Smt V.A.L.Satyavathi

Crl.Appeal No.48-19-1-VI ADJ Court, Knl

In the Court of the Special Judge for Trial of Cases under SCs & STs (PoA)

Act –cum- VI Additional Sessions Judge, Kurnool.

Present: - Smt V.A.L. Sathyavathi,

Special Sessions Judge for trial of cases under SCs & STs (PoA) Act –cum- VI Additional District and Sessions Judge, Kurnool

Monday, the 17 th day of May, 2021

CRIMINAL APPEAL No.48/2019

From what Court the appeal isSpecial Judicial Magistrate of First Class, preferred.(Proh.&Excise), Kurnool

No. of the case in that CourtC.C.No.434/2016

No. of the appealCriminal Appeal No.48/2019

Name and description of theMr. Natti Kumar, S/o N.Venkat Rao, aged about appellants47 years, Occ: Business, Proprietor M/s. Vishaka Talkies, R/o Plot No.36, Madura Nagar Colony, Bollaram, Secundrabad.

The sentence and law under whichAccusedisfoundguiltyfortheoffence u/Sec.138 of N.I. Act and to pay compensation it was imposed in the lower court amount of Rs.Rs.6,00,000/- (Rupees six lakhs only) with interest at 9% per annum from the date of filing of the complaint within one month from today to PW1, IDSI for three months. The award of compensation and in default sentence shall run consecutively.

Whether confirmed, modified orDismissed revised and if modified, the In the result, this appeal is dismissed. modification.

Date of filing06-05-2019 Date of presentation06-05-2019 Date of notice issued by the court08-05-2019 to appear. Date of bail bonds, if the appellant-- let out on bail. Date of appellants/respondents25-06-2019 ordered to appear. Date of hearing06-04-2021 Date of judgment17-05-2021

versus

1. M/s SRR Creations, a Registered Partnership Firm, having office at 501, RRV Apartment, Yousfguda Checkpost, Hyderabad. Rep. by its authorized person and Partner B.Bhaskar, S/o B.Rangaiah, aged 65 years, R/o Flat No.401, Raagam Residency, Vikram Hospital, Anjani Nagar, Madapur, Hyderabad.

Crl.Appeal No.48-19-2-VI ADJ Court, Knl

2. The State of Andhra Pradesh, through Public Prosecutor.

…Respondents/Complainant

ThisCriminalAppealcomingon06.04.2021beforemeinthe presence of Sri S. Srinivasa Rao and Sri K. Bala Ramudu, Advocates for the appellant/accused and Sri K. Ramakrishna Reddy, Advocate for the Respondents/Complainant and having stood over for consideration till this day, this Court passed the following:-

J U D G M E N T

This criminal appeal is filed by the appellant/accused in C.C.

434/2016 against the orders of conviction passed by learned Special

JudicialMagistrateofFirstClass(Proh.&Excise),Kurnooldated

10.04.2019.

02.Thecase of thecomplainantascouldbe seenin the complaint, in brief is as follows:

The complainant is the one of the partner of M/s. SRR

Creations, Registered Partnership firm, Hyderabad. Accused is the producer of the movies. On 2.11.2011, the accused entered into an agreementwiththecomplainant,aspertheagreementthe complainant assigned to the accused the sole and exclusive Copyrights of Distribution, execution and exploitation of the film “Jagathguru Sri

Shirdi Saibaba” through entire television electronic and digital media, exclusiveCopyrightsforbroadcastingthesaidfilmthroughany satellite system,world satelliteTV, Free TV etc.Under the said agreementtheaccusedagreedtopayasumofRs.17,00,000/- (RupeesSeventeenLakhs)tothecomplainantforthesoleand exclusive ownership over the rights specified in the Clause No.1 of the agreement dated 02.11.2011 for the entire world on perpetual and permanent basis from the first release of the film in theaters, which is

Crl.Appeal No.48-19-3-VI ADJ Court, Knl to be paid at the time of release of film and the said amount will be full and final settlement. Towards the above said consideration the accused issued three cheques bearing No. 78, 79 and 80 in favour of the complainant for Rs.6,00,000/-, (Rupees six lakhs only) Rs.5,00,000/- (Rupeesfivelakhsonly)andRs.5,00,000/-(Rupeesfivelakhs only)respectively, while paying cash of Rs.1,00,000/- (Rupees one lakh only) on the date of agreement. The complainant, when contacted the accused for payment, he informed that the complainant could deposit the above said three cheques by putting the dates and the said dates are 20.9.2014, 20.10.2014 and 20.12.2014 respectively and asked the complainant to deposit the same in its Bank account by which time the accused would arranged the amount in his bank. Believing the version of the accused, the complainant presented the said cheques in his

Bank i.e., Oriental Bank of Commerce, Kurnool for encashment. But the cheques were dishonoured with an endorsement that the account closed. The complainant firm got issued a Statutory legal notice to the accusedon17.12.2014demandinghimtopaythesumof

Rs.6,00,000/- (Rupees six lakhsonly) covered under thecheque bearing No.78 within 15 days from the date of receipt of the said legal notice. The accused received the notice on 18.12.2014 but did not choose either to give reply or to make the payment good within the statutory period of the notice. Therefore, the complainant prays to punish the accused in accordance with law and award compensation in terms of section 357 of Cr.P.C.

03.The learned trial court, after taking cognizance, when the accused appeared before the court, copies of documents on which prosecution intends to rely upon, were furnished in terms of Section

Crl.Appeal No.48-19-4-VI ADJ Court, Knl 207 Cr.P.C.Then accused was examined under section 251 Cr.P.C.

having understood accused pleaded not guilty and claimed to be tried.

04.In the trial, one of the partners of complainant firm testified as PW1, and another partner of complainant firm was examined as

PW2, and Ex.P1 to P9 were marked. Ex.D1 was marked through PW1.

No oral evidence was adduced on behalf of accused. Thereafter, the incriminating material available on record was explained to the accused under section 313 Cr.P.C and he denied it.After considering the arguments advanced on both the sides, and the evidence available on record, learned trial court convicted the accused and directed the accused to pay compensation amount of Rs.6,00,000/- (Rupees six lakhs only) with interest at 9% per annum from the date of complaint within one month to PW1, in default to suffer simple imprisonment for a period of three months under section 138 of Negotiable Instruments

Act.

05.It is that judgment which is challenged in this appeal by raising various grounds of appeal and the following are the grounds of appeal raised by the appellant/accused.

06.Appellant/accused contends that the judgment of the lower court is against law, and weight of evidence.The trial court ought to have observed that the respondent/complainant as PW1 has clearly stated in cross examination that he did not file any document into court to show that SRR Creations Partnership firm produced the “Sri

Jagathguru Shiridi Sai Baba” picture. PW1 himself admitted that Ex.D1 is the Photostat copy of censor board certificate and the film was not produced by complaint firm and also admitted that in Ex.D1, the name

Crl.Appeal No.48-19-5-VI ADJ Court, Knl

B.V.Reddy mentioned and produced the film in individual capacity that was not taken into consideration.To consider legally enforceable debt the respondent/complainant was bound to clarify that the film was produced by complainant firm and the complainant failed to file any document to show that the firm is produced the film.The lower court ought to have observed that the respondent/complainant as PW1 has clearly stated in his cross examination that he did not file the firm registration certificate prior to 23.12.2014, Ex.P4 partnership deed it was mentioned that the commencement of business is 08.11.2014.

The complainant not filed any registration certificate of firm document to show that there is a partnership firm prior to 23.12.2014.The appellant/accused clarified that the complainant firm is not revised partnership firm and the same was not taken into consideration by the learned trial court.

07.Appellant/accused contends that the trial court ought to have observed that PW2 has clearly stated in his cross examination that he sent legal notice to accused as B.V.Reddy S/o B.R.C.Reddy

Proprietor of SRR Creations, butthe complaint filed by the SRR

Creations represented by its partner and having relied in P.Narasimha

Reddy Vs D.I. Narasimha Rao, reported in 2004 (2) ALT (Crl) 401 (A.P.).Thetransactionbetweentheappellant/accusedandthe respondent/complainant which is neither disclosed in the income tax returns as stated by PW2 in his cross examination.When the amount was not shown in the IT returns, it would become unaccounted money andtherebyitisnotlegallyrecoverable.Inthisregard,the appellant/accused relied on a judgment of Hon’ble High Court of

Crl.Appeal No.48-19-6-VI ADJ Court, Knl

Telangana and Andhra Pradesh (at Hyderabad) reported in 2017 Law

Suit (Hyd) 688, R. Chennakesava Rao Vs P. Lakshmi Narasaiah.

08.The appellant/accused contends that the lower court failed to see that in the complaint he states that the accused issued three cheques bearing Nos.78, 79 and 80 in favour of the complainant drawn on Andhra Bank, Jubile Hills Branch, Hyderabad for Rs.6,00,000/- (Rupees six lakhs only), Rs.5,00,000/- (Rupees five lakhs only) and

Rs.5,00,000/-(Rupees five lakhs only) respectively, and the trial court gave finding that the cheques were issued in the year 2014 without any document, as having observed in Avon Organics Limited, Hyd Vs.

