Smt T. Malleswari

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE:: AT

VIJAYAWADA

FAC : I ADDITIONAL JUNIOR CIVIL JUDGE AT VIJAYAWADA

PRESENT: SMT. T. Malleswari

PRINCIPAL JUNIOR CIVIL JUDGE

WEDNESDAY, THE 27th DAY OF FEBRUARY, 2019.

O.S.1128/2017

Between: Parvathaneni Abba Naidu, S/o. Sundaraiah, Hindu, aged about 35 years, Business, R/o Shop No.327, Mahatma Gandhi Wholesale Commercial Complex, Mahendra Nagar, Gollapudi, Vijayawada Rural Mandal, Krishna District ... Plaintif

And

Nimmagadda Lakshmi Narayana, S/o. Prasad, Hindu, aged about 56 years, Properties, R/o D.No.26-3-85, Nageswararao Panthulu Road, Gandhi Nagar, Vijayawada

…..Defendant

This suit is coming before me on 02.01.2019 for final hearing in the presence of Sri. D. Satyanarayana, Advocate for plaintif and of M/s. G.S.Ramam, Advocate for defendant and upon perusing the plaint, written statement and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:

J U D G M E N T

1.The suit is filed a) to direct the defendant to vacate the plaint schedule property and to deliver the vacant possession of the plaint schedule property to the plaintif, b) to direct the defendant to pay arrears of rent of Rs.22,000/- from 01.07.2017 to 30.10.2017 at Rs.5,000/- per month towards rent and Rs.500/- per month towards maintenance, c) direct the defendant to pay damages of Rs.10,500/- per month (Rs.10,000/- towards rent and

Rs.500/- towards maintenance) from 01.11.2017 till the delivery of vacant possession of the plaint schedule property for unauthorized use and occupation of plaint schedule premises and

d) award costs of the suit.

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2.The averments of plaint in nutshell are as follows:

The plaintif is the absolute owner of the property situated in southern side residential room in ground floor in door No.26-3- 85, Nageswara Panthulu Road, Gandhi Nagar, Vijayawada, which is the plaint schedule property herein. The plaintif purchased the plaint schedule property from Manepalli Varadaraja Sarma by way of registered sale deed dt.27.07.2017 vide Doc.No.7971/2017 and since then the plaintif has been in possession and enjoyment of the same. The vendor of the plaintif attorney the then tenants.

By the time of purchasing the plaint schedule property, the defendant is the tenant of the plaint schedule property. After purchasing the suit schedule property, the plaintif requested the defendant to vacate and handover the same. But the defendant requested the plaintif to permit him to continue the tenancy on a monthly rent of Rs.5,000/- and Rs.500/- towards maintenance payable by 05th day of every succeeding month. Thus, the defendant is re-inducted into the plaint schedule property as tenant from 27.07.2017.

3.Plaintif further submits that since the induction into the plaint schedule property, the defendant is very irregular in payment of monthly rents to the plaintif. Since the date of purchasing the plaint schedule property by the plaintif, the defendant has not paid anything towards rent and committed default in payment of monthly rents. The plaintif issued statutory quit notice dt.16.09.2017, demanding the defendant to vacate the plaint schedule property on the midnight on 31.10.2017 and 3 handover the vacant possession to the plaintif, failing which, the defendant is liable to pay Rs.10,000/- per month towards damages for unauthorized use and occupation of pliant schedule property from November, 2017 till the date of delivery of the vacant possession of the plaint schedule property together with maintenance of Rs.500/- per month. Defendant received the said notice and got issued a reply dt.27.09.2017 with all false and frivolous allegations. The plaintif got issued rejoinder dt.21.10.2017, but the defendant not complied with the demand made in the quit notice. Hence, the plaintif is constrained to file the suit for eviction of the defendant from the plaint schedule property and for other reliefs.

4.The defendant in his written statement denied the allegations setout in the plaint and stated that there is no relationship in between the plaintif and the defendant as landlord and tenant. This defendant is not disputing the purchase of the property by the plaintif through sale deed vide

Doc.No.7971/2017 from his vendor. It is also true that by the date of said sale deed there are tenants in the entire property including the plaint schedule property. Nimmagadda Lakshmi

Gayathri is the tenant of the demised tenement by the date of sale deed dt.27.07.2017 but not this defendant. Even prior to the filing of the present suit one Nimmagadda Lakshmi Gayathri preferred R.C.C.No.29/2017 against the plaintif herein, the plaintif entered appearance by contesting the same, and pending for consideration. The said Nimmagadda Lakshmi 4

Gayathri contended in the said RCC stating that her father

Nimmagadda Prasada Rao is original tenant of the erstwhile landlady Manepalli Mangamma who is the original owner of the plaint schedule property on a monthly rent of Rs.200/- per month.

The said Nimmagadda Prasada Rao used to live in the tenement with his family. This defendant who is the son of Nimmagadda

Prasada Rao got married and separated from his parents 40 years ago. Nimmagadda Lakshmi Gayathri also married on 15.02.1989 and left her parental house and that she took divorce with her husband Majeti Dakshina Murthy by decree of divorce dt.17.09.1990 and joined her parents in the tenement. The said

Nimmagadda Prasada Rao who is the father of this defendant and

Nimmagadda Lakshmi Gayathri, died on 05.08.1992.

5.The Defendant further submits that after his death, the wife of N. Prasada Rao i.e. Nimmagadda Krishna Hari preferred a petition in R.C.C.No.1/1993 on the file of Rent Controller,

Vijayawada against the erstwhile landlady Manepalli Mangamma for deposit of rents at Rs.200 per month under section 8 of Rent

Control Act and the same was allowed and she used to remit the rent into the court till her demise. The said Nimmagadda Krishna

Hari who is the mother of defendant used to live along with her divorced daughter Nimmagadda Lakshmi Gayathri till her demise on 22.04.2009. After the demise of Nimmagadda Krishna Hari, her daughter Nimmagadda Lakshmi Gayathri deposited the rents on 12.06.2017 for the months of August, September, October,

November and December, 2017, at Rs.200/- per month, total of 5

Rs.1000/- for five months. Neither the said Manepalli Mangamma nor her son Manepalli Varadaraja Sarma withdrawn the rents from

Rent Control Court accrued in the said R.C.C.No.1/1993 till date.

Nimmagadda Lakshmi Gayathri came to know from the legal notice issued to the defendant who is her brother, issued by the plaintif’s advocate dt.16.09.2017, that the plaintif purchased the building including the plaint schedule tenement on 27.07.2017 through a sale deed from Manepalli Varadaraja Sarma, the son of the original owner Manepalli Mangamma. On coming to know of the said fact Nimmagadda Lakshmi Gayathri got issued a notice dt.19.09.2017 to the plaintif, calling upon him to furnish bank account particulars are the plaintif for deposit of rent, but the said notice was returned with an endorsement that the address particulars are insufficient. The said Nimmagadda Lakshmi

Gayathri got issued another notice to the plaintif on 27.09.2017 to furnish bank details of the plaintif to deposit the rent, the plaintif having received the said notice got issued a reply notice dt.21.10.2017 by denying the relationship of the tenant and landlord between her and plaintif. Though, Nimmagadda Lakshmi

Gayathri as a statutory tenant of the plaint schedule tenement, the plaintif falsely claimed that the defendant who is her brother is tenant of the plaint schedule property. She sent money order on 26.10.2017 for Rs.600/- for the tenancy period commencing from 27.07.2017 to 26.10.2017 at Rs.200/- per month to the plaintif and the said money order is refused by the plaintif and the same is returned to her on 02.11.2017. Therefore, she 6 preferred the said RCC enabling her to deposit rents into the court. She also preferred I.A.No.663/2017 to permit her to deposit the rents and interim order was passed on 07.11.2017 in RCC

No.29/2017 to deposit the rents in Rent Control Court, Vijayawada and accordingly she is depositing the rents regularly into the

Court. Defendant further submits that the suit is bad for non- joinder of necessary and property party i.e. Nimmagadda

Lakshmi Gayathri. There are no arrears of rents payable by the said Nimmagadda Lakshmi Gayathri and she is depositing the rents in rent control court in view of the orders in I.A.No.663/2017 in R.C.C.No.29/2017 dt.07.11.2017. Hence, the defendant prayed to dismiss the suit with costs.

6.Basing on the above pleadings the following issues have been settled for trial by my learned predecessor:

1. Whether the plaintiff is entitled for a decree of eviction against the defendant for the plaint schedule property?

2. Whether the plaintiff is entitled for arrears of rent of

Rs.22,000/- against the defendant from 01.07.2017 to 30.10.2017 @ Rs.5,500/- per month together with maintenance as prayed by the plaintiff?

3. Whether the plaintiff is entitled for unauthorized damages @ Rs.10,500/- per month from 01.11.2017 till the vacation of the defendant and for costs as prayed?

4. Whether the quit notice dated 16.09.2017 is not valid as contended by defendant?

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5. Whether there is tenant and landlord relationship between plaintiff and defendant as contended by the plaintiff as prayed for?

6. Whether the suit is bad for non-joinder of proper party as contended by defendant?

7. To what relief?

7.To substantiate the case of the plaintif, plaintif himself was examined as PW1 apart from PW2, and got marked

Ex.A1 to E.A8. On behalf of the defendant, the defendant himself was examined as DW1 and got marked Ex.B1 and Ex.B2.

8.Heard both sides. Perused the record.

ISSUE No.5

9.It is the case of the plaintif that he purchased the plaint schedule property from Manepalli Varadaraja Sarma under registered sale deed dt.27.07.2017. By the time of purchasing plaint schedule property, the defendant is a tenant of the plaint schedule property. The defendant requested the plaintif to permit him to continue in the plaint schedule property on a monthly rent of Rs.5,000/- per month and Rs.500/- towards maintenance charges. Thus, the defendant is re-inducted into the plaint schedule property as tenant from 27.07.2017.

