between :

The State rep., by its Enforcement Inspector, Special Enforcement Bureau Station, Akividu.

...Complainant

And

Nakka Mutyalu, S/o. Venkanna, Age: 41 years, C: Kapu, R/o. Aredu Village, Undi Mandal, West Godavari District.

... Accused

This case came up before me for final hearing on 09.02.2023 in the presence of the Assistant Public Prosecutor for the State, and Sri P.Raja Rao, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau,

Akividu Station, filed a charge sheet in Cr.No.71/2022 for the offence punishable under Section 34 (a) of the Andhra Pradesh

Excise (Amendment) Act, 2020 (for short, ‘Excise Act’) against the accused.

02. The conspectus of the case of prosecution is that:

On 24.08.2022, at 07:00 p.m, the PW.2-Enforcement Sub-

Inspector, D.T.F., (for short, ‘Divisional Task Force’),

Bhimavaram, along with his staff member and Aredu V.R.O. (PW.1)

C.C.No.339/2022 Page 2 of 9 Dt.14.02.2023 while conducting patrolling near Aredu Village of Undi Mandal, noticed the accused in possession of a white bag containing liquor bottles without any bill or permit. Then, PW.2 detained him and checked the bag in presence of mediator-PW.1, found 12 bottles of duty paid liquor i.e., Southern Blue Supreme Whisky 180 ml each – 11 nos. and Andhra Gold Superior Whisky 180 ml each – 01 bottle in that bag. On enquiry, the accused confessed that he purchased the above liquor bottles at different wine shops in Undi Mandal and taking them to his house for selling at higher price to get profit.

PW.2 explained to the accused that about possession and transportation of more than three liquor bottles or selling them without permit or license is an offence as per the provision of

Andhra Pradesh Excise (Amendment) Act, 2020. Later, PW.2 seized the case property, drawn two bottles as sample from each brand for chemical analysis, affixed identity slips on the sample bottle and the remaining liquor bottles duly signed by the officers and signature of accused under cover of mediators report drafted at the spot. On 24.08.2022, PW.3 registered the said mediators report as a case in

Cr. No.71/2022 for the offence under Section 34 (a) of the Andhra

Pradesh Excise (Amendment) Act, 2020. During the course of investigation, he observed all formalities and produced the accused

before the court for judicial remand. Later, he sent the sample for

chemical examination. On receipt of chemical analysis report and after completion of investigation, he filed charge sheet. Hence, the charge.

03.On receipt of charge-sheet, this case was taken on file for the offence under Section 34 (a) of the Andhra Pradesh Excise (Amendment) Act, 2020, against the accused.

04.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal

C.C.No.339/2022 Page 3 of 9 Dt.14.02.2023

Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 34 (a) of the Andhra

Pradesh Excise (Amendment) Act, 2020, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, PWs.1 to 3 were examined, Exs.P1 to P3 and MOs.1 and 2 were exhibited.

07.On closure of evidence let in by the prosecution, the accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for accused.

09.The point for determination is :

“Whether the prosecution is successful in bringing

home the guilt of accused for the charge framed

against him under Section 34 (a) of the Andhra

Pradesh Excise (Amendment) Act, 2020, beyond all

reasonable doubt?”

10. POINT:

a)PW.1 is the Village Revenue Officer, who acted as mediator, and PW.2 is the Enforcement Sub-Inspector, D.T.F.,

Bhimavaram, who conducted patrolling. Both of them unequivocally deposed that on 24.08.2022 at 07:00 p.m., on receiving credible

C.C.No.339/2022 Page 4 of 9 Dt.14.02.2023 information, Enforcement Sub-Inspector, D.T.F., Bhimavaram (PW.2) along with his staff, secured the presence of PW.1-V.R.O. as mediator, went to Aredu Village and when they reached near the house of accused in Aredu village, they found the accused in possession of a plastic bag in suspicious circumstances, and on seeing them he tried to skulk away and that PW.1 apprehended the accused with the help of his staff and on enquiry, the accused stated that he is in possession of liquor bottles as such he is trying to escape; that he did not give any reply with regard to the source of liquor bottles; that he does not have bills of the liquor bottles and that he is taking the liquor bottles for sale at this staff and that

PW.1 opened the bag and found six liquor bottles, seized the 12 liquor bottles i.e., (1) Southern Blue Supreme Whisky with a capacity of 180 ml each – 11 nos. and (2) Andhra Gold Superior

Whisky with a capacity of 180 ml each from the possession of accused in presence of mediator under cover of mediator report which is marked as Ex.P1, dated 24.08.2022 bearing his signature and that PW.2 drawn one bottle as sample from each variety and which are marked as MOs.1 and 2 and took the property along with accused to S.E.B. (for short, ‘ Special Enforcement Bureau ’),

Station, Akividu and handed over the same PW.3, Enforcement

Inspector, SEB Station, Akividu.

b)PW.3 deposed that based on Ex.P1 – mediators report, he registered a case in Cr. No.71/2022 under Section 34 (a) of A.P. Excis (Amendment) Act and issued Ex.P2 – Original FIR, and on the next day, he sent the accused to court for judicial remand.