Poineer Products Limited, New Delhi, reported in 2003 (2) ALD (Crl) 2019 (A.P).The trial court failed to see that in the partnership firm deed, dated 08.11.2014, Clause No.11, the powers of the Managing

Partner & Working Partner only given to appear for and represent above firm in connection with its said business and all affairs ancillary and incidental thereto. The B.V.Reddy has only power to file cases and give evidence and appoint an advocate and attend before the court.

The said B.V. Reddy has no power to give authorization letter to any person as per the partnership deed, and same was not taken into consideration by the lower court.The lower court ought to have dismiss the complaint as there cannot exist any legal enforceable debt or liability, and trial court ignored this crucial aspect and convicting the appellant without establishing the legally enforceable debt is unjust.

The lower court erred in holding the appellant/accused guilty of offence punishable u/s 138 of Negotiable Instruments Act and prayed to allow the appeal and set aside the judgment and conviction passed by the

Crl.Appeal No.48-19-7-VI ADJ Court, Knl lower court in C.C.No.434/2016, dated 10.04.2019, and acquit the appellant from the charges, in the interest of justice.

09. Point for determination is:

Whether the impugned judgment is erroneous on facts or in law requiring interference by this appellate court?

Point is answered:

10.Cheque in dispute is Ex.P5. It is drawn on Andhra bank, for

Rs.6,00,000/- (Rupees six lakhs only). It bears the date 20.09.2014.

It's number is 000078. Same is also mentioned in the complaint.It appearsmistakenlynumberofchequeandamountarewrongly mentioned in the evidence affidavits of PW1 and PW2.A reading of evidence of PW1 and PW2 shows that they are referring to Ex.P5 disputed cheque only. It is payable to SRR Creations. It purportedly contain the signature of the appellant /accused. In the original printed chequeunderneaththesignatureofappellant/accusedthereis printed matter that is ''for Visakha talkies ''. Evidence of PW1 and PW 2 is that the accused gave three cheques towards discharge of liability and the above cheque is one among them. The cause title in the complaint shows that accused is proprietor of M/s Visakha talkies.

Cause title further shows SRR creations is the complainant. Thus the accused / appellant is the drawer and the complainant /respondent is the payee. As per the averments in the complaint and the evidence of

PW1 and PW2 the cheque was given towards liability contained in

Ex.P2 agreement dated 02.11.2011 between the parties. While cross- examining PW2 it was elicited that in the office of PW2 accused handed over these cheques after filing the contents of them except the date. It

Crl.Appeal No.48-19-8-VI ADJ Court, Knl was further elicited that the accused told them to fill up the date. PW1 and PW2 deposed that when accused asked them to put the dates in cheques they put the dates.

11.During the trial of the case accused did not dispute the following facts. That cheque was drawn on an account maintained by him with the Bank and it bears his signature and he handed over them to PW2. While cross-examining PW1 it was suggested by the accused that he gave empty cheques to PW2 in connection with the transaction pertaining to a cinema theater. Witness denied it as false. While cross- examining PW1 it was suggested to him that the accused gave three empty cheques in connection with a film titled ‘Chattam’ and thereafter on 25.11.2014 accused paid Rs.1,50,000/- (Rupees one lakh fifty thousand only) towards full and final settlement,witness denied it as false. While cross-examining PW1 and PW2 accused did not deny the signature on the disputed cheque.

12.As per the evidence of PW1 and PW2 disputed cheque was presented for collection and it was written and pay on the ground that account of accused was closed. Ex.P6 is a cheque return memo, dated 03.12.2014. The correctness of the contents of this cheque return memo are not disputed by the accused at the trial. Thus, the cheque issued by the accused was dishonoured. The trial court in considering the evidence recorded a finding at para-14 and 15 of the judgment that the subject matter cheque was issued by the accused towards discharge of liability and it was dishonoured as the account of accused was closed.

Crl.Appeal No.48-19-9-VI ADJ Court, Knl

13.Though not mentioned in the grounds of appeal, in the written arguments the appellant had mentioned that to attract section 138 of Negotiable Instruments Act, there shall exist '' live account.”

14.This argument is against the law. The Supreme Court of

India in NEPC Micon limited vs. Magma Leasing Ltd., AIR 1999 SC 1952 held that account closed endorsement is equal to the NIL balance account and attracts the section 138 of Negotiable Instruments Act.

Hence this contention of appellant is negatived.

15.Learned trial court drew presumption under section 139 of

Negotiable Instruments Act and presumed that accused gave the cheque towards discharge of legally enforceable liability. It held that accused failed to show any probable defence and failed to rebut the presumption and found the accused guilty.

16.The connecting transaction between the parties is from Ex.P2 which is an agreement dated 02.11.2011. The evidence of PW1 and

PW2 and averments in the complaint show that both parties signed this agreement. As could be seen from the cross-examination of these witnesses the genuineness of this document is not disputed by the appellant /accused. The written arguments filed for the appellant also do not dispute Ex.P2 Agreement. A perusal of this document shows that it was executed by M/s SRR Creations represented by it’s partner

Mr. B.V. Reddy (PW2) and M/s Visakha Talkies represented by it’s proprietor Mr. Natti Kumar (appellant /accused). The substance of this agreement is about a film titled “Jagat Guru Sri Shirdy Sai baba”. As per this document M/s SRR Creations holds rights for telecasting the film through various mediums. Under this agreement for consideration

Crl.Appeal No.48-19-10-VI ADJ Court, Knl the rights of exploitation of film were assigned to the appellant. The agreed consideration was Rs.17,00,000/- (Rupees seventeen lakhs only).TheevidenceofPW1andPW2isthatappellantpaid

Rs.1,00,000/- (Rupees one lakh only) in cash and gave three cheques including the subject matter cheque for the remaining amount. It is on these facts the appellant raised certain contentions.

17.It is contended in the grounds of appeal that PW1 in his evidence admitted the censor certificate was given in the personal name of Mr. B.V. Reddy showing as producer and that is evidenced by photocopyasperEx.D1.Therefore,SRRcreationswhichisa partnership firm cannot file this case since it is not the owner of the film. The next contention raised in the grounds of appeal is that as per

Ex.P4 partnership deed the complainant/ respondent partnership firm came into existence only on 08.11.2014 and thus in the year 2011 when Ex.P2 agreement was entered into the partnership firm was not inexistenceandthereforebetweenapartnershipfirmandthe appellantthereexistnoliabilityandhencethiscaseisnot maintainable.

18.Trialcourtconsideredboththesecontentionsandthe discussed the evidence and negatived both the contentions.

19.Since the correctness of these findings are questioned in this appeal this court shall go through the evidence on record to find out whether there is merit in the contentions or not. It is true as per

Ex.P4 registered partnership deed, M/s SRR Creations is a registered partnership firm came into existence only on 08.11.2014. Now the

Crl.Appeal No.48-19-11-VI ADJ Court, Knl question is whether registered or unregistered firm M/s SRR Creations was in existence earlier to this document or not.

20.The evidence of PW1 show that during the cross-examination he said that earlier to Ex.P4 there was this partnership firm but the firm registration certificate was not filed in evidence. He was not further questioned that there was no firm earlier to Ex.P4. The written argumentsfiledfortheappellantalsoshowtheearlierdeedof partnership is not filed. It is not the argument of appellant/accused that evidence of PW1 is incorrect. At this juncture one shall see Ex.P2 agreement, dated 02.11.2011, which was also signed by appellant /accused. The accused / appellant signed on it with his eyes wide open and other party is a partnership firm by name M/s SRR Creations. That shows a partnership firm by name M/s SRR Creations was in existence in 2011 is acknowledged by accused/ appellant himself. The trial court rightly came to conclusion about existence of complainant partnership firm in the year 2011 itself. Mere non filing of any deed of partnership has no bearing either legal or factual.

21.Since as per Ex.P2 agreement M/s SRR Creations is shown to have certain rights over feature film it only sold or assigned those rights only to the appellant/accused who produced the feature film is immaterial for consideration. Even though as per Ex.B1 Mr. B.V. Reddy (PW2) is the producer of the film, as per Ex.P2 he as a partner of M/s

SRRCreationsassignedtheexploitationrightstothe appellant/accused. As per Ex.P2 and the averments in the complaint and the evidence of PW2 Mr. B.V. Reddy the question of ownership of film has no relevance. Since as per Ex.P2 right to exploit the film was

Crl.Appeal No.48-19-12-VI ADJ Court, Knl purchased by the appellant accused from respondent and since the subject matter cheque Ex.P5 was given by the appellant/accused in favourofrespondent,theappellant/accusedcannotdisownhis liability. Therefore, the finding of the trial court about existence of liability on part of appellant/accused is right and grounds urged in this appeal in this regard are devoid of merit.

22.In the grounds of appeal the contention is raised concerning statutory notice. Ex. P7 is office copy of legal notice dated 17.12.2014.

It was addressed to this appellant accused concerning the cheque that is dishonoured and the demand for the repayment of cheque amount.

Appellant points out that as per Ex.P7 the notice was issued on behalf of Mr. B.V. Reddy (PW2) as proprietor of M/s SRR Creations. This was admitted by PW1 and PW2 also. Learned counsel for appellant/accused contends that respondent partnership firm has not issued the notice andtherefore,thecaseisnotmaintainable.Onconsideringthis submission this court finds no merit in this contention for the following reasons.