10.On the other hand the defendant contends that there is no landlord and tenant relationship between the plaintif and himself and his sister by name Nimmagadda Lakshmi Gayathri is the tenant of plaint schedule premises. The said Nimmagadda

Lakshmi Gayathri filed R.C.C.No.29/2017 on the file of Rent 8

Control Court, Vijayawada and as per the orders in

I.A.No.663/2017 she is depositing the rents into the court.

11.During cross examination of PW1 stated that there

was no attornment letter obtained from his vendor

pertaining to the tenancy of the tenants. He does not

know who is residing in the portion of the defendant. He

has no document to show that the defendant is paying

rent of Rs.5000/- per month and Rs.500/- towards

maintenance. He cannot file the documents to show that

the defendant is a tenant and paid rents to his vendor or

to him. He does not know that the defendant is living

separately after his marriage and he is not residing along

with mother and sister in the plaint schedule portion.

12.PW2 in his cross examination stated that he does not

know the particulars when the defendant was inducted as

tenant. He never seen the defendant paying rents to the

plaintiff. He never witnessed the tenant and landlord

transaction between them. He never visited the plaint

schedule premises. He does not know who resides in the

tenanted property and how many portions are there in the

said property. He has never seen the defendant.

13.Ex.A3 recitals shows that the defendant is not tenant of the plaintif and therefore, the defendant got issued Ex.A3 reply notice to the plaintif. Ex.A6 reveals that Nimmagadda

Lakshmi Gayathri issued legal notice to the plaintif stating that she is the tenant of the plaint schedule property from the time of 9 erstwhile landlady Manepalli Mangamma on monthly rent of

Rs.200/- per month. As she came to know about the purchase of property by the plaintif on 27.07.2017, she got issued Ex.A6 legal notice to the plaintif, requesting the plaintif to furnish the bank details of the plaintif to deposit the rents. From Ex.A3 and

Ex.A6 it is established that defendant is not the tenant of plaint schedule property and that the sister of the defendant i.e.

Nimmagadda Lakshmi Gayathri is the tenant of the plaint schedule premises.

14.From the categorical admissions made by PW1 and

PW2 it is elicited that there is no evidence on record to show the landlord and tenant relationship between the plaintif and defendant and there is no evidence on record to show that the defendant paid rents to the plaintif to the plaint schedule property. Hence, it can be said that there is no landlord and tenant relationship between the plaintif and defendant.

Accordingly, this issue is answered against the plaintif.

ISSUE NO.6:

15.As discussed in Issue No.5 from Ex.A6 it is evident that

Nimmagadda Lakshmi Gayathri who is the sister of the defendant is the tenant in the plaint schedule tenement. The burden is on the plaintif to establish that the defendant is the tenant of the plaint schedule property and the defendant has paid rent to the plaint schedule property. From the cross examination of PW1 it is amply established that there is no evidence on record to show 10 that the defendant is tenant under the plaintif and defendant is paying rents to the plaintif towards plaint schedule property.

16.PW1 in his cross examination categorically admitted that after the death of Nimmagadda Krishna Hari, her

daughter Nimmagadda Lakshmi Gayathri continued the

R.C.C. proceeding in R.C.C.No.1/1993 and depositing the

rents @ Rs.200/- per month and the rents deposited into

the court were never withdrawn either by his vendor’s

mother or by his vendor. He does not know Nimmagadda

Lakshmi Gayathri is the tenant and she is regularly

depositing the rents. He does not know about filing

R.C.C.No.29/2017 by Nimmagadda Lakshmi Gayathri

against him on 06.11.2017.

17. From the categorical admissions made by PW1 it is established that the said Nimmagadda Lakshmi Gayathri is depositing the rents to the plaint schedule property into the Court @ Rs.200/- per month and that the said Nimmagadda Lakshmi

Gayathri filed RCC No.29/2017 before the Rent Control Court,

Vijayawada and depositing the rents into the court as per the orders of the Rent Control Court. Ex.B1 shows that Nimmagadda

Lakshmi Gayathri and her mother Nimmagadda Krishna Hari, W/o late Nimmagadda Prasada Rao jointly filed RCC No.1/1993 on the file of Rent Control Court, Vijayawada to permit them to deposit the monthly rents into the Court, since the original tenant i.e. N.

Prasada Rao died and they are his legal heirs. Even from Ex.B1 it is evident that the defendant is not tenant of the plaint schedule 11 tenement. If really the defendant is tenant of the plaint schedule property his name would have been shownin Ex.B1 as one of the petitioners by showing that he is in possession of plaint schedule tenement along with his mother Nimmagadda Krishna Hari and sister Nimmagadda Lakshmi Gayathri. But it is not so.

18.DW1 in his cross examination stated that his father took

the property under rent about 40 years back. At the time

of induction into the plaint schedule property by his

father all the children were in occupation of the plaint

schedule property. His father died 30 years ago. After his

death all the children were under the same roof till their

marriage. He got issued reply notice to the notice issued

by the plaintiff. The said notice was handed over by his

sister to him and he issued reply notice. DW1 categorically denied the suggestion put to him stating that he is the tenant of the plaint schedule property and he is residing in the plaint schedule property.

19.From Ex.A1, A6, B1 and from the categorical admissions of

PW1, a clear picture emerges that the sister of the defendant i.e.

Nimmagadda Lakshmi Gayathri is the tenant of the plaint schedule tenement. But she is not added as defendant in the suit.

The said Nimmagadda Lakshmi Gayathri is the proper and necessary party to the suit and non-impleading her in the suit is fatal to the case of the plaintif. Hence the suit is bad for non- joinder of proper and necessary party. Accordingly, this issue is answered against the plaintif.

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ISSUE NO.4

20.In view of finding on Issue No.5, it is established that there is no landlord and tenant relationship between the plaintif and defendant. Hence, the quit notice dt.16.09.2017 issued by the plaintif to the defendant is not valid. Accordingly, this issue is answered against the plaintif.

ISSUE NO.1:

21.In view of findings on Issue No.5, it is established that there is no landlord and tenant relationship between the plaintif and defendant. Therefore, the plaintif is not entitled for eviction of the defendant from the plaint schedule property. Accordingly, this issue is answered against the plaintif.

ISSUE NO.2:

22.In view of finding on Issue No.1 and 5, the plaintif is not entitled for eviction of the defendant from the plaint schedule property. Hence, the plaintif is not entitled for arrears of rent of

Rs.22,000/- from the defendant from 01.07.2017 to 30.10.2017 @

Rs.5,500/- per month together with maintenance. Accordingly, this issue is answered against the plaintif.

ISSUE NO.3:

23.In view of finding on Issue No.1, 2 and 5, it is established that there is no landlord and tenant relationship between the plaintif and defendant and that the plaintif is not entitled for eviction of the defendant from the suit schedule premises and for arrears of rent of Rs.22,000/- from the defendant. Hence, the plaintif is not entitled for damages @ 13

Rs.10,500/- per month from 01.11.2017 till the date of eviction of the plaint schedule premises by the defendant for unauthorized use and occupation of the plaint schedule premises.

ISSUE NO.7:

24.In the result, the suit is dismissed with costs.

Dictated to the Stenographer, transcribed by her,

corrected by me and pronounced by me in the open court, this, the 27th day of February, 2019

Principal Junior Civil Judge,

Vijayawada. FAC: I AJCJ/VJA

APPENDIX OF EVIDENCE

Documents marked :

For Plaintif :

PW1: Parvathaneni Abba Naidu

PW2: Tummalakunta Venkateswarlu

For Defendant:

DW1: Nimmagadda Lakshmi Narayana

DOCUMENTS MARKED FOR

For Plaintif:

Ex.A1:Office copy of the legal notice dt.16.09.2017 issued on behalf of the plaintif to defendant

Ex.A2:Postal acknowledgment for Ex.A1 dt.19.09.2017

Ex.A3:Reply notice dt.27.09.2017 got issued on behalf of the defendant

Ex.A4:Office copy of the rejoinder notice dt.21.10.2017 got issued on behalf of the plaintif to the defendant counsel

Ex.A5:Postal acknowledgment for Ex.A4 dt.24.10.2017

Ex.A6:Office copy of legal notice dt.27.07.2017 got issued by the wife of the defendant to the plaintif 14

Ex.A7:Reply notice dt.21.10.2017 got issued on behalf of the plaintif for Ex.A6

Ex.A8:Postal Acknowledgment for Ex.A7 dt.24.10.2017

For defendant :

Ex.B1:Certified copy of suit register in RCC.1/1993 showing that the 1st petitioner is N. Krishna Hari, W/o Late Prasada Rao, the petitioner is N. Lakshmi Gayatri, D/o Late Prasada Rao and the respondent is M. Mangamma, W/o late Venugopala Krishna Murthy

Ex.B2:Certified copy of ledger account copy of suit in RCC.1/1993 showing the remittance of the rents

P.J.C.J., VJA.

FAC: I AJCJ/VJA 15

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE -

CUM- METROPOLITAN MAGISTRATE :: VIJAYAWADA

PRESENT: SMT. T. MALLESWARI

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, FAC/I Additional Junior Civil Judge, Vijayawada. Tuesday, this the 19th day of February, 2019.

C.C.No.1110/2018

Between:

Kopalli Harish, S/o. Anthony, Hindu, aged about 42 years, resident of Door No.32-2-12, Occupation Canara Bank, A.S. Rama Rao Road, Mogalrajpuram, Vijayawada, Krishna District.

........Complainant

And

Habeeb Jani Mohammed, S/o. Khaja Mahaboob, Hindu, aged about 50 years, Clerk in State Bank of India, Patamata SME Branch, Near Auto Nagar gate, Vijayawada. ---Accused

This case is coming on 18.12.2018 before me for final hearing in the presence of Sri Guntur Bullaiah, Advocate for complainant, and of Sri S.M.K., Advocate for the accused and the matter having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.This complaint is filed by the complainant against the accused for the offence punishable under Section 138 and 142 of Negotiable Instruments Act.