He further deposed that on 03.09.2022 he forwarded MOs.1 and 2 to Government Chemical examiner for analysis and received report on 14.09.2022 in which it was opined that the seized samples are ‘Indian Made Liquor’ vide Ex.P3 – Chemical analysis report and filed charge sheet. PW.1 during his cross-examination admitted that he

C.C.No.339/2022 Page 5 of 9 Dt.14.02.2023 did not obtain written permission from his superior authorities to accompany PW.2 to act as mediator and the scene of offence is a busy locality.

c) In order to prove the case of prosecution, the prosecution has examined PWs.1 to 3. As per the evidence of PW.2, at the time of arrest and seizure, the accused was found in possession of 11 liters of duty paid liquor and he arrested the accused and seized the contraband under cover of Ex.P1-Mediators report.

d)Apropos, the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 - analysis report only speak about the facts. The analysis report for chemical analysis shows that MOs.1 and 2 are Indian made liquor, but it is for the prosecution to establish that such samples referred to chemical analysis were seized from the possession of the accused. With regard to sending of duty paid liquor for testing, PW.2 seized MOs.1 and 2 on 24.08.2022 and PW.3 sent the same on 03.09.2022 for analysis. Thus, there is a delay of 10 days. This delay was not at all explained by PW.3, who sent the sample.

e) In this context, it is imperative to refer the judgment of the Hon'ble High Court of Andhra Pradesh in the following case :

Ratnala Brundavanam vs. State of A.P.

reported in 2004(1) ALD (Crl.) 905

“If abnormal delay in sending the sample to

analyst is not explained, the accused is

entitled for benefit of doubt.”

C.C.No.339/2022 Page 6 of 9 Dt.14.02.2023

In the case on hand, PW.3 has not explained as to why he could not send the sample bottles for chemical analysis till 03.09.2022, which casts a serious doubt upon the case of prosecution.

f) In view of the above decision, it can be rightly concluded that mere registering the crime and securing the analysis report in favour of the prosecution by itself does not prove the case of prosecution. Consequently, this court is inclined to hold a considered view that the prosecution failed in bringing home the guilt of the accused for the charge framed against him under

Section 34 (a) of A.P. Excise (Amendment) Act, 2020, and hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

11. In the result, the accused is found not guilty of the offence punishable under Section 34 (a) of A.P. Excise (Amendment) Act, 2020. Accordingly, he is acquitted under section 248(1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A Cr.P.C,that he shall appear before the

Appellate Court, in the event he receives summons within the six months from today. The case property i.e., MOs.1 and 2 – Sample bottles are ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Stenographer Grade-III of this Court, corrected and pronounced by me in the open Court, on this the 14 th day of February, 2023.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

C.C.No.339/2022 Page 7 of 9 Dt.14.02.2023

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- For Defence:-

PW.1 : B. Srinivasa Rao, VRO. None

PW.2 : M. Rama Swamy, Enforcement S.I., DTF, Bhimavaram. PW.3 : D. Rama Rao, Enforcement Inspector, SEB, Akividu.

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 : Mediator report Nil.

Ex.P2 : Original FIR

Ex.P3 : Analysis report.

MATERIAL OBJECTS

M.O.1 : Sample bottle of Southern Blue Supreme Whisky.

M.O.2 : Sample bottle of Andhra Gold Superior Whisky.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

C.C.No.339/2022 Page 8 of 9 Dt.14.02.2023

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: BHIMAVARAM.

C.C. No. 339/2022

1. Date of Offence : 24.08.2022

2. Date of Complaint: 24.08.2022

3. Apprehension of Accused : 24.08.2022

4. Commencement of Trial : 03.02.2023

5. Closure of Trial: 03.02.2023

6. Judgment: 14.02.2023

7. Complainant: The State rep., by its Enforcement Inspector, SEB Station, Akividu.

8. Name of accused : Nakka Mutyalu, S/o. Venkanna, Age: 41 years, C: Kapu, R/o. Aredu Village, Undi Mandal, West Godavari District.

9. Offence: U/Sec.34(a) of A.P. Excise (Amendment) Act, 2020.

10. Plea of accused: NOT GUILTY

11. Finding: NOT GUILTY

12. Sentence or Order :

In the result, the accused is found not guilty of the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020. Accordingly, he is acquitted under section 248(1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A Cr.P.C, that he shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property i.e., MOs.1 and 2 – Samples bottle of liquor are ordered to be destroyed on lapse of appeal time.

13. Explanation for delay:

Originally, the case was taken on file for the offences under Section 34(a) of A.P. Excise (Amendment) Act, 2020 against the accused. Copies of documents were furnished to the accused on 03.01.2023. On 09.01.2023, he was examined U/Sec.240 (2) Cr.P.C. On 03.02.2023, PWs.1 to 3 were examined and Exs.P1 to P3 and MOs.1 and 2 were marked and on the same day,

C.C.No.339/2022 Page 9 of 9 Dt.14.02.2023 prosecution evidence was closed. The accused was examined u/s.313 Cr.P.C., on 08.02.2023. Heard arguments both sides on 09.02.2023. Judgment is pronounced on 14.02.2023. Hence, the delay.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

Copy submitted to :

The Hon'ble I Addl. District & Sessions Judge, Eluru, West Godavari.