23.Throughout the trial it is never the defence of the appellant/ accusedthatthereisaproprietaryconcernandalsothereis partnership firm and both bearthe same name as M/s SRR Creations and in both the firms there is Mr. B.V. Reddy as proprietor in one and as partner in another. This very B.V Reddy deposing as PW2 explained

Ex.P7 notice saying that out of a mistake Mr BV Reddy is referred as proprietor instead of partner of M/s SRR Creations. The address of complainant/respondent printed in the complaint and in Ex.P7 notice are same. (501, RRV apartment , Yusuf Guda check post, Hyderabad ).

Crl.Appeal No.48-19-13-VI ADJ Court, Knl

In a similar case such mistake was held to be having no bearing on a crimecommittedbytheaccused.(videTulja Finance Uravakonda versus A V Ramesh Kumar 2004(2)A L T (Criminal) 134 (A.P.).

Therefore, this contention of appellant is negatived.

24.One of the contentions raised in the grounds of appeal is that complaint was not filed by properly authorised person therefore it ought to have been dismissed by the learned trial court.

25.This contention is raised based on Ex.P4 partnership deed.

As per this document PW2/ Mr. B.V. Reddy is Managing Partner and is entitled to file cases. Learned counsel submits that there was no power of delegation. However, he delegated the power to PW1 under Ex.P1 authorisation letter andPW1signed andfiledthe complaintand therefore this case is not maintainable and the trial court ignored this aspect. So far as facts are concerned this submission is correct.

However, whether they have any legal effect or not is to be seen.

Ex.P2 agreement is by M/s SRR Creations. Payee under Ex.P5 cheque is M/s SRRCreations. Thecomplainantin thiscase isM/s SRR

Creations. As per Ex.P4 partnership deed PW2 is Managing Partner and

PW1 is a partner. Thus in the name of payee complaint is properly lodged by the partnership firm but it was not signed by managing partner but was signed by a partner. Even if that is considered as signing by an unauthorised person if it is ratified during the course of trial and the same can be said to be valid as per the judgment in Sri

Teja benefit fund limited versus C. Dayananda Rao AI R 2007 (NOC) 2034 (AP). In the case at hand the managing partner also gave evidence as PW2 in support of the case and therefore even if there was

Crl.Appeal No.48-19-14-VI ADJ Court, Knl defect the same stood cured. Hence the contention raised by the appellant is negatived.

26.Appellant further contends that he did not receive the statutory notice. This contention is based on the following facts. Ex.P7 is the office copy of legal notice. This was addressed to house number 8– 3– 658/5, flat number 201, Jaya Prakash Nagar, Yellareddyguda,

Hyderabad. Ex.P2 is the agreement between the parties where his office address is shown as plot No.36 Madhuranagar colony, Bollaram,

Secunderabad.Thusbetweentheabovetwoaddressesthereis difference. While cross-examining PW1 appellant/accused elicited that fact also. It is on these facts the contention of the non-receipt of notice is raised. Learned trial court considered them and negatived the contention.

27.This court has gone through the entire record. PW1 during his cross-examination after admitting the difference in addresses stated that appellant accused altogether had three addresses. As per Ex.P8 postal acknowledgement card the notice was served at the address mentioned on that postal acknowledgement. It bears the signature and a rubber stamp showing that it was received on behalf of proprietor of

Visakha talkies. PW1 admits the signature on Ex.P8 is not that of an appellant accused. A reading of entire cross-examination of PW1 only points out the difference in addresses but it never challenged the correctness of the addresses. The evidence of PW1 that appellant accused has three addresses is also not challenged. Ex.P2 agreement indicates the office address and Ex.P7 legal notice and Ex.P8 postal acknowledgementseemtoindicatehouseaddress.Sinceboth

Crl.Appeal No.48-19-15-VI ADJ Court, Knl addresses belong to the appellant/accused he did not challenge the correctness of those addresses. Moreover, appellant /accused never suggestedneverdisclosedwhataccordingtohimishiscorrect address. Therefore, on facts it is right to conclude that notice was served on the correct address of the appellant. Even otherwise as per the principles laid down in CC Alavi Haji vs Palapetti muhammed (2007) 14 SCC 750, the accused/appellant ought to have paid the cheque amount within 15 days of receipt of summons from the court and sought for rejection of the complainant. Any failure to do that disentitles him from raising questions concerning non-service of notice.

For these reasons this court agrees with the finding of the trial court and negatives the appellants contention concerning non- receipt of notice.

28.In the grounds of appeal it is contended that PW2 admitted that the transactions were not shown in income tax returns and that he did not file them into the court. It is contended that the amount became unaccounted money and cannot be recovered and prosecution shallfail.InsupportofithecitedajudgmentreportedinR.

Chennakesava Rao Vs. P. Laxmi Narasaiah, 2017 Law Suit (Hyderabad)

688. That was a case of a money lender failing to maintain accounts and it was in that context their Lordships discussed the concept of unaccounted money holding that a prosecution under section 138 of

NegotiableInstrumentsActcannotbemaintained.Thisvaluable principle does not assist the appellant/accused herein. The present case is not about the lending of money and recovery of it. In the present case appellant having received rights over feature film was liable to pay agreed consideration and gave the cheque and that was

Crl.Appeal No.48-19-16-VI ADJ Court, Knl dishonoured. Therefore, the entries in income tax returns for the complainant do not arise. Hence this contention is negatived.

29.In theWritten arguments the appellant states that as per order 30 Rule 1 of Civil Procedure Code r/w 69 (2) of Partnership Act 1932, the person suing must be a partner at the time of accruing of cause of action. In this case the firm was registered on 08.11.2004 and

Ex.P2 agreement was much prior to it on 02.11.2011 and therefore, there is no cause of action to file this case. This argument was not raised before the learned trial court and not mentioned in the grounds of appeal. In fact the provisions stated by the appellant are with reference to civil suits and not for criminal prosecution. PW2 signed

Ex.P2 agreement on behalf of complainant firm. It is at his behest

Ex.P7 statutory notice demanding cheque amount was given. It is undisputed that the accused did not pay the amount covered by the subjectmatterchequeandthuscauseofactionaroseforfiling complaint. By then PW1 was also a partner of the firm. For all these reasons this contention of the appellant is found to be without any merit.

30.Contending that a blank cheque was given appellant/accused states that a prosecution under section 138 of Negotiable Instruments

Act cannot be maintained and cited Avon Organics Ltd., versus Pioneer products Limited, New Delhi reported in 2003 Law Suit (AP) 676. On considering this the argument is rejected for the following reasons. The evidenceonrecordestablishthatthesubjectmattercheque legitimately went from the hands of the appellant/accused into the hands of the respondent/ complainant. Evidence on oath given by PW2

Crl.Appeal No.48-19-17-VI ADJ Court, Knl showed that appellant/ accused filled up all the contents of the cheque except the date and on his instructions the date was inserted by the complainant.Appellant/accusedfailedtoshowanyevidenceof circumstances contrary to this. Having given such cheque he must reap consequences. Once it is proved that cheque was signed by him and voluntarily given by him he must reap the consequences as held in Bir

Singh versus Mukesh Kumar AIR 2019 SC 2446. Hence, this contention of appellant is negatived.

31.A reading of the impugned judgment having been scrutinized in the context of grounds raised by the appellant accused and after considering the entire evidence on record this court finds that the finding that the learned trial court are based on evidence and proper reasoning and there is no merit in the contentions raised by the appellant. Therefore no interference is called for by this court in this appeal. Hence, point is answered against the appellant.

32.It is to be noticed that this accused/appellant prosecuted by same respondent/complainant in three cases one for each cheque.In all those three cases, appellant/accused was convicted and sentenced to pay compensation with interest at 9% per annum from the date of complaint, within one month from the date of judgment of the learned trial court and in default to undergo simple imprisonment for a period of three months. It seems it is in that context the impugned judgment indicates that the default sentence shall run consecutively.

33.Intheresult,Crl.A.No.48/2019isdismissedandasa consequence of it the judgment and sentence that accused has to pay compensation amount of Rs.6,00,000/- (Rupees six lakhs only) with

Crl.Appeal No.48-19-18-VI ADJ Court, Knl interest at 9% per annum from the date of filing of the complaint, within one month from the date of judgment to PW1, in default to suffer simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act, passed by learned Special

Judicial Magistrate of First Class (Proh.&Ex.), Kurnool in C.C.434/2016,

dated 10.04.2019, holds good.

Therefore,theappellant/accusedshallremitRs.6,00,000/- (Rupees six lakhs only) along with interest as ordered by the learned trialcourtfailingwhich,accused/appellantshallundergosimple imprisonmentforthreemonths.Thedefaultsentenceshallrun consecutivelywithanyothersentenceinflictedagainst accused/appellant in other cases.Furnish him free copy of judgment.

Learned trial court is directed to see that the punishment inflicted is enforced forthwith.

Typed to my dictation by the Stenographer, corrected and pronounced by me through virtual Court, this 17 th day of May, 2021.

Sd/-V.A.L. Sathyavathi,

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Crl.Appeal No.49-19-1-VI ADJ Court, Knl

In the Court of the Special Judge for Trial of Cases under SCs & STs (PoA)

Act –cum- VI Additional Sessions Judge, Kurnool.