2.The brief averments of complaint are as follows.

The accused borrowed an amount of Rs.4,00,000/- on 22- 09-2014 from the complainant by way of cash for the purpose of his family expenses, and the accused executed a promissory note in favour of the complainant on receiving the consideration at Vijayawada, on the even date, agreeing to repay the said sum together with interest @ 24% p.a either to the complainant 2 or to his order on demand. In spite of repeated demands made by and on behalf of the complainant, the accused intentionally postponed the same with false pleas. The accused issued a cheque on 24-8-2016 bearing No.012413 drawn on State Bank of India, Patamata SME Branch, Near Auto Nagar Gate,

Vijayawada, for Rs.3,50,000/- towards part payment of the above said debt due to the complainant. The complainant presented the above said cheque for collection through his bank i.e., Syndicate Bank, Siddhartha Nagar Branch, Mogalrajpuram,

Vijayawada, and the said cheque was returned dishnoured as unpaid as per the return memo of the accused bank dated 30-8- 2016 for the reason “Insufficient Funds” and the same was informed to the complainant through his banker. The said fact was intimated to the accused by the complainant and on that the accused requested the complainant to present the same after few days and as per his specific representation the complainant again presented the said cheque through his banker i.e., State Bank of India, Patamata SME Branch, Near

Auto Nagar Gate, Vijayawada on 27-9-2016. But the said cheque was again dishonoured, returned and unpaid with a cheque return memo dated 27-9-2016 with an endorsement “Insufficient Funds” and the same was informed to the complainant through his banker. The complainant got issued a legal notice dated 29-9-2016 and demanding the accused for payment of the amount covered under the dishonoured cheque and the accused has received the above said legal notice and 3 just kept quiet. Hence, the complaint.

3.The present complaint was taken on file for the offence punishable U/s. 138 of Negotiable Instruments Act and numbered as C.C.No.281/2017 on the file of Hon’ble IV Addl.

Chief Metropolitan Magistrate Court, Vijayawada. Subsequently, the record was transferred to this court as per the proceedings of Hon’ble District Court, Krishna, Machilipatnam in Dis.No.1579

dated 22-2-2018 and re-numbered as C.C.No.1110/2018.

4.On appearance of the accused, copies were furnished to him as per section 207 of Cr.P.C. The accused was examined

U/s.251 of Cr.P.C for the offence punishable U/s. 138 of

Negotiable Instruments Act and when the particulars of the accusation was read over and explained to him in Telugu, he pleaded not guilty and claims for trial.

5.In order to prove the complainant’s case, the complainant himself was examined as PW1 and got marked Exs.P1 to P6.

6.After closer of complainant evidence, the accused was examined U/s.313 Cr.P.C by explaining the incriminating evidence available against him which were deposed by PWs.1 to 3 for which he denied the same and reported that there is no defence evidence

7.Heard both sides. Perused the record.

8.Now the points for determination are:

1.Whether there is legally enforceable debt

between the complainant and accused for issuance

of Ex.P2 cheque?

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2. Whether the complainant is able to prove the guilt of the accused for the offence Under section 138 and 142 of N.I. Act beyond all reasonable doubt?

3. To what relief?

POINT No:1

9.Pw1 in his chief examination affidavit stated that the accused borrowed an amount of Rs.4,00,000/- on 22-9-2014 byway of cash for his family expenses and executed Ex.P1 promissory note on the same day by agreeing to repay the said amount with interest at 24% p.a. On repeated demands made by him finally the accused issued a cheque bearing No.012413 drawn on State Bank of India, Patamata SME branch, near auto nagar gate, Vijayawada for Rs.3,50,000/- on 24-8-2016 under

Ex.P2 towards part payment of the said legally enforceable debt. The complainant presented the said cheque through his banker i.e., Syndicate Bank, Siddhartha Nagar branch,

Mogalrajpuram, Vijayawada, and the same was returned with return memo of the accused bank dated 30-8-2016 for the reason “funds insufficient” under Ex.P3 and the same was informed to him through his banker. Again he presented the said cheque in his bank on 27-9-2016 on the request of the accused, but again the said cheque was returned and unpaid with an endorsement “Funds Insufficient” on 27-9-2016 under Ex.P4.

Therefore, he got issued a legal notice dated 29-9-2016 to the accused under Ex.P5 demanding the accused to pay the cheque amount within 15 days from the date of receipt of the said 5 notice. The accused received and the acknowledged the said legal notice under Ex.P6 and kept quiet. Hence, the complaint.

10.Pw1 in his cross examination stated that he is doing

business of supplying of Shamiyana in the name of “Adi

Lakshmi suppliers”. He lend the amount to the accused

on 22-9-2014 in his shop at 7.30 p.m. in the presence of

N. Srinivasa Rao, K. Ramana and accused. The said

persons were brought by the accused. He earns more

than Rs.2,000/- per month. His lively hood is based on

his business and he has no properties. His family

consists of six members and all are depended on his

business. His expenditure per month is up to

Rs.20,000/-. He pays tax to the Municipality for his

business. There is no registration certificate for his

business.

11.With the monthly income of Rs.2,000/- the question of lending amount of Rs.4,00,000/- to the accused by the complainant is highly impossible and improbable. As elicited from the cross examination of Pw1 apart from the income from his business, the accused has no other properties. For this reason also it can be said that the complainant has no financial capacity to lend an amount of Rs.4,00,000/- to the accused. As stated by the complainant no registration certificate to the suppliers business doing by the complainant has not been filed by the complainant, to prove his contention. Moreover, no tax payment receipts have been filed by the complainant to show 6 that he has been paying tax to the municipal corporation

Vijayawada. Therefore running the suppliers business by the complainant is also not established. Hence, the contention of the complainant that he is doing suppliers business also cannot be believed.

12.Pw1 in his cross examination stated that he lend an

amount of Rs.4,00,000/- to the accused on 22-9-2014 in

his shop at 7.30 p.m in the presence of N. Srinivasa Rao

and K. Ramana and the said persons were brought by

the accused. When the said persons were brought by the accused, as stated by Pw1, what prevented the complainant not to take summons from the court to give their evidence to prove his contention. No such steps were taken by the complainant to prove his contention. Therefore, the alleged payment of

Rs.4,00,000/- to the accused in the presence of N. Srinivasa Rao and K. Ramana is also highly doubtful.

13.Pw1 in his cross examination stated that on 27-9-2016

he went to State Bank of India, SME Patamata branch, to

enquire whether there is an account of the accused. On

knowing that there is no amount in the account of

accused he asked for return memo showing “Funds

Insufficient” and obtained Ex.P4 return memo. He has

no bank account at SBI, SME Patamata branch. When the plaintiff has no bank account in State Bank of India, SME,

Patamata branch how he could presented Ex.P2 cheque in the said bank and how he could got Ex.P4 return memo from the 7 said bank. The said ambiguity is unexplained by the complainant. Therefore, it is amply proved that Ex.P4 is created by the complainant for the purpose of this case.

14.The learned counsel for the accused relied on following citations in support of his case. 1) AIR 2007 AP 55 in between

Yalamanchili Vijaya Kishore Vs Peeta Brahmananda Rao

wherein it is held that - Respondent alleged to have borrowed sum of

Rs.27,500/- from ‘A’ on 19-09-1990 and executed a promissory note, undertaking to repay said amount with interest at rate of 24% p.a.

The promissory note said to have been further transferred by ‘A’ in favour of appellant for same consideration of Rs.27,500/- on 18-10- 1990 though an endorsement. Appellant filed instant suit for recovery against respondent on the basis of said endorsement made in respect of promissory note in his favour. ‘A’ was not impleaded in suit but was examined as witness by appellant. Appellant miserably failed to establish the execution of said promissory note as well as the payment of consideration by ‘A’ to respondent. Neither the appellant nor ‘A’ could explain as to who and why said promissory note was transferred to appellant for the same amount even after one month besides that by that date interest for one month had already accrued upon int. ‘A’ also failed to give proper explanation as to the circumstances under which said promissory note came into existence. Above all, the capacity of ‘A’ to lend the amount to respondent was also not established. In view of said matter, suit therefore would liable to be dismissed. 2. (2015) 1 SCC (Crl) 576

(2015) 1 SCC 99 in between K Subramani Vs K Damodara

Naiduwherein it is held that – Accused took a loan of Rs.14 lakhs in cash from complainant, promising to repay with 3% interest per 8 month and issued post-dated cheque – Cheque was dishonoured with an endorsement “funds insufficient’. Trial court acquitted appellant for want of roof of legally recoverable debt payable by accused. High

Court set aside acquittal and remanded the case for retrial finding that presumption under Sec.139 of NI Act accrues to benefit of complainant unless accused rebuts that presumption. Source of loan amount claimed by complainant to be savings from his salary and an amount of Rs.5 lakhs derived by him from sale of Site No.45 belonging to him. Three is no averment with regard to said sale in complaint or in chief-examination of complainant or in his income tax return. Complainant obtained a loan of Rs.1,49,205 from LIC in year 1997 when alleged loan of Rs.14 lakhs is claimed to have been disbursed to appellant. Wife of complainant in another criminal case stated that present accused had not taken any loan from her husband – Held, trial court rightly came to conclusion that complainant had no source of income to lend a sum of Rs.14 lakhs to accused and he failed to prove that there was any legally recoverable debt payable by accused to him. 3) 2004 CRI. L. J. 4107 (AP) in between

Nagisetty Nagaiah Vs State of A.P. and anotherwherein it is held that – Amount allegedly due from accused in business not proved – Complainant did not file any account books – No income-tax report or audit book placed before Court to construe that there was any legally enforceable debt. It cannot be said that factual basis for raising presumption had been established. Complainant can be said have failed to discharge initial burden that there was legally enforceable debt. Dismissal of complaint proper. 4) 2004 CRI. L. J.