C.C.No.300/2022 Page 1 of 8 Dt.14.02.2023

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS::BHIMAVARAM

Present: Dr. Soni Dwarampudi,

Principal Junior Civil Judge-cum-

Judicial Magistrate of First Class, Bhimavaram

Tuesday, this the 14 th day of February, 2023

CALENDER CASE No: 300 of 2022

Between :

The State: Rep., by its Enforcement Inspector, Special Enforcement Bureau Station, Akividu. … Complainant

And

Godi Suvarna Raju, S/o. Esmail, Age: 42 years, SC (Mala), Doddanapudi (V), Kalla (M). West Godavari District.

... Accused

This case came up before me for final hearing on 10.02.2023 in the presence of the Assistant Public Prosecutor for the State, and of Sri V.Srinivas Rao, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01. The Enforcement Inspector, Special Enforcement Bureau Station,

Akividu Station, filed a charge sheet in Cr.No.46/2022 for the offence punishable under Section 34 (a) of the Andhra Pradesh Excise (Amendment) Act, 2020 (for short, ‘Excise Act’) against the accused.

02. The conspectus of the case of prosecution is that:

On 14.05.2022, at about 07:30 a.m., the Enforcement

Inspector, S.E.B. Station, Akividu (PW.1), along with his staff while conducting patrolling in Kalla Village of Kalla Mandal and reached near

Santha Market Road margin of Kalla village, noticed the accused in possession of five (05) liquor bottles of 9 Sea Horses Whisky with capacity of 180 ml each in a mica bag without any bills or permit. On enquiry, the accused confessed that he purchased the said liquor bottles

C.C.No.300/2022 Page 2 of 8 Dt.14.02.2023 at Government wine shops and taking the same to his house for selling at higher price to get profit. Then, he explained the accused about possession and transportation of more than three liquor bottles without permit or license is an offence as per the provisions of A.P. Excise (Amendment) Act, 2020 and arrested him. Then, he returned to Special

Enforcement Bureau Station, Akividu along with accused and case property and registered the said special report as a case in Cr.

No.46/2022 for the offence under Section 34 (a) of the Excise Act.

During the course investigation, he sent the sample for chemical examination and the remaining case property was confiscated as per the proceedings of the Deputy Commissioner, Vijayawada. On receipt of chemical analysis report and after completion of investigation, he filed charge sheet. Hence, the charge.

03. On receipt of charge sheet, this case was taken on file for the offence under Section 34 (a) the Excise Act, against the accused.

04. On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05. When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 34 (a) of the Excise Act, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06. During the course of trial, on behalf of the prosecution, PW.1 was examined out of the two cited witnesses in the charge sheet, Exs.P1 to

P3 and MO.1 were exhibited. The evidence of LW2 – M. Siva Krishna,

Constable is given up by the prosecution.

C.C.No.300/2022 Page 3 of 8 Dt.14.02.2023

07. On closure of evidence let in by the prosecution, the accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08. Heard arguments of Assistant Public Prosecutor and the counsel

for accused.

a) The learned Assistant Public Prosecutor argued that the evidence of PW.1 coupled with Exs.P1 to P3 and MO.1 goes to show that the accused had committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b) The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which are an infirmity. Hence, prays to acquit the accused on the ground of benefit of doubt.

09. The point for determination is :

“Whether the prosecution is successful in

bringing home the guilt of accused for the

charge framed against him under Section 34 (a)

of the Excise Act, beyond all reasonable doubt?”

10. POINT:

a)PW.1 is the Enforcement Inspector, Special Enforcement

Bureau Station, Akividu, deposed that on 14.05.2022 at 07:30 a.m., he along with his staff proceeded to Kalla village to conduct patrolling and when they reached near market road margin of Kalla village, found the accused in possession of a hand bag in suspicious circumstances and the accused tried to skulk away on seeing them; that immediately, he apprehended the accused with the help of his staff. PW.1 further deposed that on enquiry, the accused stated that he is in possession of liquor bottles without any bill as such he is trying to escaping, and that he did not give any reply with regard to the source of liquor bottles and

C.C.No.300/2022 Page 4 of 8 Dt.14.02.2023 taking the said liquor bottles for sale at his village. PW.1 further stated that though he tried to secure mediators through LW.2-M. Siva Krishna,

Constable, none came forward to act as mediators and as such, he prepared Ex.P1 – Special report and seized 05 (five) bottles of 9 Sea

Horses Whisky with a capacity of 180 ml. each, drawn one sample bottle marked as MO.1 and took the property along with accused to Special

Enforcement Bureau Station, Akividu.

b) PW.1 also deposed that he registered a case in Cr.