Present: - Smt V.A.L. Sathyavathi,

Special Sessions Judge for trial of cases under SCs & STs (PoA) Act –cum- VI Additional District and Sessions Judge, Kurnool

Monday, the 17 th day of May, 2021

CRIMINAL APPEAL No.49/2019

From what Court the appeal isSpecial Judicial Magistrate of First Class, preferred.(Proh.&Excise), Kurnool

No. of the case in that CourtC.C.No.433/2016

No. of the appealCriminal Appeal No.49/2019

Name and description of theMr. Natti Kumar, S/o N.Venkat Rao, aged about appellants47 years, Occ: Business, Proprietor M/s. Vishaka Talkies, R/o Plot No.36, Madura Nagar Colony, Bollaram, Secundrabad.

The sentence and law under whichAccusedisfoundguiltyfortheoffence u/Sec.138 of N.I. Act and to pay compensation it was imposed in the lower court amountofRs.Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% per annum from the date of filing of the complaint within one month from today to PW1, IDSI for three months. Theawardofcompensationandindefault sentence shall run consecutively.

Whether confirmed, modified orDismissed revised and if modified, the In the result, this appeal is dismissed. modification.

Date of filing06-05-2019 Date of presentation06-05-2019 Date of notice issued by the court08-05-2019 to appear. Date of bail bonds, if the appellant-- let out on bail. Date of appellants/respondents24-06-2019 ordered to appear. Date of hearing06-04-2021 Date of judgment17-05-2021

versus

1. M/s SRR Creations, a Registered Partnership Firm, having office at 501, RRV Apartment, Yousfguda Checkpost, Hyderabad. Rep. by its authorized person and Partner B.Bhaskar, S/o B.Rangaiah, aged 65 years, R/o Flat No.401, Raagam Residency, Vikram Hospital, Anjani Nagar, Madapur, Hyderabad.

Crl.Appeal No.49-19-2-VI ADJ Court, Knl

2. The State of Andhra Pradesh, through Public Prosecutor.

…Respondents/Complainant

ThisCriminalAppealcomingon06.04.2021beforemeinthe presence of Sri S. Srinivasa Rao and Sri K. Bala Ramudu, Advocates for the appellant/accused and Sri K. Ramakrishna Reddy, Advocate for the Respondents/Complainant and having stood over for consideration till this day, this Court passed the following:-

J U D G M E N T

This criminal appeal is filed by the appellant/accused in C.C.

433/2016 against the orders of conviction passed by learned Special

JudicialMagistrateofFirstClass(Proh.&Excise),Kurnooldated

10.04.2019.

02.Thecase of thecomplainantascouldbe seenin the complaint, in brief is as follows:

The complainant is the one of the partner of M/s. SRR

Creations, Registered Partnership firm, Hyderabad. Accused is the producer of the movies. On 2.11.2011, the accused entered into an agreementwiththecomplainant,aspertheagreementthe complainant assigned to the accused the sole and exclusive Copyrights of Distribution, execution and exploitation of the film “Jagathguru Sri

Shirdi Saibaba” through entire television electronic and digital media, exclusiveCopyrightsforbroadcastingthesaidfilmthroughany satellite system,world satelliteTV, Free TV etc.Under the said agreementtheaccusedagreedtopayasumofRs.17,00,000/- (RupeesSeventeenLakhs)tothecomplainantforthesoleand exclusive ownership over the rights specified in the Clause No.1 of the agreement dated 02.11.2011 for the entire world on perpetual and permanent basis from the first release of the film in theaters, which is

Crl.Appeal No.49-19-3-VI ADJ Court, Knl to be paid at the time of release of film and the said amount will be full and final settlement. Towards the above said consideration the accused issued three cheques bearing No. 78, 79 and 80 in favour of the complainant for Rs.6,00,000/-, (Rupees six lakhs only) Rs.5,00,000/- (Rupeesfivelakhsonly)andRs.5,00,000/-(Rupeesfivelakhs only)respectively, while paying cash of Rs.1,00,000/- (Rupees one lakh only) on the date of agreement. The complainant, when contacted the accused for payment, he informed that the complainant could deposit the above said three cheques by putting the dates and the said dates are 20.9.2014, 20.10.2014 and 20.12.2014 respectively and asked the complainant to deposit the same in its Bank account by which time the accused would arranged the amount in his bank. Believing the version of the accused, the complainant presented the said cheques in his

Bank i.e., Oriental Bank of Commerce, Kurnool for encashment. But the cheques were dishonoured with an endorsement that the account closed. The complainant firm got issued a Statutory legal notice to the accusedon17.12.2014demandinghimtopaythesumof

Rs.5,00,000/- (Rupees five lakhs only) covered under the cheque bearing No.79 within 15 days from the date of receipt of the said legal notice. The accused received the notice on 18.12.2014 but did not choose either to give reply or to make the payment good within the statutory period of the notice. Therefore, the complainant prays to punish the accused in accordance with law and award compensation in terms of section 357 of Cr.P.C.

03.The learned trial court, after taking cognizance, when the accused appeared before the court, copies of documents on which prosecution intends to rely upon, were furnished in terms of Section

Crl.Appeal No.49-19-4-VI ADJ Court, Knl 207 Cr.P.C.Then accused was examined under section 251 Cr.P.C.

having understood accused pleaded not guilty and claimed to be tried.

04.In the trial, one of the partners of complainant firm testified as PW1, and another partner of complainant firm was examined as

PW2, and Ex.P1 to P9 were marked. Ex.D1 was marked through PW1.

No oral evidence was adduced on behalf of accused. Thereafter, the incriminating material available on record was explained to the accused under section 313 Cr.P.C and he denied it.After considering the arguments advanced on both the sides, and the evidence available on record, learned trial court convicted the accused and directed the accused to pay compensation amount of Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% per annum from the date of complaint within one month to PW1, in default to suffer simple imprisonment for a period of three months under section 138 of Negotiable Instruments

Act.

05.It is that judgment which is challenged in this appeal by raising various grounds of appeal and the following are the grounds of appeal raised by the appellant/accused.

06.Appellant/accused contends that the judgment of the lower court is against law, and weight of evidence.The trial court ought to have observed that the respondent/complainant as PW1 has clearly stated in cross examination that he did not file any document into court to show that SRR Creations Partnership firm produced the “Sri

Jagathguru Shiridi Sai Baba” picture. PW1 himself admitted that Ex.D1 is the Photostat copy of censor board certificate and the film was not produced by complaint firm and also admitted that in Ex.D1, the name

Crl.Appeal No.49-19-5-VI ADJ Court, Knl

B.V.Reddy mentioned and produced the film in individual capacity that was not taken into consideration.To consider legally enforceable debt the respondent/complainant was bound to clarify that the film was produced by complainant firm and the complainant failed to file any document to show that the firm is produced the film.The lower court ought to have observed that the respondent/complainant as PW1 has clearly stated in his cross examination that he did not file the firm registration certificate prior to 23.12.2014, Ex.P4 partnership deed it was mentioned that the commencement of business is 08.11.2014.

The complainant not filed any registration certificate of firm document to show that there is a partnership firm prior to 23.12.2014.The appellant/accused clarified that the complainant firm is not revised partnership firm and the same was not taken into consideration by the learned trial court.

07.Appellant/accused contends that the trial court ought to have observed that PW2 has clearly stated in his cross examination that he sent legal notice to accused as B.V.Reddy S/o B.R.C.Reddy

Proprietor of SRR Creations, butthe complaint filed by the SRR

Creations represented by its partner and having relied in P.Narasimha

Reddy Vs D.I. Narasimha Rao, reported in 2004 (2) ALT (Crl) 401 (A.P.).Thetransactionbetweentheappellant/accusedandthe respondent/complainant which is neither disclosed in the income tax returns as stated by PW2 in his cross examination.When the amount was not shown in the IT returns, it would become unaccounted money andtherebyitisnotlegallyrecoverable.Inthisregard,the appellant/accused relied on a judgment of Hon’ble High Court of

Crl.Appeal No.49-19-6-VI ADJ Court, Knl

Telangana and Andhra Pradesh (at Hyderabad) reported in 2017 Law

Suit (Hyd) 688, R. Chennakesava Rao Vs P. Lakshmi Narasaiah.

08.The appellant/accused contends that the lower court failed to see that in the complaint he states that the accused issued three cheques bearing Nos.78, 79 and 80 in favour of the complainant drawn on Andhra Bank, Jubile Hills Branch, Hyderabad for Rs.6,00,000/- (Rupees six lakhs only), Rs.5,00,000/- (Rupees five lakhs only) and

Rs.5,00,000/-(Rupees five lakhs only) respectively, and the trial court gave finding that the cheques were issued in the year 2014 without any document, as having observed in Avon Organics Limited, Hyd Vs.

Poineer Products Limited, New Delhi, reported in 2003 (2) ALD (Crl) 2019 (A.P).The trial court failed to see that in the partnership firm deed, dated 08.11.2014, Clause No.11, the powers of the Managing

Partner & Working Partner only given to appear for and represent above firm in connection with its said business and all affairs ancillary and incidental thereto. The B.V.Reddy has only power to file cases and give evidence and appoint an advocate and attend before the court.

The said B.V. Reddy has no power to give authorization letter to any person as per the partnership deed, and same was not taken into consideration by the lower court.The lower court ought to have dismiss the complaint as there cannot exist any legal enforceable debt or liability, and trial court ignored this crucial aspect and convicting the appellant without establishing the legally enforceable debt is unjust.