4112 (KA) in between State of Karnataka Vs G.M. Sumanabai

and otherswherein it is held that – Section-120-B; 177; 471 – 9

Conspiracy. Furnishing false information and obtaining false caste certificate. Accused belonging to “Havyak Brahmin” furnishing false information and obtaining admission by producing false Scheduled

Tribe Certificate, Accused convicted for offence under Section-120-B; 177 and 471.

Where the accused was aware of the fact that she belongs to “Havyak Brahmin” by caste but she furnished false information to the authority and obtained admission by producing false caste certificate of Scheduled Tribe Community; the accused could be convicted for offences under Sec.120-B; 177 and 471 of Penal Code.

The accused by suppressing the truth, managed to obtain false document and the same were used as genuine for the purpose of securing admission and other benefits. Hence, ingredients of Sec.177 and 471 are proved. 5)1997 (2) ALT (Crl) 100 (A.P) in between

G.B. Lingam Vs Vitta Muralikrishna Murthy and another

wherein it is held that – when once the respondent takes the plea that the cheque was not issued for discharge of a legally enforceable debt or liability then the complainant is bound to prove the circumstances under which the cheque was given in his favour and that the same is issued in discharge of legally enforceable debt. Unless this initial burden is discharged by the complainant, the presumption available under Section 139 cannot be made use of against the respondent.

Hence, keeping the legal position in mind not only trial Court but also this Court recorded a finding that the cheque was not given in discharge of a legally enforceable liability and the presumption available under Section 139 of the Negotiable Instruments Act, 1881, cannot be pressed into service by the holder of the cheque.

6) 2009 CRI. L. J. 3777 (BOM) in between Sanjay Mishra Vs 10

Kanishka Kapoor @ Nikki and anotherwherein it is held that – In the present case, the amount was allegedly advanced in September 2004. The amount is a large amount of Rs.15 lakhs. This is a case where not only that there is a failure to disclose the amount of loan in the Income Tax Return of the applicant till the year 2006 but there is a categorical admission on the part of the applicant that the amount was an “unaccounted” amount. By no stretch of imagination it can be stated that liability of repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to Section-138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt. 7)

2008 (1) ALD (Crl) 485 (SC) in between Krishna Janardhan

Bhat Vs Dattatraya G. Hegdewherein it is held that –

Complainant/accused issued advanced a sum of Rs.1,50,000/- to appellant on 14-06-1998 and latter on 20-07-1998 appellant/accused issued cheque said amount in discharge of loan – In his reply to notice of dishonour, appellant alleged that the complainant had been colluding with one R.G. Bhat his constituted attorney in regard thereto – Counterfoil of cheque book, in hand writing of said R.G.Bhat showing that a sum of Rs.1500/- was withdrawn on a self-drawn cheque and, therefore, according to appellant said cheque had been misused – Holding that defence raised by appellant had not be proved, appellant convicted by trial court and sentenced to undergo imprisonment for 6 months and further directed to pay compensation for a sum of Rs.1,50,000/- - Appellant against, dismissed – High Court whie partly allowing revision petition reduced substantive sentence to one week – Appeal – Held, Courts were required to draw an inference as to probability of complainant advancing a sum of Rs.1.5 lakhs on 11 mere asking and that too without keeping any documentary proof –

Purported story that appellant would himself come forward to return amount by a cheque knowing fully well that he did not have sufficient funds, difficult to believe. Once accused is found to have discharged his initial burden, it shifts to complainant – High Court should have entertained revision application – Appeal allowed – Judgment of conviction and sentence, set aside.

15.For the reasons discussed above the complainant failed to prove his financial capacity to lend an amount of Rs.4,00,000/- to the accused under Ex.P1. As there is no legally enforceable debt between the complainant and accused the question of issuing Ex.P2 cheque by the accused towards part payment of the debt due under Ex.P1 does not arise. Therefore, it can be said that there is no legally enforceable debt between the complainant and accused. Accordingly, this point is answered in favour of the accused and against the complainant.

POINT NO.2

16.For the reasons discussed above the complainant failed to establish the guilt of the accused for the offence under section 138 and 142 of N.I. Act beyond reasonable doubt. Accordingly, this point is answered in favour of the accused and against the complainant.

17.In the result the accused is found not guilty for the offence under section 138 and 142 of N.I. Act and he is acquitted under section 255(1) Cr.P.C. The bail bonds of the accused shall stands cancelled after expiry of appeal time.

12

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open Court on this the 19th day of February, 2019.

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, FAC/I Additional Junior Civil Judge, Vijayawada.

Appendix of Evidence

Witness examined

FOR COMPLAINANT:

Pw1. Kopalli Harish

FOR ACCUSED:-

---None---

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.P1 : Original Promissory note executed by the accused in favour of the complainant dated 22-9-2014. Ex.P2 : Original cheque bearing No.012413 issued by the accused in favour of the complainant for an amount of Rs.3,50,000/- dated 24-8-2016. Ex.P3 : Cheque return memo issued by the Syndicate Bank

dated 31-8-2016.

Ex.P4 : Memo issued by the State Bank of India, Patamata SME, Branch, Near Auto Nagar Gate, Vijayawada dated 27-9-2016. Ex.P5 : Office copy of the legal notice got issued on behalf of the complainant to the accused along with postal receipt dated 29- 9-2016. Ex.P6 : Postal acknowledgement for Ex.P5 dated 1-10-2016.

FOR DEFENCE:-- ---None---

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, FAC/I Additional Junior Civil Judge, Vijayawada.

13

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE:: AT

VIJAYAWADA

FAC: I ADDITIONAL JUNIOR CIVIL JUDGE, VIJAYAWADA

PRESENT: SMT. T. Malleswari

PRINCIPAL JUNIOR CIVIL JUDGE

TUESDAY, THE 05th DAY OF MARCH, 2019.

O.S.316/2017

Between: Pabbati Prameela Rani, W/o. Sreenivasa Gopala Krishna Murthy, Hindu, aged about 52 years, Properties, R/o D.No.76-1-141/1, Calling as Old M.I.G.No.141/1, A.P.Housing Board Colony, Bhavanipuram, Vijayawada, Krishna District ... Plaintif

And

Vijayawada Municipal Corporation, Rep. by its Commissioner, Pandit Nehru Buildings, Vijayawada

…..Defendant

This suit is coming before me on 08.02.2019 for final hearing in the presence of Sri. Ch. Subba Rao, Advocate for plaintif and of Sri. N. Srihari, Advocate for defendant and upon perusing the plaint, written statement and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:

J U D G M E N T

1.The suit is filed for grant of permanent injunction restraining the defendant-corporation, its staf, men, agents etc. from interfering with the plaintif’s peaceful possession and enjoyment of the plaint schedule property and desist from removing or demolishing the Toilet room on the northern side in the plaint schedule premises or any structures belonging to the plaintif and award costs of the suit to the plaintif.

2.The brief averments of plaint are as follows:

Plaintif is the absolute owner of the dwelling house property vide Door No.76-1-141/1 mostly called as M.I.G.141/1, i.e. Block No.141, Flat No.1, Phase – 1 with an old Assessment

No.32289, 81954 (New), Ward No.28A, A.P. Housing Board Colony, 2

Bhavanipuram, Vijayawada. The plaintif purchased the plaint schedule property under registered sale deed dt.22.12.2004 vide

Doc.No.15693/2004 from the Vice Chairman and Housing

Commissioner, A.P. Housing board, Hyderabad. Ever since the date of purchase the plaintif has been in peaceful possession and enjoyment of the plaint schedule property without any obstruction. Initially the A.P. Housing Board has maintained and later the A.P. Housing Board Colony maintenance was handed over to the defendant-corporation. The plaintif has been paying the necessary taxes periodically to the plaint schedule property.

3.Plaintif further submits that M.I.G. Block comprising of six flats comprising of Ground, First and Second floor of Each

Block, the plaint schedule property is situated in Ground floor,

Block No.141, Flat No.1. The ground floor owners constructed the compound wall and also constructed the toilet on rear side to their flat. From open space most of the flat owners construct permanent structures by extending and utilizing the open space in front and rear side of their flats. In the extended structures the flat owners are running small business establishments i.e.

provisions stores, medical shops, hotels, tea canteens, fancy stores, etc.. The defendant-corporation also imposed taxes on the extended structures. The ground floor flat owners utilizing the front and rear open space for their personal use by constructing the compound wall and made permanent structures inside for their personal use including one or two extra rooms and toilet.

The plaintif has purchased the plaint schedule property along 3 with a toilet room 8x8 feet in the rear side of the flat. The said construction of the toilet room is a temporary construction meant to utilize the same as toilet and since 2004 the plaintif is utilizing the same.

4.Plaintif further submits that on the western side boundary there was a compound wall in existence and three years back the plaintif erected a gate to avoid the entry of the domestic animals and thieves, etc. The Northern side of the plaint schedule property is exclusive for the plaintif and it was in her possession and enjoyment and the other occupants have nothing to do with the space. No structure was constructed by the plaintif in the common areas of the other occupants to reach their flats.

The plaintif leveled the open space in front of her house by covering the Cadapa Stones and white washing all the plaint schedule property by spending more than one lakh rupees. The toilet in the rear side of the plaint schedule property is not causing inconvenience to the other occupants of the M.I.G. Block

No.141.