No.46/2022, under Section 34 (a) of A.P. Excise (Amendment) Act, and issued Ex.P2 – FIR and on 06.06.2022, he sent the sample to

Government Chemical Examiner for analysis and received the analysis report from Chemical Examiner, who opined that the sample is ‘Indian

Made Liquor’ under Ex.P3 - Analysis Report. He further deposed that the remaining bottles of liquor seized from the accused are confiscated as per the proceedings of his superior authorities and after completion of investigation, he filed charge-sheet.

c) PW.1 stated during the cross-examination that the scene of offence is busy locality and he has not personally summoned any village officials. He denied the suggestions that the contraband was not seized from the possession of accused, as alleged and that this case is filed for statistical purpose only.

d) In order to prove the case of prosecution, the prosecution has examined only PW.1. As per the evidence of PW.1, at the time of arrest and seizure, the accused was found in possession of seized five (05) liquor bottles as detailed above, arrested the accused and seized the contraband under cover of Ex.P1 - Special report.

Admittedly, the alleged offence is situated near market of Kalla Village, which is busy locality. As per the case of prosecution though PW.1 tried to secure the mediators, none came forward to act as mediators for the seizure of contraband.

C.C.No.300/2022 Page 5 of 8 Dt.14.02.2023

e) When the place of offence is busy locality where there is movement of public and there is a possibility to public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.1 could not say the names of the persons whom approached to act as the mediators and stated that he has not served notices to any persons or village officials to act as mediators. In such circumstances, the sole testimony of PW.1 cannot be relied upon as he is highly interested for getting the success of prosecution. All these facts lead to inference that the excise officials have failed to secure two or more independent or respectable inhabitants of the locality during seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 - Special report stands vitiated.

f) Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis was found to be ‘Indian

Made Liquor’, but it is for the prosecution to establish that MO.1 referred to chemical analysis was seized from the possession of the accused, which the prosecution failed to prove.

g) In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PW.1, who is excise official and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this court is inclined to hold a considered view that the prosecution failed in bringing home the guilt of the accused for the charge framed against the accused under Section 34 (a) of the Excise Act, and hence, accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

C.C.No.300/2022 Page 6 of 8 Dt.14.02.2023

11. In the result, accused is found not guilty of the offence punishable under Section 34 (a) of the Excise Act. Accordingly, he is acquitted under section 248 (1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A Cr.P.C. that he shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property MO.1 is ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Stenographer Grade-III of this Court, corrected and pronounced by me in the open Court, on this the 14 th day of February, 2023.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-

PW.1 – D. Rama Rao, Enforcement Inspector, SEB, Akividu.

For Defence:-

None

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 : Special report prepared by P.W.1. --Nil-- Ex.P2 : Original FIR Ex.P3 : Analysis report.

MATERIAL OBJECTS

M.O.1: - Sample bottle of Good Friend Deluxe Whisky.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

C.C.No.300/2022 Page 7 of 8 Dt.14.02.2023

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: BHIMAVARAM.

C.C. No. 300/2022

01. Offence : 14.05.2022

02. Filing: 14.05.2022

03. Apprehension of Accused : 14.05.2022

04. Commencement of Trial : 27.01.2023

05. Closure of Trial : 27.01.2023

06. Judgment: 14.02.2023

07. Complainant: The State rep., Enforcement Inspector, SEB, Akividu

08. Name of accused : Godi Suvarna Raju, S/o. Esmail, Age: 42 years, SC (Mala), Doddanapudi (V), Kalla (M). West Godavari District.

09. Offence: U/Sec. 34 (a) of A.P. Excise Act.

10. Plea of accused : NOT GUILTY

11. Finding: NOT GUILTY

12. Sentence or Order : In the result, accused is found not guilty of the offence punishable under Section 34 (a) of the Excise Act.

Accordingly, he is acquitted under section 248 (1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A Cr.P.C. that he shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property-MO.1 is ordered to be destroyed on lapse of appeal time.

13. Explanation for delay : Originally, the case was taken on file for the offences under Section 34 (a) of AP Excise (Amendment) Act against the accused. Copies of documents were furnished to the accused on 09.01.2023. On 11.01.2023, he was examined U/Sec.240 (2) Cr.P.C.

On 27.01.2023, PW.1 was examined and Exs.P1 to P3 and MO.1 were marked and on the same day, prosecution evidence was closed. The

C.C.No.300/2022 Page 8 of 8 Dt.14.02.2023 accused was examined u/s.313 Cr.P.C., on 08.02.2023. Heard arguments of both sides on 10.02.2023. Judgment is pronounced on 14.02.2023. Hence, the delay.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS,

BHIMAVARAM

Copy submitted to:

The Hon'ble I Addl. District & Sessions Judge, Eluru, West Godavari.

O.S.No.72/2020 Page 1 of 8

Fair Copy Dt.13.02.2023

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE ::

BHIMAVARAM

Present: Dr. Soni Dwarampudi,

Principal Junior Civil Judge, Bhimavaram

Monday, the 13 th day of February, 2023

ORIGINAL SUIT No: 72 of 2020

Between:

1. Chikkala Ranga Rao (died), S/o. Venkanna, Hindu, Male, Aged 50 years, D.No. 2-36, Kapula Street, Konithiwada, Arya Vysya Kalyana Mandapam Street, Konithiwada, Veeravasaram Mandal.