The lower court erred in holding the appellant/accused guilty of offence punishable u/s 138 of Negotiable Instruments Act and prayed to allow the appeal and set aside the judgment and conviction passed by the

Crl.Appeal No.49-19-7-VI ADJ Court, Knl lower court in C.C.No.433/2016, dated 10.04.2019, and acquit the appellant from the charges, in the interest of justice.

09. Point for determination is:

Whether the impugned judgment is erroneous on facts or in law requiring interference by this appellate court?

Point is answered:

10.Cheque in dispute is Ex.P5. It is drawn on Andhra bank, for

Rs.5,00,000/- (Rupees five lakhs only). It bears the date 20.10.2014.

It's number is 000079. Same is also mentioned in the complaint.It appearsmistakenlynumberofchequeandamountarewrongly mentioned in the evidence affidavits of PW1 and PW2.A reading of evidence of PW1 and PW2 shows that they are referring to Ex.P5 disputed cheque only. It is payable to SRR Creations. It purportedly contain the signature of the appellant /accused. In the original printed chequeunderneaththesignatureofappellant/accusedthereis printed matter that is ''for Visakha talkies ''. Evidence of PW1 and PW 2 is that the accused gave three cheques towards discharge of liability and the above cheque is one among them. The cause title in the complaint shows that accused is proprietor of M/s Visakha talkies.

Cause title further shows SRR creations is the complainant. Thus the accused / appellant is the drawer and the complainant /respondent is the payee. As per the averments in the complaint and the evidence of

PW1 and PW2 the cheque was given towards liability contained in

Ex.P2 agreement dated 02.11.2011 between the parties. While cross- examining PW2 it was elicited that in the office of PW2 accused handed over these cheques after filing the contents of them except the date. It

Crl.Appeal No.49-19-8-VI ADJ Court, Knl was further elicited that the accused told them to fill up the date. PW1 and PW2 deposed that when accused asked them to put the dates in cheques they put the dates.

11.During the trial of the case accused did not dispute the following facts. That cheque was drawn on an account maintained by him with the Bank and it bears his signature and he handed over them to PW2. While cross-examining PW1 it was suggested by the accused that he gave empty cheques to PW2 in connection with the transaction pertaining to a cinema theater. Witness denied it as false. While cross- examining PW1 it was suggested to him that the accused gave three empty cheques in connection with a film titled ‘Chattam’ and thereafter on 25.11.2014 accused paid Rs.1,50,000/- (Rupees one lakh fifty thousand only) towards full and final settlement,witness denied it as false. While cross-examining PW1 and PW2 accused did not deny the signature on the disputed cheque.

12.As per the evidence of PW1 and PW2 disputed cheque was presented for collection and it was written and pay on the ground that account of accused was closed. Ex.P6 is a cheque return memo, dated 05.12.2014. The correctness of the contents of this cheque return memo are not disputed by the accused at the trial. Thus, the cheque issued by the accused was dishonoured. The trial court in considering the evidence recorded a finding at para-14 and 15 of the judgment that the subject matter cheque was issued by the accused towards discharge of liability and it was dishonoured as the account of accused was closed.

Crl.Appeal No.49-19-9-VI ADJ Court, Knl

13.Though not mentioned in the grounds of appeal, in the written arguments the appellant had mentioned that to attract section 138 of Negotiable Instruments Act, there shall exist '' live account.”

14.This argument is against the law. The Supreme Court of

India in NEPC Micon limited vs. Magma Leasing Ltd., AIR 1999 SC 1952 held that account closed endorsement is equal to the NIL balance account and attracts the section 138 of Negotiable Instruments Act.

Hence this contention of appellant is negatived.

15.Learned trial court drew presumption under section 139 of

Negotiable Instruments Act and presumed that accused gave the cheque towards discharge of legally enforceable liability. It held that accused failed to show any probable defence and failed to rebut the presumption and found the accused guilty.

16.The connecting transaction between the parties is from Ex.P2 which is an agreement dated 02.11.2011. The evidence of PW1 and

PW2 and averments in the complaint show that both parties signed this agreement. As could be seen from the cross-examination of these witnesses the genuineness of this document is not disputed by the appellant /accused. The written arguments filed for the appellant also do not dispute Ex.P2 Agreement. A perusal of this document shows that it was executed by M/s SRR Creations represented by it’s partner

Mr. B.V. Reddy (PW2) and M/s Visakha Talkies represented by it’s proprietor Mr. Natti Kumar (appellant /accused). The substance of this agreement is about a film titled “Jagat Guru Sri Shirdy Sai baba”. As per this document M/s SRR Creations holds rights for telecasting the film through various mediums. Under this agreement for consideration

Crl.Appeal No.49-19-10-VI ADJ Court, Knl the rights of exploitation of film were assigned to the appellant. The agreed consideration was Rs.17,00,000/- (Rupees seventeen lakhs only).TheevidenceofPW1andPW2isthatappellantpaid

Rs.1,00,000/- (Rupees one lakh only) in cash and gave three cheques including the subject matter cheque for the remaining amount. It is on these facts the appellant raised certain contentions.

17.It is contended in the grounds of appeal that PW1 in his evidence admitted the censor certificate was given in the personal name of Mr. B.V. Reddy showing as producer and that is evidenced by photocopyasperEx.D1.Therefore,SRRcreationswhichisa partnership firm cannot file this case since it is not the owner of the film. The next contention raised in the grounds of appeal is that as per

Ex.P4 partnership deed the complainant/ respondent partnership firm came into existence only on 08.11.2014 and thus in the year 2011 when Ex.P2 agreement was entered into the partnership firm was not inexistenceandthereforebetweenapartnershipfirmandthe appellantthereexistnoliabilityandhencethiscaseisnot maintainable.

18.Trialcourtconsideredboththesecontentionsandthe discussed the evidence and negatived both the contentions.

19.Since the correctness of these findings are questioned in this appeal this court shall go through the evidence on record to find out whether there is merit in the contentions or not. It is true as per

Ex.P4 registered partnership deed, M/s SRR Creations is a registered partnership firm came into existence only on 08.11.2014. Now the

Crl.Appeal No.49-19-11-VI ADJ Court, Knl question is whether registered or unregistered firm M/s SRR Creations was in existence earlier to this document or not.

20.The evidence of PW1 show that during the cross-examination he said that earlier to Ex.P4 there was this partnership firm but the firm registration certificate was not filed in evidence. He was not further questioned that there was no firm earlier to Ex.P4. The written argumentsfiledfortheappellantalsoshowtheearlierdeedof partnership is not filed. It is not the argument of appellant/accused that evidence of PW1 is incorrect. At this juncture one shall see Ex.P2 agreement, dated 02.11.2011, which was also signed by appellant /accused. The accused / appellant signed on it with his eyes wide open and other party is a partnership firm by name M/s SRR Creations. That shows a partnership firm by name M/s SRR Creations was in existence in 2011 is acknowledged by accused/ appellant himself. The trial court rightly came to conclusion about existence of complainant partnership firm in the year 2011 itself. Mere non filing of any deed of partnership has no bearing either legal or factual.

21.Since as per Ex.P2 agreement M/s SRR Creations is shown to have certain rights over feature film it only sold or assigned those rights only to the appellant/accused who produced the feature film is immaterial for consideration. Even though as per Ex.B1 Mr. B.V. Reddy (PW2) is the producer of the film, as per Ex.P2 he as a partner of M/s

SRRCreationsassignedtheexploitationrightstothe appellant/accused. As per Ex.P2 and the averments in the complaint and the evidence of PW2 Mr. B.V. Reddy the question of ownership of film has no relevance. Since as per Ex.P2 right to exploit the film was

Crl.Appeal No.49-19-12-VI ADJ Court, Knl purchased by the appellant accused from respondent and since the subject matter cheque Ex.P5 was given by the appellant/accused in favour of respondent, the appellant/accused cannot disown his liability.

Therefore, the finding of the trial court about existence of liability on part of appellant/accused is right and grounds urged in this appeal in this regard are devoid of merit.

22.In the grounds of appeal the contention is raised concerning statutory notice. Ex. P7 is office copy of legal notice dated 17.12.2014.

It was addressed to this appellant accused concerning the cheque that is dishonoured and the demand for the repayment of cheque amount.

Appellant points out that as per Ex.P7 the notice was issued on behalf of Mr. B.V. Reddy (PW2) as proprietor of M/s SRR Creations. This was admitted by PW1 and PW2 also. Learned counsel for appellant/accused contends that respondent partnership firm has not issued the notice andtherefore,thecaseisnotmaintainable.Onconsideringthis submission this court finds no merit in this contention for the following reasons.

23.Throughout the trial it is never the defence of the appellant/ accusedthatthereisaproprietaryconcernandalsothereis partnership firm and both bearthe same name as M/s SRR Creations and in both the firms there is Mr. B.V. Reddy as proprietor in one and as partner in another. This very B.V Reddy deposing as PW2 explained

Ex.P7 notice saying that out of a mistake Mr BV Reddy is referred as proprietor instead of partner of M/s SRR Creations. The address of complainant/respondent printed in the complaint and in Ex.P7 notice are same. (501, RRV apartment , Yusuf Guda check post, Hyderabad ).

Crl.Appeal No.49-19-13-VI ADJ Court, Knl

In a similar case such mistake was held to be having no bearing on a crimecommittedbytheaccused.(videTulja Finance Uravakonda versus A V Ramesh Kumar 2004(2)A L T (Criminal) 134 (A.P.).

Therefore, this contention of appellant is negatived.