5.Plaintif further submits that recently the Flat Nos.2 and 3 owners (first and second floor) started raising quarrels with the plaintif to remove the existing open toilet room in the northern side (rear side) of the plaint schedule property. They made complaint to the defendant-corporation requesting the plaintif to remove the toilet room on the northern side of the plaint schedule property. The toilet premises was also measured for imposition of property tax of plaint schedule property and the 4 plaintif has been paying the property tax to the toilet premises also. The Town Planning Staf of defendant-corporation visited the plaint schedule property on 28.03.2017 and stated that they have received complaints and they would remove and demolish the toilet room. As per the provisions of the Act the defendant- corporation has to initially issue a show cause notice contemplated under section 452 of the H.M.C. Act calling for explanation of plaintif and on submission of such explanation the

Commissioner of Defendant-corporation has to pass speaking orders for taking action. Without following due procedure the defendant-corporation has no right to remove or demolish the toilet room. The plaintif is apprehending the highhanded action of removing of toilet room by the defendant-corporation. Hence, the plaintif is constrained to file the suit for grant of permanent injunction against the defendant-corporation in respect of the plaint schedule premises.

6.The defendant in his written statement denied the allegations made in the plaint and stated the plaintif and other three occupants of the ground floor should abide the conditions prescribed in the documents executed by the Housing Authorities or at least they have to obtain permission from VMC for construction of Bath Rooms and toilets in the open space which is meant for the use of the entire habitants of the particular Block.

The plaintif constructed toilet and compound wall in the common open space without obtaining the permission from the VMC and further it is causing much inconvenience to other occupants of 5 the flat owners. The unauthorized construction needs to be demolished in the interest of public. Mere payment of tax to the toilet may not solve the unauthorized construction of the same.

The defendant authorities inspected the premises of the plaintif and advised to remove the unauthorized construction, but the plaintif not cooperated. There is no cause of action in the suit.

Hence, the defendant prayed to dismiss the suit with costs.

7.Basing on the above pleadings the following issues have been settled for trial by learned 1st Addl. Junior Civil Judge,

Vijayawada:

1. Whether the plaintiff is entitled for decree of permanent injunction against the defendant as prayed?

2. Whether the construction of compound wall, Toilets in the common open space is unauthorized as contended by the defendant?

3. To what relief?

8.To substantiate the case of the plaintif, the plaintif herself was examined as PW1 apart from PW2, and got marked Ex.A1 to

Ex.A5. On behalf of the defendant, Town Planning Supervisor of the defendant-corporation was examined as DW1 and Town

Planning officer of the defendant-corporation was examined as

DW2 and no documents were marked on behalf of the defendant.

9.Heard both sides. Perused the written arguments filed the defendant.

6

ISSUE NO.2

10.It is the case of the plaintif that she purchased the plaint schedule property under registered sale deed dt.22.12.2014 from the vice-chairman and A.P. Housing Board Hyderabad. The plaintif has purchased the plaint schedule property along with the toilet room 8x8 feet in the rear side of the flat i.e. on the northern side of open space. The said construction of the toilet room is a temporary construction meant to utilize the same as toilet and since 2014 the plaintif is utilizing the same. The toilet room premise was also assessed to the property tax and the plaintif has been paying the property tax to the toilet room premises also. On 28.03.2017 the Town Planning staf of defendant-corporation visited the plaint schedule property and stated that they have received complaint and they would remove and demolish the toilet room premises. Hence, the suit.

11.It is the case of the plaintif that she purchased the plaint schedule property along with toilet room premises with measurement 8x8 feet which is on the rear side of the plaint schedule flat i.e. on northern side of the plaint schedule flat. But

Ex.A1 sale deed of the plaintif shows that she purchased Flat

No.1, Phase -1 in Block No.141 having plinth area of 534.33 Sq.

feet with undivided share of 51.22 Sq. yards in the said Block. In

Ex.A1 it is not mentioned that there is a toilet room in the plaint schedule property and the plaintif purchased the property along with the toilet room. If really there is a toilet room in the plaint schedule property at the time of purchase of plaint schedule 7 property by the plaintif, the said fact would have been mentioned in Ex.A1, but it is no so. Therefore, it can be said that at the time of purchase of plaint schedule property by the plaintif there is no toilet in the plaint schedule property and the said construction was made by the plaintif after she purchased the plaint schedule property under Ex.A1.

12.PW1 in her cross examination stated that there is vacant space around the flat. PW1 denied the suggestion put to her stating that prior permission from the defendant is required for making any further construction to the flat. PW1 denied another suggestion put to her that she has not taken any prior permission from the defendant for construction of bathrooms.

13.From the recitals of Ex.A1 it is clear that no vendee will make any construction on the appurtenant and alter the nature of the appurtenant of the Block. From the recitals of Ex.A1 it is categorically established that the plaintif is not entitled to make any construction in the open space meant for all house owners.

Therefore, the construction of toilets by the plaintif on the rear side of plaint schedule property is unauthorized one. If really the plaintif has obtained permission from the defendant-corporation at the time of construction toilet room in the plaint schedule premises, she would have filed the approval got by her from the defendant-corporation for construction of toilet room in the plaint schedule property. Admittedly, the plaintif has not filed any piece of document to show that she has obtained permission from 8 defendant-corporation for construction of toilet room in the plaint schedule property.

14.From the conjoint reading of the evidence of PW1 along with

Ex.A1 shows that the plaintif is not entitled to make any construction in the plaint schedule property and that the construction of toilet room in the plaint schedule property is without the permission of the defendant-corporation and she made construction by violating the terms and conditions mentioned in Ex.A1.

15.PW2 in his cross examination categorically admitted that all

the flat owners of this apartment have equal right over

the common space. As per rules prior permission is

necessary from Vice Chairman, Housing Board for making

any alteration or constructions to the flats in housing

board. From the categorical admissions of PW2 it is established that all the flat owners have got equal right over the common space and prior permission from Housing Board is necessary for making alterations or constructions to the flats.

16.As already discussed the toilet room is situated in the common space and the plaintif has no exclusive right over the said common space and that all the flat owners have got equal right over the common space. When such is the case, construction of toilet room in the open space which is on the rear side of plaint schedule property and that too without any permission from the defendant-corporation or from A.P. Housing

Board is in contraversion of the rules of defendant-corporation 9 and also in violation of conditions stipulated in Ex.A1 sale deed.

Therefore, it can be said that the construction of compound wall and toilet in the open space is unauthorized construction without any permission. Ex.A2 to Ex.A5 documents do not confer any right to the plaintif to make construction of toilet room in the plaint schedule property.

17.DW1 in his cross examination stated that they orally

instructed the plaintiff for removal of unauthorized

construction and no notice was issued in this regard. The

unauthorized construction i.e. toilet is on rear side i.e. on

eastern side of the plaint schedule property.

18.DW2 in his cross examination stated that his predecessor

has visited the plaint schedule property and for visiting

no notice is required to be given to the plaintiff. As per

the Housing Board Regulations if any construction is to be

made in common area, prior information is to be given

and the plaintiff had constructed washrooms (toilet room)

in the common area and also erected grill in the common

area.

19.From Ex.A1 and from the evidence of PW1 and DW2 a clear picture emerges that the plaintif had made construction of toilet and compound wall in the open space which meant for all the flat owners and which is common area and that too without obtaining permission from the defendant-corporation. Ex.A5 photographs are confronted to DW2 and on seeing Ex.A5 photographs DW2 stated that the unlawful constructions in the old M.I.G. Blocks and 10 they are taking action against some of them and also started demolition of unauthorized construction by following due process of Law. Ex.A5 photographs though shows that there are some other unauthorized constructions in old M.I.G. Blocks, but under the guise of the admission made by DW2 with regard to unauthorized constructions the plaintif cannot take shelter to protect her unlawful and unauthorized construction of toilet room in the plaint schedule property.

20.The evidence of PW1 and PW2 is silent with regard to the staf of defendant-corporation who allegedly entered into plaint schedule property on 28.03.2017 and threatened the plaintif with dire consequences. The plaint is silent as to how many persons of defendant’s staf came to the suit schedule property, their designation and other details. If really staf of the defendant-corporation tried to enter into the plaint schedule property and threatened the plaintif to demolish the toilet room in the plaint schedule property, what prevented the plaintif not to initiate criminal action against the defendant staf who allegedly entered in to the plaint schedule property.

21.On the other hand DW2 in his evidence stated that for visiting the plaint schedule property no notice is required to be given to the plaintif. Since, no decision for demolition of toilet and compound wall and other constructions in the plaint schedule property is being taken the procedure under section 452 of H.M.C

Act was not adopted.

11

22.From the evidence of PWs.1 & 2 and DWs.1 & 2 it is clearly established that the staf of the defendant entered into the plaint schedule property only for visiting the same but not to demolish the unauthorized constructions in the plaint schedule property. If really the defendant had taken action against the unauthorized constructions made in the plaint schedule property, he would have given notice to the plaintif to call for her explanation. But admittedly no notice was served on the plaintif regarding demolition of construction made in the plaint schedule property.

Therefore, the plaintif failed to establish the cause of action for the suit. For this reason also the suit filed by the plaintif is not maintainable.

23.The learned counsel for the defendant filed written arguments stating that the common place in the ground floor is meant for the use of the entire habitants of the particular block and there is no individual ownership to anybody. But plaintif constructed the bathroom, toilet and also compound wall in the common open space without any authority. Further the plaintif constructed the same without obtaining permission from the defendant-corporation. The imposition of the tax by the defendant corporation to the building of the plaintif is not at all permissible to continue any unauthorized constructions. The staf of the defendant-corporation never tried to remove the unauthorized construction illegally as alleged by the plaintif. In view of the same there are no bonafides to file the suit by the plaintif against the defendant-corporation. The plaint does not 12 disclose the cause of action and the alleged cause of action is created for the purpose of filing the suit. There is no prima facie case and balance of convenience in favour of the plaintif to grant the relief of permanent injunction. Hence, the defendant prayed to dismiss the suit.

24.From the above discussion this court is of considered view that the construction of toilet in the plaint schedule property is unauthorized one. Accordingly, this issue is answered against the plaintif.