2. Chikkala Nagamani, W/o. Ranga Rao, Hindu, Female, Aged 53 years, House Wife, D.No. 2-36, Kapula Street, Konithiwada, Arya Vysya Kalyana Mandapam Street, Konithiwada, Veeravasaram Mandal.

3. Chikkala Raja Kumar, S/o. Ranga Rao, Hindu, Male, Aged 36 years, D.No.2-36, Kapula Street, Konithiwada, Arya Vysya Kalyana Mandapam Street, Konithiwada, Veeravasaram Mandal.

4. Nedunuri Ratna Chandrika, W/o. Ramesh Kumar, Hindu, Female, Aged 34 years, House Wife, D.No. 15-3-6/170C, New Colony, 22nd Ward, Narsapuram, West Godavari District. (The plaintiffs 2 to 4 are added as per orders dated 08.03.2022 in

IA No. 1005/2021)

… Plaintiff

A n d

Pinisetti Ramakrishna, S/o. Narayana Swamy, Hindu, Male, Aged 47 years, Employee, D.No. 49-9-5, Near Saibaba Temple, Kothapeta, Palakole, Palakole Mandal. West Godavari District.

… Defendant

This suit came up on 07.02.2023 for final hearing before me in the presence of Sri K.V. Ramesh, Advocate for the plaintiff, and of Sri Y. Yohan, Advocate for defendants, and upon hearing both sides and considering the material on record and having stood over for consideration till this day, this court delivered the

O.S.No.72/2020 Page 2 of 8

Fair Copy Dt.13.02.2023 following :

J U D G M E N T

01. This is a suit filed for recovery of Rs.3,17,830/- being the amount of principal and interest due under promissory note, dt.02.12.2018 executed by the defendant in favour of 1st plaintiff for Rs.2,50,000/-, with subsequent interest @ 24% p.a. on principal amount of Rs. 2,50,000/- and for costs.

02. The necessary pleadings of both parties to the suit are narrated, succinctly, as follows :-

For plaintiffs :

a)On 02.12.2018, the defendant borrowed an amount of Rs.2,50,000/- from the 1st plaintiff for his family expenses and to discharge his sundry debts, agreeing to repay the same with interest at the rate of 24% p.a., on demand either to the 1st plaintiff or his order, the defendant executed the promissory note for an amount of Rs.2,50,000/-, in favour of the 1st plaintiff.

b) Inspite of repeated demands made by the 1st plaintiff, the defendant postponed for repayment on some pretext or other. Therefore, the 1st plaintiff filed the present sxuit against the defendant seeking recovery of money due under promissory note from the defendant. During pendency of the suit, as the 1st plaintiff died on 23.04.2021, the legal representatives of the 1st plaintiff are added as plaintiffs 2 to 4, as per orders dated 08.03.2021 in I.A.No.1005/2021.

For defendant :

While denying most of the allegations made in the plaint, the defendant contended that he did not borrow any

O.S.No.72/2020 Page 3 of 8

Fair Copy Dt.13.02.2023 amount from the 1st plaintiff and he has no personal acquaintance with 1st plaintiff, attestors and scribe and that the 1st plaintiff brought into existence of the alleged suit promissory note with the help of his henchmen with dishonest intention to cause wrongful loss to the defendant and to get wrongful gain. The defendant further submitted that the suit promissory note is a rank forged and fabricated document and the signature on suit promissory note does not belong to him. Hence, the 1st plaintiff is not entitled for recovery of money from the defendant and prays to dismiss the suit with costs.

03. As both the parties did not arrive at any settlement under

Section 89 of the Code of Civil Procedure, on the basis of pleadings of both parties, the following issues were initially framed:

1. Whether the suit promissory note dated 02.10.2018 is true, valid and binding ?

2. Whether the suit promissory note is forged as contended by the defendant ?

3. Whether the plaintiff is entitled for suit claim, as prayed for?

4. To what relief?

04. Subsequent to the death of 1st plaintiff, in view of addition of plaintiffs 2 to 4 as legal representatives and filing of additional pleadings, the issues framed earlier are re-casted as under :

1. Whether the suit promissory note dated 02.10.2018

is true, valid and binding on the defendant?

2. Whether the plaintiffs 2 to 4 are entitled for recovery of suit claim from the defendant, being

L.Rs. of deceased 1 st plaintiff, as prayed for?

3. To what relief?

O.S.No.72/2020 Page 4 of 8

Fair Copy Dt.13.02.2023

05. To substantiate their case, the 2nd plaintiff got examined herself as PW.1 and exhibited Ex.A1 on their behalf.

06. Inspite of granting reasonable opportunities and sufficient time, the defendant did not adduce evidence. Hence, defendant side evidence is closed.

07. Heard arguments of the counsel appearing for plaintiffs. As there is no representation on behalf of defendant inspite of granting several adjournments and conditional order, arguments on behalf of defendant are treated as heard.

08. In view of contentions put-forth by the plaintiffs and defendant as to their respective pleadings, now the issues are taken up for discussion in order to find out whether the plaintiffs established the suit claim.