24.One of the contentions raised in the grounds of appeal is that complaint was not filed by properly authorised person therefore it ought to have been dismissed by the learned trial court.

25.This contention is raised based on Ex.P4 partnership deed.

As per this document PW2/ Mr. B.V. Reddy is Managing Partner and is entitled to file cases. Learned counsel submits that there was no power of delegation. However, he delegated the power to PW1 under Ex.P1 authorisation letter andPW1signed andfiledthe complaintand therefore this case is not maintainable and the trial court ignored this aspect. So far as facts are concerned this submission is correct.

However, whether they have any legal effect or not is to be seen.

Ex.P2 agreement is by M/s SRR Creations. Payee under Ex.P5 cheque is M/s SRRCreations. Thecomplainantin thiscase isM/s SRR

Creations. As per Ex.P4 partnership deed PW2 is Managing Partner and

PW1 is a partner. Thus in the name of payee complaint is properly lodged by the partnership firm but it was not signed by managing partner but was signed by a partner. Even if that is considered as signing by an unauthorised person if it is ratified during the course of trial and the same can be said to be valid as per the judgment in Sri

Teja benefit fund limited versus C. Dayananda Rao AI R 2007 (NOC) 2034 (AP). In the case at hand the managing partner also gave evidence as PW2 in support of the case and therefore even if there was

Crl.Appeal No.49-19-14-VI ADJ Court, Knl defect the same stood cured. Hence the contention raised by the appellant is negatived.

26.Appellant further contends that he did not receive the statutory notice. This contention is based on the following facts. Ex.P7 is the office copy of legal notice. This was addressed to house number 8– 3– 658/5, flat number 201, Jaya Prakash Nagar, Yellareddyguda,

Hyderabad. Ex.P2 is the agreement between the parties where his office address is shown as plot No.36 Madhuranagar colony, Bollaram,

Secunderabad.Thusbetweentheabovetwoaddressesthereis difference. While cross-examining PW1 appellant/accused elicited that fact also. It is on these facts the contention of the non-receipt of notice is raised. Learned trial court considered them and negatived the contention.

27.This court has gone through the entire record. PW1 during his cross-examination after admitting the difference in addresses stated that appellant accused altogether had three addresses. As per Ex.P8 postal acknowledgement card the notice was served at the address mentioned on that postal acknowledgement. It bears the signature and a rubber stamp showing that it was received on behalf of proprietor of

Visakha talkies. PW1 admits the signature on Ex.P8 is not that of an appellant accused. A reading of entire cross-examination of PW1 only points out the difference in addresses but it never challenged the correctness of the addresses. The evidence of PW1 that appellant accused has three addresses is also not challenged. Ex.P2 agreement indicates the office address and Ex.P7 legal notice and Ex.P8 postal acknowledgementseemtoindicatehouseaddress.Sinceboth

Crl.Appeal No.49-19-15-VI ADJ Court, Knl addresses belong to the appellant/accused he did not challenge the correctness of those addresses. Moreover, appellant /accused never suggestedneverdisclosedwhataccordingtohimishiscorrect address. Therefore, on facts it is right to conclude that notice was served on the correct address of the appellant. Even otherwise as per the principles laid down in CC Alavi Haji vs Palapetti muhammed (2007) 14 SCC 750, the accused/appellant ought to have paid the cheque amount within 15 days of receipt of summons from the court and sought for rejection of the complainant. Any failure to do that disentitles him from raising questions concerning non-service of notice.

For these reasons this court agrees with the finding of the trial court and negatives the appellants contention concerning non- receipt of notice.

28.In the grounds of appeal it is contended that PW2 admitted that the transactions were not shown in income tax returns and that he did not file them into the court. It is contended that the amount became unaccounted money and cannot be recovered and prosecution shallfail.InsupportofithecitedajudgmentreportedinR.

Chennakesava Rao Vs. P. Laxmi Narasaiah, 2017 Law Suit (Hyderabad)

688. That was a case of a money lender failing to maintain accounts and it was in that context their Lordships discussed the concept of unaccounted money holding that a prosecution under section 138 of

NegotiableInstrumentsActcannotbemaintained.Thisvaluable principle does not assist the appellant/accused herein. The present case is not about the lending of money and recovery of it. In the present case appellant having received rights over feature film was liable to pay agreed consideration and gave the cheque and that was

Crl.Appeal No.49-19-16-VI ADJ Court, Knl dishonoured. Therefore, the entries in income tax returns for the complainant do not arise. Hence this contention is negatived.

29.In theWritten arguments the appellant states that as per order 30 Rule 1 of Civil Procedure Code r/w 69 (2) of Partnership Act 1932, the person suing must be a partner at the time of accruing of cause of action. In this case the firm was registered on 08.11.2004 and

Ex.P2 agreement was much prior to it on 02.11.2011 and therefore, there is no cause of action to file this case. This argument was not raised before the learned trial court and not mentioned in the grounds of appeal. In fact the provisions stated by the appellant are with reference to civil suits and not for criminal prosecution. PW2 signed

Ex.P2 agreement on behalf of complainant firm. It is at his behest

Ex.P7 statutory notice demanding cheque amount was given. It is undisputed that the accused did not pay the amount covered by the subjectmatterchequeandthuscauseofactionaroseforfiling complaint. By then PW1 was also a partner of the firm. For all these reasons this contention of the appellant is found to be without any merit.

30.Contending that a blank cheque was given appellant/accused states that a prosecution under section 138 of Negotiable Instruments

Act cannot be maintained and cited Avon Organics Ltd., versus Pioneer products Limited, New Delhi reported in 2003 Law Suit (AP) 676. On considering this the argument is rejected for the following reasons. The evidenceonrecordestablishthatthesubjectmattercheque legitimately went from the hands of the appellant/accused into the hands of the respondent/ complainant. Evidence on oath given by PW2

Crl.Appeal No.49-19-17-VI ADJ Court, Knl showed that appellant/ accused filled up all the contents of the cheque except the date and on his instructions the date was inserted by the complainant.Appellant/accusedfailedtoshowanyevidenceof circumstances contrary to this. Having given such cheque he must reap consequences. Once it is proved that cheque was signed by him and voluntarily given by him he must reap the consequences as held in Bir

Singh versus Mukesh Kumar AIR 2019 SC 2446. Hence, this contention of appellant is negatived.

31.A reading of the impugned judgment having been scrutinized in the context of grounds raised by the appellant/accused and after considering the entire evidence on record this court finds that the finding that the learned trial court are based on evidence and proper reasoning and there is no merit in the contentions raised by the appellant. Therefore no interference is called for by this court in this appeal. Hence, point is answered against the appellant.

32.It is to be noticed that this accused/appellant prosecuted by same respondent/complainant in three cases one for each cheque.In all those three cases, appellant/accused was convicted and sentenced to pay compensation with interest at 9% per annum from the date of complaint, within one month from the date of judgment of the learned trial court and in default to undergo simple imprisonment for a period of three months. It seems it is in that context the impugned judgment indicates that the default sentence shall run consecutively.

33.Intheresult,Crl.A.No.49/2019isdismissedandasa consequence of it the judgment and sentence that accused has to pay compensation amount of Rs.5,00,000/- (Rupees five lakhs only) with

Crl.Appeal No.49-19-18-VI ADJ Court, Knl interest at 9% per annum from the date of filing of the complaint, within one month from the date of judgment to PW1, in default to suffer simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act, passed by learned Special

Judicial Magistrate of First Class (Proh.&Ex.), Kurnool in C.C.433/2016,

dated 10.04.2019, holds good.

Therefore,theappellant/accusedshallremitRs.5,00,000/- (Rupees five lakhs only) along with interest as ordered by the learned trialcourtfailingwhich,accused/appellantshallundergosimple imprisonmentforthreemonths.Thedefaultsentenceshallrun consecutivelywithanyothersentenceinflictedagainst accused/appellant in other cases.Furnish him free copy of judgment.

Learned trial court is directed to see that the punishment inflicted is enforced forthwith.

Typed to my dictation by the Stenographer, corrected and pronounced by me through virtual Court, this 17 th day of May, 2021.

Sd/-V.A.L. Sathyavathi,

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Crl.Appeal No.47-19-1-VI ADJ Court, Knl

In the Court of the Special Judge for Trial of Cases under SCs & STs (PoA)

Act –cum- VI Additional Sessions Judge, Kurnool.

Present: - Smt V.A.L. Sathyavathi,

Special Sessions Judge for trial of cases under SCs & STs (PoA) Act –cum- VI Additional District and Sessions Judge, Kurnool

Monday, the 17 th day of May, 2021

CRIMINAL APPEAL No.47/2019

From what Court the appeal isSpecial Judicial Magistrate of First Class, preferred.(Proh.&Excise), Kurnool

No. of the case in that CourtC.C.No.432/2016

No. of the appealCriminal Appeal No.47/2019

Name and description of theMr. Natti Kumar, S/o N.Venkat Rao, aged about appellants47 years, Occ” Business, Proprietor M/s. Vishaka Talkies, R/o Plot No.36, Madura Nagar Colony, Bollaram, Secundrabad.

The sentence and law under whichAccusedisfoundguiltyfortheoffence u/Sec.138 of N.I. Act and to pay compensation it was imposed in the lower court amountofRs.Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% per annum from the date of filing of the complaint within one month from today to PW1, IDSI for three months. Theawardofcompensationandindefault sentence shall run consecutively.