ISSUE NO.1:

25.In view of finding on Issue No.2, it is established that the construction of toilet in the plaint schedule property is unauthorized construction. Hence, the plaintif is not entitled for permanent injunction in respect of plaint schedule property.

Accordingly, this issue is answered against the plaintif.

ISSUE NO.3:

26.In the result, the suit is dismissed with costs.

Dictated to the Stenographer, transcribed by her,

corrected by me and pronounced by me in the open court, this, the 05th day of March, 2019

Principal Junior Civil Judge,

Vijayawada. FAC: IAJCJ/VJA

APPENDIX OF EVIDENCE

Documents marked :

For Plaintif : PW1: Pabbati Prameela Rani PW2: Alapati Gayatrhi Devi

For Defendant: DW1: Gandham Prasad DW2: P. Sesha Saila 13

DOCUMENTS MARKED FOR

For Plaintiff : Ex.A1:Original title deed bearing Doc.No.15693/2004 Ex.A2:Original property tax demand notices number in 8 dt.27.11.2006 to 07.07.2016 Ex.A3:Electricity demand with payment bill pertaining to the plaint schedule property Ex.A4:Three photographs pertaining to the plaint schedule property with C.D. Ex.A5:Photos 31 in number showing unauthorized constructions in the entire old MIG Blocks

For defendant : ---NIL---

P.J.C.J., VJA.

FAC: IAJCJ/VJA 14

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE –

CUM-1st Addl. METROPOLITAN MAGISTRATE :: VIJAYAWADA

PRESENT: SMT. T. MALLESWARI

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, FAC:I Addl.Junior Civil Judge-cum-1st Addl. Metropolitan

Magistrate,

VIJAYAWADA

Thursday this the 07th day of March, 2019.

C.C.No.649/2018

Between: M/s. Shriram City Union Finance Limited, a regd company doing finance business having its head office at 3rd floor, Mookambika complex, 4th lady desika road, Mylapore, Chennai, and having branches all over A.P. amongst one at Ibrahimpatnam Branch, rep. by its Authorized person Sri. U. Kanaka Rao, S/o Appa Rao, aged about 29 years, Senior Office Assistant, R/o Vijayawada Krishna District

........Complainant

And

Revathi Rani Pallepu, W/o Chitti Babu, Hindu, aged about 28 years, R/o D.No.15-72, Nunna, Vijayawada rural, Krishna District.

........Accused

This case is coming on 07-02-2019 before me for final hearing in the presence of Sri K. Srinivasa Rao, Advocate for complainant and of Sri O. Gawaskar, Advocate for the accused and the matter having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.This complaint is filed by the complainant against the accused for the offence punishable under Section 138 and 142 of Negotiable Instruments Act.

2.The brief averments of complaint are as follows.

The accused availed the loan amount of Rs.2,50,000/- from the complainant and executed loan agreement and other 2 necessary documents in favour of the complainant and agreed to repay the loan amount in 24 equal monthly installments of

Rs.13,542/- with interest 15% p.a. and the accused executed the necessary loan documents in favour of the complainant company on the same day along with guarantors. The complainant company opened an account in the name of the accused in their account books under Account

No.UBPATFW1208080001. After filing the arbitration case

No.1785/2013 before the sole arbitrator Sri. P.V.V.Vara Prasad at

Vijayawada the accused issued a cheque No.802204 drawn on

State Bank of India, Nunna, Krishna District for Rs.3,00,000/-

dated 18.01.2016, towards discharge of the loan debt amount

to the complainant. The complainant presented the cheque with its banker Axis Bank Ltd., Matha Towers Patamata,

Vijayawada dt.18.01.2016 for collection. The said cheque was dishonoured with the endorsement “Other Reason” on 02.02.2016 to the complainant along with the memo issued by the accused banker. The complainant informed the same and demanded the accused orally and also got issued the statutory notice dt.18.02.2016 demanding to pay the proceeds of the cheque within 15 days. The accused received legal notice but failed to comply the demand of the complainant. Hence, the complaint.

3.The present complaint was taken on file for the offence punishable U/s.138 of Negotiable Instruments Act and numbered as C.C.No.108/2017 on the file of Hon’ble Chief 3 Metropolitan Magistrate Court, Vijayawada. Subsequently, the record was transferred to this court as per the proceedings of

Hon’ble District Court, Krishna, Machilipatnam in Dis.No.1575

dated 22-02-2018 and re-numbered as C.C.No.649/2018.

4.On appearance of the accused, copies were furnished to him as per section 207 of Cr.P.C. The accused was examined

U/s.251 of Cr.P.C for the offence punishable U/s.138 of

Negotiable Instruments Act and when the particulars of the accusation was read over and explained to her in Telugu, she pleaded not guilty and claimed for trial.

5.In order to prove the complainant’s case, the authorized person on behalf of the complainant company was examined as PW1 and got marked Ex.P1 to P5.

6.After closer of complainant evidence, the accused was examined U/s.313 Cr.P.C by explaining the incriminating evidence available against her which was deposed by PW1 for which she denied the same and reported no defence evidence.

7.Heard both sides. Perused the record.

8.Now the points for determination are:

1. Whether there is legally enforceable debt between the complainant and the accused for issuance of Ex.P1 cheque?

2. Whether the complainant is able to establish the guilt of the accused for the offence punishable under section 138 and 142 of N.I. Act beyond all reasonable doubt?

3. To what relief?

4 POINT No:1

9.PW1 in his chief examination affidavit stated that the complainant is a registered company doing finance business.

The accused approached the complainant for financial assistance and the complainant sanctioned the loan amount of

Rs.2,50,000/- to the accused and the accused executed loan agreement and other necessary documents in favour of the complainant and agreed to repay the loan amount in 24 equal monthly installments of Rs.13,542/- with interest 15% p.a. The complainant company opened an account in the name of the accused in their account books under Account

No.UBPATFW1208080001 under Ex.P5. After filing the arbitration case No.1785/2013 before the sole arbitrator Sri.

P.V.V.Vara Prasad at Vijayawada the accused issued a cheque

No.802204 under Ex.P1 drawn on State Bank of India, Nunna,

Krishna District for Rs.3,00,000/- on 18.01.2016, towards discharge of the loan debt due to the complainant. The complainant presented the said cheque in its bank i.e. Axis

Bank Ltd., Matha Towers, Patamata, Vijayawada on 18.01.2016 for collection and the said cheque was returned dishonoured with an endorsement “Other Reason” on 02.02.2016 and sent return memo to the complainant bank by the accused banker under Ex.P2. The complainant got issued the statutory notice on 18.02.2016 under Ex.P3 demanding the accused to pay the cheque amount within 15 days from the date of receipt of legal notice. The accused received legal notice under Ex.P4 but 5 failed to comply the demand of the complainant.

10.PW1 in his cross examination stated that the

signature on the affidavit, complaint and vakalath does

not belong to him. Earlier another staff represented for

evidence and he signed in the complaint and vakalath.

The earlier staff by name U. Kanaka Rao resigned from

the company and he signed on the Vakalath. No

document pertaining to authorization given to the I.V.

Prasad for authorizing him to give evidence is placed

before this Court.

11.From the cross examination of PW1 it is established that the earlier staff of the complainant company U. Kanaka

Rao who filed Vakalath and complaint has resigned to his job and no authorization of PW1 is being filed to give evidence in this case on behalf of complainant company. When there was no authorization to PW1 to give evidence on behalf of complainant company, the PW1 has no locus standi to give evidence and that his evidence has no sanctity in the eye of

Law. Therefore, the complaint is also not maintainable.

12.The learned counsel for the accused relied on the following decisions in support of his case. 2006 (1) ALD (Crl.)

180 (AP) – M.G. Brothers Automobiles Ltd. Vs. B.

Masthan Reddy and another – wherein it is held that

complaint filed in the name of payee company-Assistant

Manager who filed complaint representing company,

6

not authorized by company to file criminal complaint

against accused on behalf of company. Even at trial

complainant company has not filed any memorandum of

articles of association authorizing him to represent

company. The accused cannot be convicted on such

complaint.

13.PW1 in his cross examination further stated that in

the notice and in the complaint the date when the

complainant company lend the amount to accused is not

stated and the monthly EMIs so far paid by the accused

are also not mentioned in the notice and complaint. For

how much amount accused issued Ex.P1 cheque also not

mentioned in the notice and in the complaint. Admittedly, in Ex.P3 legal notice or in the complaint or in chief affidavit of

PW1 the date of alleged amount lend to the accused is not mentioned and so also the number of monthly installments paid by the accused and also the principal amount due by the accused. If really the accused had availed loan from the complainant chit fund company the said details ought to have been mentioned in the Ex.P3 legal notice, in the complaint and also in the chief examination affidavit of PW1. There is no evidence on record to show that the accused indebted to the complainant and towards discharge of the said debt the accused issued Ex.P1 cheque. No scrap of record has been placed by the complainant to show that the accused availed loan from the complainant chit fund company. In the absence of 7 the above details in Ex.P3 legal notice, in the complaint and also in the chief affidavit of PW1, the conduct of complainant is to be doubted.

14.PW1 in his cross examination further stated that as

per the record available with the complainant company

the accused borrowed amount in the year 2012. No

fresh agreement or renewal for the said loan has been

obtained from the accused after completion of the 3

years of the said loan. From the said admission made by

PW1 it is clear that the alleged loan availed by the accused even if admitted to be true is a time barred debt and there is no renewal for the said loan after completion of three years of loan. Therefore, it can be said that there is no legally enforceable debt due by the accused to the complainant. For this reason also the complaint is not maintainable.