09. Issue No.1: Whether the suit promissory note dated 02.10.2018 is true, valid and binding on the defendant?

a)In order to substantiate their case, the 2nd plaintiff got herself examined as PW.1 and got marked Ex.A1. It is the case of the plaintiffs that the defendant borrowed an amount of

Rs.2,50,000/- on 02.12.2018 under Ex.A1 - promissory note from 1st plaintiff and failed to repay the principal and interest on his demand; hence, the 1st plaintiff filed the present suit based on

Ex.A1 - promissory note. During pendency of the suit, the 1st plaintiff died intestate on 23.04.2021, leaving behind plaintiffs 2 to 4 as his legal heirs and they were impleaded as plaintiffs 2 to 4 as per orders dated 08.03.2022 in I.A. No.1005/2021 and they sought

O.S.No.72/2020 Page 5 of 8

Fair Copy Dt.13.02.2023 for recovery of suit debt from the defendant.

b)Per contra, the defendant raised contention in the written statement that the suit promissory note is forged document; and that he does not know the 1st plaintiff as well as the attestors and scribe of Ex.A1-promissory note. Though the defendant filed written statement, he did not adduce any evidence, so also the defendant did not turn up to cross-examine PW.1.

c)As the testimony of PW.1 remains unchallenged, though the defendant has set up a plea of forgery of his signature on Ex.A1 – promissory note, it remains un-established. On the other hand, PW.1 has categorically deposed about the execution of

Ex.A1 - promissory note by the defendant in favour of 1st plaintiff, and passing of consideration.

d) In view of the fact that except filing his written statement, the defendant did not turn up to cross examine PW1 and to adduce oral and documentary evidence, and on the other hand,as the evidence of PW.1 is very much consistent about the execution of Ex.A1 - promissory note and passing of consideration under the same to the defendant, the testimony of PW.1 supported by the documentary evidence is enough to draw the presumption under Section 118 of the Negotiable Instruments Act, 1881 in favour of the plaintiffs, as regards consideration.

e) Therefore, it is for the defendant to appreciate the presumption and to lay the probabilities in support of his contention and only if the defendant rebuts the presumption, the onus will again shift upon the plaintiffs and then it is for the

O.S.No.72/2020 Page 6 of 8

Fair Copy Dt.13.02.2023 plaintiffs to answer the probable circumstances raised by the defendant. Here, as the presumption is drawn in favour of the plaintiffs, it is for the defendant to establish his contentions.

f)As the defendant failed to produce any oral and documentary evidence in support of his contentions, it is inevitable to hold that defendant failed to establish the probabilities to rebut the presumption under Section 118 of the Negotiable Instruments

Act, 1881 and the plaintiffs could successfully establish that Ex.A1 – promissory note is true, valid and binding on the defendant.

Accordingly, this issue is answered in favour of plaintiffs and against defendant.

10. Issue No.2 : “Whether the plaintiffs 2 to 4 are entitled

for recovery of suit claim from the defendant, being LRs. of

deceased 1 st plaintiff, as prayed for?”

Indisputably, the 1stplaintiff died intestate on 23.04.2021, leaving behind plaintiffs 2 to 4 who are his Class-I legal heirs, being wife, son and daughter respectively. They are impleaded as parties to the suit after adjudication under Order

XXII Rule 3 of CPC. In the light of the foregoing discussion under issue no.1, as Ex. A1 – Promissory note is held to be true, valid and binding on the defendant, the plaintiffs 2 to 4, being legal representatives of deceased 1st plaintiff are entitled for recovery of suit claim from the defendant, as prayed for. Accordingly, this issue is decided in favour of the plaintiffs and against defendant.

11. Issue No.3 : “To what relief ?”

In view of the conclusion arrived under issue nos.1 and

O.S.No.72/2020 Page 7 of 8

Fair Copy Dt.13.02.2023 2, as the plaintiffs are entitled for recovery of suit claim, the suit is decreed in favour of plaintiffs 2 to 4, directing the defendant to pay a sum of Rs.3,17,633/- (Rupees Three Lakhs Seven Thousand Six

Hundred and Thirty Three only) together with interest @ 12% per annum from the date of filing of the suit till the date of decree and thereafter @ 6% per annum from the date of decree till the date of realization on the principal sum of Rs.2,50,000/- (Rupees Two

Lakhs and Fifty Thousand only), to the plaintiffs.

12. In the result, the suit is decreed with costs in favour of plaintiffs 2 to 4, directing the defendant to pay a sum of

Rs.3,17,633/- (Rupees Three Lakhs Seven Thousand Six Hundred and Thirty Three only) together with interest @ 12% per annum from the date of filing of the suit till the date of decree and thereafter @ 6% per annum from the date of decree till the date of realization on the principal sum of Rs.2,50,000/- (Rupees Two

Lakhs and Fifty Thousand only), to the plaintiffs 2 to 4.