Whether confirmed, modified orDismissed revised and if modified, the In the result, this appeal is dismissed. modification.

Date of filing06-05-2019 Date of presentation06-05-2019 Date of notice issued by the court08-05-2019 to appear. Date of bail bonds, if the appellant-- let out on bail. Date of appellants/respondents24-06-2019 ordered to appear. Date of hearing06-04-2021 Date of judgment17-05-2021

versus

1. M/s SRR Creations, a Registered Partnership Firm, having office at 501, RRV Apartment, Yousfguda Checkpost, Hyderabad. Rep. by its authorized person and Partner B.Bhaskar, S/o B.Rangaiah, aged 65 years, R/o Flat No.401, Raagam Residency, Vikram Hospital, Anjani Nagar, Madapur, Hyderabad.

Crl.Appeal No.47-19-2-VI ADJ Court, Knl

2. The State of Andhra Pradesh, through Public Prosecutor.

…Respondents/Complainant

ThisCriminalAppealcomingon06.04.2021beforemeinthe presence of Sri S. Srinivasa Rao and Sri K. Bala Ramudu, Advocates for the appellant/accused and Sri K. Ramakrishna Reddy, Advocate for the Respondents/Complainant and having stood over for consideration till this day, this Court passed the following:-

J U D G M E N T

This criminal appeal is filed by the appellant/accused in C.C.

432/2016 against the orders of conviction passed by learned Special

JudicialMagistrateofFirstClass(Proh.&Excise),Kurnooldated

10.04.2019.

02.Thecase of thecomplainantascouldbe seenin the complaint, in brief is as follows:

The complainant is the one of the partner of M/s. SRR

Creations, Registered Partnership firm, Hyderabad. Accused is the producer of the movies. On 2.11.2011, the accused entered into an agreementwiththecomplainant,aspertheagreementthe complainant assigned to the accused the sole and exclusive Copyrights of Distribution, execution and exploitation of the film “Jagathguru Sri

Shirdi Saibaba” through entire television electronic and digital media, exclusiveCopyrightsforbroadcastingthesaidfilmthroughany satellite system,world satelliteTV, Free TV etc.Under the said agreementtheaccusedagreedtopayasumofRs.17,00,000/- (RupeesSeventeenLakhs)tothecomplainantforthesoleand exclusive ownership over the rights specified in the Clause No.1 of the agreement dated 02.11.2011 for the entire world on perpetual and permanent basis from the first release of the film in theaters, which is

Crl.Appeal No.47-19-3-VI ADJ Court, Knl to be paid at the time of release of film and the said amount will be full and final settlement. Towards the above said consideration the accused issued three cheques bearing No. 78, 79 and 80 in favour of the complainant for Rs.6,00,000/-, (Rupees six lakhs only) Rs.5,00,000/- (Rupeesfivelakhsonly)andRs.5,00,000/-(Rupeesfivelakhs only)respectively, while paying cash of Rs.1,00,000/- on the date of agreement.Thecomplainant,whencontactedtheaccusedfor payment, he informed that the complainant could deposit the above said three cheques by putting the dates and the said dates are 20.9.2014, 20.10.2014 and 20.12.2014 respectively and asked the complainant to deposit the same in its Bank account by which time the accused would arranged the amount in his bank. Believing the version of the accused, the complainant presented the said cheques in his

Bank i.e., Oriental Bank of Commerce, Kurnool for encashment. But the cheques were dishonoured with an endorsement that the account closed. The complainant firm got issued a Statutory legal notice to the accusedon17.12.2014demandinghimtopaythesumof

Rs.5,00,000/- (Rupees five lakhs only) covered under the cheque bearing No.80 within 15 days from the date of receipt of the said legal notice. The accused received the notice on 18.12.2014 but did not choose either to give reply or to make the payment good within the statutory period of the notice. Therefore, the complainant prays to punish the accused in accordance with law and award compensation in terms of section 357 of Cr.P.C.

03.The learned trial court, after taking cognizance, when the accused appeared before the court, copies of documents on which prosecution intends to rely upon, were furnished in terms of Section

Crl.Appeal No.47-19-4-VI ADJ Court, Knl 207 Cr.P.C.Then accused was examined under section 251 Cr.P.C.

having understood accused pleaded not guilty and claimed to be tried.

04.In the trial, one of the partners of complainant firm testified as PW1, and another partner of complainant firm was examined as

PW2, and Ex.P1 to P9 were marked. Ex.D1 was marked through PW1.

No oral evidence was adduced on behalf of accused. Thereafter, the incriminating material available on record was explained to the accused under section 313 Cr.P.C and he denied it.After considering the arguments advanced on both the sides, and the evidence available on record, learned trial court convicted the accused and directed the accused to pay compensation amount of Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% per annum from the date of complaint within one month to PW1, in default to suffer simple imprisonment for a period of three months under section 138 of Negotiable Instruments

Act.

05.It is that judgment which is challenged in this appeal by raising various grounds of appeal and the following are the grounds of appeal raised by the appellant/accused.

06.Appellant/accused contends that the judgment of the lower court is against law, and weight of evidence.The trial court ought to have observed that the respondent/complainant as PW1 has clearly stated in cross examination that he did not file any document into court to show that SRR Creations Partnership firm produced the “Sri

Jagathguru Shiridi Sai Baba” picture. PW1 himself admitted that Ex.D1 is the Photostat copy of censor board certificate and the film was not produced by complaint firm and also admitted that in Ex.D1, the name

Crl.Appeal No.47-19-5-VI ADJ Court, Knl

B.V.Reddy mentioned and produced the film in individual capacity that was not taken into consideration.To consider legally enforceable debt the respondent/complainant was bound to clarify that the film was produced by complainant firm and the complainant failed to file any document to show that the firm is produced the film.The lower court ought to have observed that the respondent/complainant as PW1 has clearly stated in his cross examination that he did not file the firm registration certificate prior to 23.12.2014, Ex.P4 partnership deed it was mentioned that the commencement of business is 08.11.2014.

The complainant not filed any registration certificate of firm document to show that there is a partnership firm prior to 23.12.2014.The appellant/accused clarified that the complainant firm is not revised partnership firm and the same was not taken into consideration by the learned trial court.

07.Appellant/accused contends that the trial court ought to have observed that PW2 has clearly stated in his cross examination that he sent legal notice to accused as B.V.Reddy S/o B.R.C.Reddy

Proprietor of SRR Creations, butthe complaint filed by the SRR

Creations represented by its partner and having relied in P.Narasimha

Reddy Vs D.I. Narasimha Rao, reported in 2004 (2) ALT (Crl) 401 (A.P.).Thetransactionbetweentheappellant/accusedandthe respondent/complainant which is neither disclosed in the income tax returns as stated by PW2 in his cross examination.When the amount was not shown in the IT returns, it would become unaccounted money andtherebyitisnotlegallyrecoverable.Inthisregard,the appellant/accused relied on a judgment of Hon’ble High Court of

Crl.Appeal No.47-19-6-VI ADJ Court, Knl

Telangana and Andhra Pradesh (at Hyderabad) reported in 2017 Law

Suit (Hyd) 688, R. Chennakesava Rao Vs P. Lakshmi Narasaiah.

08.The appellant/accused contends that the lower court failed to see that in the complaint he states that the accused issued three cheques bearing Nos.78, 79 and 80 in favour of the complainant drawn on Andhra Bank, Jubile Hills Branch, Hyderabad for Rs.6,00,000/- (Rupees six lakhs only), Rs.5,00,000/- (Rupees five lakhs only) and

Rs.5,00,000/-(Rupees five lakhs only) respectively, and the trial court gave finding that the cheques were issued in the year 2014 without any document, as having observed in Avon Organics Limited, Hyd Vs.

Poineer Products Limited, New Delhi, reported in 2003 (2) ALD (Crl) 2019 (A.P).The trial court failed to see that in the partnership firm deed, dated 08.11.2014, Clause No.11, the powers of the Managing

Partner & Working Partner only given to appear for and represent above firm in connection with its said business and all affairs ancillary and incidental thereto. The B.V.Reddy has only power to file cases and give evidence and appoint an advocate and attend before the court.

The said B.V. Reddy has no power to give authorization letter to any person as per the partnership deed, and same was not taken into consideration by the lower court.The lower court ought to have dismiss the complaint as there cannot exist any legal enforceable debt or liability, and trial court ignored this crucial aspect and convicting the appellant without establishing the legally enforceable debt is unjust.

The lower court erred in holding the appellant/accused guilty of offence punishable u/s 138 of Negotiable Instruments Act and prayed to allow the appeal and set aside the judgment and conviction passed by the

Crl.Appeal No.47-19-7-VI ADJ Court, Knl lower court in C.C.No.432/2016, dated 10.04.2019, and acquit the appellant from the charges, in the interest of justice.

09. Point for determination is:

Whether the impugned judgment is erroneous on facts or in law requiring interference by this appellate court?

Point is answered:

10.Cheque in dispute is Ex.P5. It is drawn on Andhra bank, for

Rs.5,00,000/- (Rupees five lakhs only). It bears the date 20.11.2014.

It's number is 000080. It is payable to SRR Creations. It purportedly contain the signature of the appellant /accused. In the original printed chequeunderneaththesignatureofappellant/accusedthereis printed matter that is ''for Visakha talkies ''. Evidence of PW1 and PW 2 is that the accused gave three cheques towards discharge of liability and the above cheque is one among them. The cause title in the complaint shows that accused is proprietor of M/s Visakha talkies.