15.The learned counsel for accused relied on folling judgment in support of his case. 1997 (2) Crimes 658 (AP) –

Girdhari Lal Rathi Vs. P.T.V. Ramanujachari and another – wherein it is held that complaint in his evidence stated

that respondent had taken a loan which had not been

stated in the complaint. No amount of evidence could

be looked into without allegations made in complaint.

Alleged loan had been advanced in 1985 and cheque

was issued in 1990. Debt had become time barred when

cheque was issued. By issuance of cheque, limitation

was not extended. No fault could be found with

8 acquittal.

16.PW1 in his cross examination stated that the accused

issued cheque at the time of arbitration proceedings to

the Arbitrator towards discharge of loan due to the

complainant. If really the accused is due of any amount to the complainant, the accused would handover Ex.P1 cheque to the complainant but not to the arbitrator. Even if the version of

PW1 is considered to be true, it is for the complainant to explain why and how Ex.P1 cheque came to the possession of the complainant/PW1 when the accused issued Ex.P1 cheque to the Arbitrator. The said fact is unexplained by the complainant.

Hence, it can be said that Ex.P1 cheque is not issued by the accused to the complainant towards discharge of legally enforceable debt.

17.PW1 in his cross examination stated that he has not

filed any documents connecting to the loan transaction

before this Court in the present complaint. Complainant

has not filed any civil suit against the accused

pertaining to the said loan and not issued any legal

notice prior to the institution of the present Complaint

demanding accused for the discharge of debt. The

particulars of loan are not stated either in his complaint

or in chief affidavit or in legal notice. As discussed earlier the complainant did not file any documentary proof to show that the accused availed loan from the complainant. Further the complainant did not file any civil suit against the accused 9 for recovery of the alleged loan availed by the accused from the complainant. If really the alleged loan is true, what prevented the complainant not to file documents to show the alleged loan availed by the accused and not to show the alleged loan particulars in the complaint, or in chief affidavit or in the legal notice under Ex.P3. All these aspects makes the case of the complainant highly doubtful. The conduct of the complainant is not that of an ordinary prudent person and it is suspicious.

18.PW1 in his cross examination further admitted that in

Ex.P3 legal notice it is mentioned that accused executed

promissory note in favour of the complainant for

Rs.2,50,000/-. But in the complaint or in chief affidavit

the execution of promissory note by the accused is not

stated. Though in Ex.P3 it is stated that the accused executed promissory note for Rs.2,50,000/- but the date of alleged execution of promissory note is not mentioned in Ex.P3. Further the alleged execution of Promissory note by the accused is not mentioned in the complaint or in the chief affidavit of PW1.

There is no explanation from the complaint as to why he did not mention the alleged date of execution of promissory note by the accused in his favour in the complaint or in his favour

Chief affidavit. Moreover, there is no explanation from complaint as to why he did not file the alleged pronote note along with his complaint.

19.PW1 in his cross examination further stated that the 10

details pertaining to the payment towards loan amount

i.e. EMI and the amount outstanding amount also not

stated in the complaint and in his chief affidavit. In the

complaint or in his chief affidavit he did not state that

amount of Rs.3,11,446/- is due by the accused on

02.03.2016. When the said amount is not mentioned in the complaint or in the chief affidavit, how the complainant arrived the said amount which is alleged to be due by the accused as on 02.03.2016. The lacunas in the evidence of Pw1 is fatal to the case of complainant.

20.The learned counsel for the accused relied on the following judgments in support of his case. 2008 CRL. L.J.452

(SC) – M/s. Rahul Builders Vs. M/s. Arihant Fertilizers &

Chemicals and another – wherein it is held that failure on

the part of the appellant to serve a proper notice

strictly in terms of proviso appended to Section 138 of

N.I.Act whether would lead to quashing of a criminal

proceedings. An omnibus notice without specifying as

to what was amount due under dishonoured cheque

would not subserve the requirement of law. Criminal

proceedings are liable to be quashed.

1. III (2018) BC 195 (Raj) – Shri Ram Transport

Finance Co. Ltd. Vs. State of Rajasthan and another –

wherein it is held that the complainant finance company

lodged a complaint against the respondents with the

allegation that the complaint company advanced loan

11

for purchasing a vehicle. With the said loan amount, the

Respondent No.2 purchased an Ashoka Leyland vehicle.

The accused handed over a cheque No.102090

dt.23.09.2008 for a sum of Rs.6,83,000/- to the

applicant finance company for the full and final

repayment of loan amount. The said cheque was

dishonoured with the remark of funds being insufficient

and the notice sent to the accused U/s.138 of N.I.Act

was refused to accept the same. Hence, the complaint.

It is common knowledge that finance company do

collect blank signed cheques of the loanees by way of

security at the time of advancing the loan. Admittedly,

no document pertaining to the loan account of the

accused was exhibited and proved by the complainant.

The witness in his cross examination conceded that he

do not know as t when the cheque was presented, when

it was returned and for what reason the same was

dishonoured. Neither the date of advancement of loan

nor the exact amount thereof was disclosed by the

complainant either in the plaint or in evidence. The hire

purchase agreement under which the loan was allegedly

advanced to the accused was not exhibited. The exact

status of the loan account was also not clarified by the

complainant in the complaint or evidence. These

lacunas appear in evidence to be fatal to the

complainant’s case. Hence, the acquittal by the

12 appellate court is right and proper.

2.2017 (3) ALT (Crl.) 358 (AP) – Dr. Myneni Samba Siva

Rao Vs. State of A.P rep by Public Prosecutor, High

Court of A.P. and another – wherein it is held that the debt

or other liability within the meaning of existence of

legally enforceable debt or liability does not cover for

any advance payment for supply of goods once the

goods are not supplied for the cheques given as

advance.

21.From the foregoing discussion in the above paragraphs this court is of considered view that the complainant failed to establish the legally enforceable debt between him and the accused. Accordingly, this point is answered against the complainant.

POINT NO.2

22.In view of finding on point No.1 it is established that the complainant failed to establish the legally enforceable debt between him and accused. Hence the complainant failed to establish the guilt of the accused for the offence under section 138 and 142 of N.I. Act beyond all reasonable doubt.

Accordingly, this point is answered against the complainant.

POINT NO.3

23.In the result the accused is found not guilty for the offence under section 138 and 142 of Negotiable Instruments

Act and she is acquitted under section 255(1) of Cr.P.C. The bail 13 bonds of accused shall stand canceled after appeal time is over.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in the open Court on this the 07th day of March, 2019.

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, Vijayawada. FAC:I AJCJ/VJA

Appendix of Evidence

Witness examined

FOR COMPLAINANT:

PW1: K. Samba Siva Rao

FOR ACCUSED:-

-NIL-

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.P1:Original cheque bearing No.802204 dt.18.01.2016 issued by the accused in favour of the complainant for an amount of Rs.3,00,000/- Ex.P2:Net copy of cheque return memo issued by the SBI dt.02.02.2016 Ex.P3:Office copy of the legal notice got issued on behalf of the complainant to the accused dt.18.02.2016 Ex.P4:Postal acknowledgment for Ex.P3 by the accused dt.24.02.2016 Ex.P5:Statement of account maintained by plaintiff company in the name of accused dt.07.09.2012 to 02.03.2016

FOR DEFENCE:-- ----None--

Principal Junior Civil Judge – cum -

Metropolitan Magistrate, Vijayawada. FAC:I AJCJ/VJA 14

1

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

METROPOLITAN MAGISTRATE :: VIJAYAWADA

PRESENT: SMT. T. MALLESWARI

Principal Junior Civil Judge – cum -

Metropolitan Magistrate,

VIJAYAWADA

Wednesday this the 30th day of October, 2019.

C.C.No.545/2019

Between: State – Represented by Sub-Inspector of Police, A.S.Nagar P.S.,

Vijayawada City. ... Complainant

And

Shaik Sambasivarao S/o. Masthanrao, age:23 years, C/Muslim, Chinna Nandigama Village, G. Konduru Mandal.

... Accused.

This case is coming on 24-10-2019 before me for hearing in the presence of the learned APP for prosecution and of Sri V. Ramesh Kumar Legal aid counse for the accused and upon hearing having stood over to this day for consideration, this court, delivered the following:

J U D G M E N T

1. The Sub Inspector of Police, A.S Nagar Police Station, filed the charge sheet against the accused in Cr.No.221/2019 alleging commission of offence

Under Section 379 or 411 of Indian Penal Code.

2. The case of the prosecution in brief is as follows:

LW1/Yedula Ranga Reddy is the de-facto complainant. On 6-7-2019 at 20.00 hrs LW1 came to P.S and presented a report stating that he is the resident of D.No.43-132-2/1, Krishna Hotel center, Singhnagar, Vijayawada.

He is working in hotel. He is having Hero Honda Passion Plus motor cycle bearing No. AP-16 BJ 4195 for his own. On 25-5-2019 at about 10.00hrs he went to hospital on his motor cycle and returned to house afternoon at 12.30 hrs and parked the motor cycle in front of his house by locking it. Then LW1 went into house, afternoon at 14.30 hrs with intent to go out when he came out from house he found his motor cycle missing from the place where it was 2 parked. LW1 held searches all around his residential area, bus stand and railway station, but his efforts ended in vain. Some un-known offender committed theft of his motor cycle and decamped with booty. Basing on the report of LW1, LW8 registered FIR in Cr.No.221/2019 under section 379 IPC and investigated and visited the scene of offence, inspected the scene, prepared a rough sketch and recorded statements of LWs.1 to 4. LW9 verified the investigation done by LW8 and investigated into. Lw7/K. Eswara

Rao, SI of Mylavaram PS arrested the accused and juvenile in conflict with law on 7-7-2019 at 17.00 hrs at Y-Junction, Mylavaram in the presence of mediators.

3. Upon filing of the charge sheet the case was taken on file for the offence Under Section 379, or 411 of Indian Penal Code and copies of the case record were furnished to the accused as required U/sec. 207 of Cr.P.C.