Typed directly to my dictation by the Stenographer Grade-III of this Court, corrected and pronounced by me in open court on this the 13 th day of February, 2023.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE

BHIMAVARAM

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiffs:-

PW.1: Chikkala Nagamani

For Defendant:- None

O.S.No.72/2020 Page 8 of 8

Fair Copy Dt.13.02.2023

Documents marked

For Plaintiffs :-

Ex.A1/dt.02.12.2018:Original Promissory note executed by the defendant in favour of the 1st plaintiff for Rs.2,50,000/-

For Defendant :- -Nil-

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE

BHIMAVARAM

O.S.No.587/2021 Page 1 of 7

Fair Copy Dt.16.02.2023

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE ::

BHIMAVARAM

Present: Dr. Soni Dwarampudi

Principal Junior Civil Judge, Bhimavaram

Thursday, the 16 th day of February, 2023

ORIGINAL SUIT No: 587 of 2021

Between:

Kapu Kumari, W/o. Siva Shankar, Aged 50 years, Hindu, Female, House Wife, R/o. Bandaru Malleswara Rao Street, D.No. 15-3-6, 12th Ward, Bhimavaram, Bhimavaram (M), West Godavari District.

… Plaintiff

and

Lankalapalli Naga Raju, S/o. Gangadharam, Hindu, Male, Business, Aged 26 years, near Post Office, Mogallu (V), Palakoderu (M). West Godavari District. … Defendant

This suit came up on 13.02.2023 for final hearing before me in the presence of Sri S. Venkata Satyanarayana, Advocate for the plaintiff, and of Sri S. Subbarayudu, Advocate for defendant, and upon hearing both sides and considering the material on record and having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

01. This is a suit filed for recovery of Rs.11,27,466/- being the amount of principal and interest due under promissory note, dt.23.03.2020 executed by the defendant in favour of the plaintiff for Rs.8,00,000/- agreeing to repay the same with interest at 24% per annum to the plaintiff or to her order on demand with subsequent interest and for costs.

02. The necessary pleadings of both parties to the suit are

O.S.No.587/2021 Page 2 of 7

Fair Copy Dt.16.02.2023 narrated, succinctly, as follows :-

For plaintiff :

a)On 23.03.2020, the defendant borrowed an amount of Rs.8,00,000/- from the plaintiff for his family welfare and discharging sundry debts, agreement to repay the same with interest @ Rs.2/- per hundred per month payable on demand to the plaintiff or on his order on demand and executed a promissory note in favour of the plaintiff.

b) Inspite of repeated demands made by the plaintiff, the defendant postponed repayment of said promissory note debt to the plaintiff on some pretext or other. On that, the plaintiff got issued legal notice dt.27.11.2021 to the defendant demanding to repay the amount due under the said promissory note with interest and the defendant received the same, but he did not pay any amount. Therefore, the plaintiff is constrained to file this suit for recovery of amount due under promissory note.

For defendant :

While denying most of the allegations made in the plaint, defendant contended that about 4 years back, he borrowed

Rs.50,000/- from the plaintiff and at that time, the plaintiff obtained three signed empty promissory notes and one empty non- judicial stamp paper and at the same time, his friend by name

Sayyam Kesava Rao borrowed Rs.1,00,000/- from the plaintiff and that the said Kesava Rao died on 29.01.2021. When the plaintiff asked the defendant to repay the amount lent by the said Kesava

Rao and he refused to pay the same. Since then, the plaintiff bore

O.S.No.587/2021 Page 3 of 7

Fair Copy Dt.16.02.2023 grudge against him and taking advantage of the same empty promissory notes and other documents, the plaintiff got filed the present suit. Hence, prays to dismiss the suit.

03. As both the parties did not arrive at any settlement under

Section 89 of the Code of Civil Procedure, on the basis of pleadings of both parties, the following issues have been settled for trial:

1. Whether the suit promissory note dated 23.03.2020

is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for recovery of suit claim from the defendant?

3. To what relief ?

04. To substantiate her case, the plaintiff got examined herself as PW.1 and exhibited Exs.A1 and A2 on her behalf. One of the attestors of promissory note by name N. Nagaraju is examined as

PW.2 and scribe of Ex.A1 by name G. Murali Krishna is examined as PW.3.

05. On the other hand, the defendant is examined as DW.1. No documentary evidence is adduced on his behalf.

06. Heard arguments of both the counsels for plaintiff and for defendant.

07. In view of contentions put-forth by the plaintiff and defendant as to their respective pleadings, now the issues are taken up for discussion in order to find out whether the plaintiff established the suit claim or not.