4. The accused was examined U/sec. 239 of Cr.P.C and the charge for the offence Under Section 379 or 411 of Indian Penal Code against the accused was framed and contents of the said charge was read over and explained to the accused in Telugu, for which he pleaded not guilty and claims for trial.

5. On behalf of prosecution PWs1 to 5 were examined and Ex.P1 to P4 and

MO-1 are marked.

6.After closure of prosecution evidence, the accused was examined

U/sec.313 Cr.P.C. and he denied the incriminating evidence found against him.

7. Heard arguments. Perused the record.

8Now the points for determination are

1. “Whether the prosecution is able to prove the guilt of the accused for the offence under section 379 or 411 of IPC?”beyond all reasonable doubt?

2. To what relief?

3

POINT No.1 :

9. Pw1 in his chief examination stated that he has passion plus bike bearing No. AP 16 B J 4195. On 25-5-2019 at 12.30 PM he parked his bike in front of his house, after coming back from hospital. At about 2.30 pm he came out from his house and found that his bike was missing. He made search for his bike in and around of his house but in vain. Later he gave report to the police. After one month police informed him that his bike was recovered.

10. PW1 in his cross examination stated that he did not file documentary proof to show that the bike bearing no. AP 16 B J 4195 stands on his name and he is the owner of the said bike. The registration certificate for the said bike stands in the name of Dayakar. The place of committing of theft of bike is a busy area and the people are moving around the said place. The CC

Cameras are at a distance of 100feet from the place of committing of theft.

He gave Ex.P1 report to the police on 6-7-2019 and his bike was subjected to theft on 25-5-2019. After one month of Ex.P1 report the police informed him that his bike was recovered. He never seen the accused.

11. When the bike of the PW1 was committed to theft on 25-5-2019, Ex.P1 report was given to the police by the PW1 on 6-7-2019. There is no proper explanation from the prosecution as to the delay in giving Ex.P1 report by the complainant. There is time gap of 45 days between the date of theft of bike of PW1 and the date of giving report to the police by PW1. Even if the

PW1 has made search for his bike, there should not be inordinate delay of 45 days in giving Ex.P1 report. Therefore, the delay in giving Ex.P1 report by

PW1 makes the case of prosecution doubtful.

12. Further PW1 did not file registration certificate pertaining to the bike subjected to theft, to show that he is the owner of the said bike. From the 4 evidence of PW1 it is categorically established that one Dayakar is the owner of the bike which was subjected to theft. It is also not the case of the prosecution that the PW1 purchased the said bike from the real owner

Dayakar. Even if PW1 has purchased the said bike from the said Dayakar, the prosecution must have file documentary proof to show that the PW1 is the owner of the said bike and got changed his name in the RTO office and got

RC for the said bike. Hence, the prosecution failed to establish that the PW1 is the owner of the bike bearing No. AP 16 B J 4195.

13. PW2 in his chief examination stated that he is working as VRO

Penamaluru. Previously he worked as VRO, Mylavaram from June 2016 to

July 2019. On 7-7-2019 he was called by the SI of Police Mylavaram to attend in the police station. Accordingly, he went to Mylavaram police station and by that time LW6 was present in the police station. On 7-7-2019 at 5.00pm the SI of Police Mylavaram PS took him and PW6 to Borragudam,

Bypass road, Mylavaram. At the said place three persons were coming on a tractor and on seeing the police they tried to escape. The police caught hold them and on enquiry they revealed that they committed theft of the said tractor. The accused herein confessed that he is accused No.1 in

Cr.No.170/2019 of Mylavaram PS and he committed theft of the bike i.e.,

Passion Plus bike bearing No. AP 16 B J 4195 in the limits of Ajithsingh nagar

PS. PW2 further stated that on confession made by the accused the police seized MO-1 i.e., Passion Plus bike bearing No.AP 16 BJ 4195 from the possession of the accused under cover of mediators report. Ex.P2 mediators report contains his signature. The police arrested the accused herein and two others in Cr.No.170/2019 of Mylavaram PS.

14. In the cross examination of PW2 stated that in Ex.P2 except his name no other particulars of him are mentioned. MO-1 I.e., Passion Plus 5 bike bearing No. AP 16 BJ 4195 was seized by SI of Police, Mylavaram in the presence of him and LW6.

15. PW4 is SI of Police Ajithsinghnagar PS. PW3 in his chief examination stated that on 7-7-2019 he received CD file from LW8 i.e.,A. Subba Rao, ASI,

Ajithsinghnagar PS and found the investigation done by him was on correct lines. On 7-7-2019 he received information from PW5 about the arrest of the accused and recovery of MO-1 from the accused and on that he received MO- 1 from PW5 and obtained PT Warrant from the court and produced the accused before the court on 11-7-2019 and after completion of investigation he filed charge sheet against the accused for the offence under section 379 or 411 IPC. PW3 was not subjected to cross examination by the accused and cross examination reported nill.

16. PW4 is ASI of Ajithsinghnagar PS. He stated in his chief examination about receiving report from PW1 and registering the same as Cr.No.221/2019 under section 379 IPC and issuing FIR under Ex.P3, his recording statement of PW1, visit of scene of offence, preparation of rough sketch under Ex.P4, recording 161 Cr.P.C statements of LW2 K. Suryanarayana Chari, LW3 S. Ajay

Kumar, LW4 Y. Naresh Reddy. During cross examination of PW4 stated that he does not know whether CC camara is working at Krishna Hotel center or not. MO-1 is received by PW3 from PW5.

17. PW5 is SI of Police, Mylavaram PS. PW5 in his chief examination stated that on 7-7-2019 at 5.00 pm on reliable information, he secured the presence of PW2 and LW6 V. Tirupathi Rao and along with his staff they went to Borragudam, Y-Junction, Mylavaram Road. There they found one tractor along with trolly and there are three persons in side the tractor and there are three motor cycles in the tractor. On seeing the police they tried to sulk away and PW5 caught hold them with the help of his staff. When they were enquired individually by PW5, in the presence of mediators, they revealed 6 their names and identity particulars as one Shaik Sambasiva Rao, (2)

Kondapalli Rama Krishna, (3) Mylavaram Koteswara Rao. The accused in this case confessed about the commission of offence in the present case and in pursuance of confession made by the accused, they recovered MO-1 from the accused under Ex.P2 mediators report. The accused herein and two other accused confessed about other property offences and recovered the property from them pertaining to other crimes. They arrested the accused herein along with two other accused in Cr.No170/2019 of Mylavaram PS and informed about the arrest of the accused and recovery of the case property in the present case i.e., in Cr.No.221/2019 of Ajithsinghnagar PS, to theSHO

AS nagar PS and he handed over MO-1 to the SHO AS Nagar PS under proper acknowledgment.

18. During the cross examination of PW5 stated that Ex.P2 was prepared at Borragudam, Y-Juntion in the presence of mediators. He does not remember who scribed Ex.P2. In Ex.P2 the other staff who accompanied him was not mentioned. In Ex.P2 the name of the person who scribed Ex.P2 was not mentioned. The keys for the three bikes were not seized by him as there were no keys to the said bikes. He has not examined the local persons at the scene of offence.

19. From the evidence of PW1 it is established that he has not seen the accused. Therefore, the evidence of PW1 in identifying the accused and the involvement of the accused in the present case is not established. Basing on the confession made by the accused in Cr.No.170/2019 of Mylavaram PS,

PW5 prepared seizor report and handed over MO-1 to PW4. Therefore, there is no evidence on record to establish the involvement of the accused in the commission of offence for the offence under section 379 IPC. Therefore, the prosecution failed to establish the involvement of the accused in committing theft of MO-1 i.e., Passion Plus bike bearing No.AP 16 BJ 4195 by the 7 accused. But from the evidence of PW2 to 5 the prosecution could able to establish the offence under section 411 IPC since MO-1 was recovered from the possession of the accused. Therefore, the prosecution failed to prove the guilt of the accused for the offence under section 379 IPC and established the guilt of the accused for the offence under section 411 IPC. Therefore, the accused is found guilty for the offence under section 411 IPC.

20.The accused was heard with regard to quantum of sentence to be imposed on him for the offence under section 411 IPC for which he stated that his whole family depend on him and he is the sole bread winner of his family. Keeping in view of the facts and circumstances of the case and the nature of the offence this court is not inclined to apply the provision of section 360 of Cr.P.C.

POINT NO.2

21.In the result the accused is found not guilty for the offence under section 379 IPC and the accused is acquitted under section 248(1) Cr.P.C for the offence under section 379 IPC. The accused found guilty for the offence under section 411 IPC and sentenced to undergo simple imprisonment for a period of three months. The remand period undergone by the accused shall be set off under section 428 (1) Cr.P.C. Since the accused already in detention for a period of more than 90 days during the investigation and trial of the case, the period of detention is set off under section 428(1) Cr.P.C and the accused is set at liberty forthwith. MO-1 is ordered to be returned to be claimant/owner after lapse of appeal period.

Dictated to my dictation by the Stenographer, corrected and pronounced by

me in the open court, this, the 30th day of October, 2019

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

METROPOLITAN MAGISTRATE

VIJAYAWADA.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTIONDEFENCE

PW1:Y. Ranga Reddy ---None--- PW2:P. Deva Priyudu PW3:G. Phanendhar PW4:A. Subba Rao PW5:K. Eswara Rao

DOCUMENTS MARKED FOR

PROSECUTION: DEFENCE:

Ex.P1: Report dated 6-7-2019 ---None---- Ex.P2: Mediators report dated7-7-2019 Ex.P3: FIR in Cr.No.221/2019 Ex.P4: rough sketch

MATERIAL OBJECTS MARKED

MO.1: Passion Plus Bike bearing No.AP 16 BJ 4195.

PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

METROPOLITAN MAGISTRATE:

VIJAYAWADA.

9