O.S.No.587/2021 Page 4 of 7

Fair Copy Dt.16.02.2023

08. Issue No.1: Whether the suit promissory note dated

23.03.2020, is true, valid and binding on the defendant?

a)In order to substantiate her case, the plaintiff got herself examined as PW.1 and got marked Exs.A1 and A2. One of the attestors of promissory note is examined as PW.2 and scribe of

Ex.A1 as PW.3. It is the case of the plaintiff as PW.1 that defendant borrowed an amount of Rs.8,00,000/- on 23.03.2020 under Ex.A1 - promissory note and failed to repay the principal and interest on her demand and therefore, filed the present suit for recovery of money based on Ex.A1 - promissory note. PWs.2 and 3 unequivocally corroborated the version of PW.1 regarding their presence at the time of execution of Ex.A1 – promissory note.

b)Per contra, the defendant who is examined as

DW.1 filed his chief deposition affidavit in lieu of his examination- in-chief stating that he never borrowed such huge amount of

Rs.8,00,000/- from the plaintiff, and that about 4 years back, he borrowed Rs.50,000/- from the plaintiff and at that time, the plaintiff obtained three signed empty promissory notes and one empty non-judicial stamp paper; that at the same time, his friend by name Sayyam Kesava Rao borrowed Rs.1,00,000/- from the plaintiff, who died on 29.01.2021 and the plaintiff asked the defendant to repay the amount lent by the said Kesava Rao for which he refused and taking advantage of the empty promissory notes and other documents, the plaintiff filed this suit.

c)To discredit the testimonies of PWs.1 to 3, the defence taken by the defendant in his written statement is only suggested to PWs.1 to 3 during their cross-examination. Nothing

O.S.No.587/2021 Page 5 of 7

Fair Copy Dt.16.02.2023 has been put-forth by the DW.1 except denying the execution of

Ex.A1 - promissory note and also denying the receiving of consideration. PW.1 has categorically deposed about the execution of Ex.A1 - promissory note and passing of consideration and PWs.2 and 3 testified about their presence at the time of execution of

Ex.A1, unequivocally corroborating the version of PW.1.

d) The testimony of PWs.1 to 3 is enough to draw the presumption to draw the presumption under 118 of the Negotiable

Instruments Act, 1881 in favour of the plaintiff, as regards consideration in favour of plaintiff. Therefore, it is for the defendant to appreciate the presumption and to lay the probabilities in support of the contention of the defendant and if the defendant rebuts the presumption, the onus will again shift upon the plaintiff and then it is for the plaintiff to answer the probable circumstances raised by the defendant. Here the presumption is drawn in favour of the plaintiff, it is for the defendant to establish his contentions.

e) From the cross-examination of DW.1, it is evident that the defendant did not produce any oral or documentary evidence in support of his defence. The defendant did not place on record any material to dispel the presumption. On the other hand, the evidence of PWs.1 to 3 is very much clear and consistent about the execution of Ex.A1 – promissory note and passing of consideration under the same to defendant. Thus, the contention raised by him holds no water.

f) Therefore, it is inevitable to hold that defendant failed to establish the probabilities to rebut the presumption under

O.S.No.587/2021 Page 6 of 7

Fair Copy Dt.16.02.2023

Section 118 of the Negotiable Instruments Act, 1881 and the plaintiff successfully established that Ex.A1– promissory note is true, valid and binding on defendant. Accordingly, this issue is answered in favour of plaintiff and against defendant.

09. Issue No.2 :- “Whether the plaintiff is entitled for recovery of suit claim amount?”

In the light of the foregoing discussion under Issue No.1 and conclusion arrived there under, as defendant is liable to pay the debt covered under Ex.A1 – promissory note. Consequently, the plaintiff is entitled for recovery of suit claim covered under

Ex.A1 – promissory note from defendant. Accordingly, Issue No.2 is decided in favour of the plaintiff and against defendant.

10. Issue No.3 :- “If so, to what relief ?”

In view of the conclusions arrived under Issue Nos.1 and 2, as the plaintiff is entitled for recovery of suit claim from defendant, the suit is decreed in favour of the plaintiff for a sum of

Rs.11,27,466/- (Rupees Eleven Lakhs Twenty Seven Thousand

Four Hundred and Sixty Six only) together with interest @ 12% per annum from the date of filing of the suit till the date of decree and @ 6% per annum from the date of decree till the date of realization on the principal sum of Rs.8,00,000/- (Rupees eight

Lakhs only).

11. In the result, the suit is decreed with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.11,27,466/- (Rupees Eleven Lakhs Twenty Seven Thousand Four Hundred and

Sixty Six only) together with interest @ 12% per annum from the

O.S.No.587/2021 Page 7 of 7

Fair Copy Dt.16.02.2023 date of filing of the suit till the date of decree and @ 6% per annum from the date of decree till the date of realization on the principal sum of Rs.8,00,000/- (Rupees eight Lakhs only) to the plaintiff.

Typed directly to my dictation by the Stenographer Grade-III of this Court, corrected and pronounced by me in open court on this the 16 th day of February, 2023.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE

BHIMAVARAM

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff:-

PW.1: Kapu Kumari PW.2: Gadam Murali Krishna PW.3: Yerramsetti Eswara Varma

For Defendant:-

DW.1: Nakkalapali Nagaraju

Documents marked

For Plaintiff :-

Ex.A1/dt.23.03.2020:Original Promissory note executed by the defendant in favour of the plaintiff for Rs.8,00,000/-

Ex.A2/dt.27.11.2021:Office copy of registered legal notice dt.27.11.2021 got issued by the plaintiff to the defendant.

For Defendant :- -Nil-.

Sd/- Dr. Soni Dwarampudi

PRINCIPAL JUNIOR CIVIL JUDGE

BHIMAVARAM