Cause title further shows SRR creations is the complainant. Thus the accused / appellant is the drawer and the complainant /respondent is the payee. As per the averments in the complaint and the evidence of

PW1 and PW2 the cheque was given towards liability contained in

Ex.P2 agreement dated 02.11.2011 between the parties. While cross- examining PW2 it was elicited that in the office of PW2 accused handed over these cheques after filing the contents of them except the date. It was further elicited that the accused told them to fill up the date. PW1 and PW2 deposed that when accused asked them to put the dates in cheques they put the dates.

Crl.Appeal No.47-19-8-VI ADJ Court, Knl

11.During the trial of the case accused did not dispute the following facts. That cheque was drawn on an account maintained by him the Bank and it bears his signature and he handed over them to

PW2. While cross-examining PW1 it was suggested by the accused that he gave empty cheques to PW2 in connection with the transaction pertaining to a cinema theater. Witness denied it as false. While cross- examining PW1 it was suggested to him that the accused gave three empty cheques in connection with a film titled ‘Chattam’ and thereafter on 25.11.2014 accused paid Rs.1,50,000/- (Rupees one lakh fifty thousand only) towards full and final settlement,witness denied it as false. While cross-examining PW1 and PW2 accused did not deny the signature on the disputed cheque.

12.As per the evidence of PW1 and PW2 cheque was presented for collection and it was written and pay on the ground that account of accusedwasclosed.Ex.P6isachequereturnmemo,dated 09.12.2014. The correctness of the contents of this cheque return memo are not disputed by the accused at the trial. Thus, the cheque issued by the accused was dishonoured. The trial court in considering the evidence recorded a finding at para-14 and 15 of the judgment that the subject matter cheque was issued by the accused towards discharge of liability and it was dishonoured as the account of accused was closed.

13.Though not mentioned in the grounds of appeal, in the written arguments the appellant had mentioned that to attract section 138 of Negotiable Instruments Act, there shall exist '' live account.”

Crl.Appeal No.47-19-9-VI ADJ Court, Knl

14.This argument is against the law. The Supreme Court of

India in NEPC Micon limited vs. Magma Leasing Ltd., AIR 1999 SC 1952 held that account closed endorsement is equal to the NIL balance account and attracts the section 138 of Negotiable Instruments Act.

Hence this contention of appellant is negatived.

15.Learned trial court drew presumption under section 139 of

Negotiable Instruments Act and presumed that accused gave the cheque towards discharge of legally enforceable liability. It held that accused failed to show any probable defence and failed to rebut the presumption and found the accused guilty.

16.The connecting transaction between the parties is from Ex.P2 which is an agreement dated 02.11.2011. The evidence of PW1 and

PW2 and averments in the complaint show that both parties signed this agreement. As could be seen from the cross-examination of these witnesses the genuineness of this document is not disputed by the appellant /accused. The written arguments filed for the appellant also do not dispute Ex.P2 Agreement. A perusal of this document shows that it was executed by M/s SRR Creations represented by it’s partner

Mr. B.V. Reddy (PW2) and M/s Visakha Talkies represented by it’s proprietor Mr. Natti Kumar (appellant /accused) the substance of this agreement is about a film titled “Jagat Guru Sri Shirdy Sai baba”. As per this document M/s SRR Creations holds rights for telecasting the film through various mediums. Under this agreement for consideration the rights of exploitation of film were assigned to the appellant. The agreed consideration was Rs.17,00,000/- (Rupees seventeen lakhs only).TheevidenceofPW1andPW2isthatappellantpaid

Crl.Appeal No.47-19-10-VI ADJ Court, Knl

Rs.1,00,000/- (Rupees one lakh only) in cash and gave three cheques including the subject matter cheque for the remaining amount. It is on these facts the appellant raises certain contentions.

17.It is contended in the grounds of appeal that PW1 in his evidence admitted the sensor certificate was given in the personal name of Mr. B.V. Reddy showing as producer and that is evidenced by photocopyasperEx.D1.Therefore,SRRcreationswhichisa partnership firm cannot file this case since it is not the owner of the film. The next contention raised in the grounds of appeal is that as per

Ex.P4 partnership deed the complainant/ respondent partnership firm came into existence only on 08.11.2014 and thus in the year 2011 when Ex.P2 agreement was entered into the partnership firm was not inexistenceandthereforebetweenapartnershipfirmandthe appellantthereexistnoliabilityandhencethiscaseisnot maintainable.

18.Trialcourtconsideredboththesecontentionsandthe discussed the evidence and negatived both the contentions.

19.Since the correctness of these findings are questioned in this appeal this court shall go through the evidence on record to find out whether there is merit in the contentions or not. It is true as per

Ex.P4SRRCreationsisaregisteredpartnershipfirmcameinto existence only on 08.11.2014. Now the question is whether registered or unregistered firm M/s SRR Creations was in existence earlier to this document or not.

20.The evidence of PW1 show that during the cross-examination he said that earlier to Ex.P4 there was this partnership firm but the

Crl.Appeal No.47-19-11-VI ADJ Court, Knl firm registration certificate was not filed in evidence. He was not further questioned that there was no firm earlier to Ex.P4. The written argumentsfiledfortheappellantalsoshowtheearlierdeedof partnership is not filed. It is not the argument to that evidence of PW1 is incorrect. At this juncture one shall see Ex.P2 agreement which was also signed by appellant /accused. The accused / appellant signed on it with his eyes wide open and other party is a partnership firm by name

M/s SRR Creations. That shows a partnership firm by name M/s SRR

Creations was in existence in 2011 is acknowledged by accused/ appellant himself. The trial court rightly came to conclusion about existence of complainant partnership firm in the year 2011 itself. Mere non filing of any deed of partnership has no bearing either legal or factual.

21.Since as per Ex.P2 M/s SRR Creations is shown to have certain rights over feature film it only sold or assigned those rights only to the appellant/accused who produced the feature film is immaterial for consideration. Even though as per Ex.B1 Mr. B.V. Reddy (PW2) is the producer of the film, as per Ex.P2 he as a partner of M/s SRR Creations assigned the exploitation rights to the appellant/accused. As per Ex.P2 and the averments in the complaint and the evidence of PW2 Mr. B.V.

Reddy the question of ownership of film has no relevance. Since as per

Ex.P2 right to exploit the film was purchased by the appellant accused from respondent and since the subject matter cheque Ex.P5 was given bytheappellant/accusedinfavourofrespondent,theappellant/ accused cannot disown his liability. Therefore, the finding of the trial court about existence of liability on part of appellant/accused is right and grounds urged in this appeal in this regard are devoid of merit.

Crl.Appeal No.47-19-12-VI ADJ Court, Knl

22.In the grounds of appeal the contention is raised concerning statutory notice. Ex. P7 is office copy of legal notice dated 17.12.2014.

It was addressed to this appellant accused concerning the cheque that is dishonoured and the demand for the repayment of cheque amount.

Appellant points out that as per Ex.P7 the notice was issued on behalf of Mr. B.V. Reddy (PW2) as proprietor of M/s SRR Creations. This was admitted by PW1 and PW2 also. Learned counsel for appellant/accused contends that respondent partnership firm has not issued the notice andtherefore,thecaseisnotmaintainable.Onconsideringthis submission this court finds no merit in this contention for the following reasons.

23.Throughout the trial it is never the defence of the appellant/ accusedthatthereisaproprietaryconcernandalsothereis partnership firm and both bearthe same name as M/s SRR Creations and in both the firms there is Mr. B.V. Reddy as proprietor in one and as partner in another. This very B.V Reddy deposing as PW2 explained

Ex.P7 notice saying that out of a mistake Mr BV Reddy is referred as proprietor instead of partner of M/s SRR Creations. The address of complainant/respondent printed in the complaint and in Ex.P7 notice are same. (501, RRV apartment , Yusuf Guda check post, Hyderabad ).

In a similar case such mistake was held to be having no bearing on a crimecommittedbytheaccused.(videTulja Finance Uravakonda versus A V Ramesh Kumar 2004(2)A L T (Criminal) 134 (A.P.).

Therefore, this contention of appellant is negatived.

Crl.Appeal No.47-19-13-VI ADJ Court, Knl

24.One of the contentions raised in the grounds of appeal is that complaint was not filed by properly authorised person therefore it ought to have been dismissed by the learned trial court.

25.This contention is raised based on Ex.P4 partnership deed.

As per this document PW2/ Mr. B.V. Reddy is Managing Partner and is entitled to file cases. Learned counsel submits that there was no power of delegation. However, he delegated the power to PW1 under Ex.P1 authorisation letter andPW1signed andfiledthe complaintand therefore this case is not maintainable and the trial court ignored this aspect. So far as facts are concerned this submission is correct.

However, whether they have any legal effect or not is to be seen.

Ex.P2 agreement is by M/s SRR Creations. Payee under Ex.P5 cheque is M/s SRRCreations. Thecomplainantin thiscase isM/s SRR

Creations. As per Ex.P4 partnership deed PW2 is Managing Partner and

PW1 is a partner. Thus in the name of payee complaint is properly lodged by the partnership firm but it was not signed by managing partner but was signed by a partner. Even if that is considered as signing by an unauthorised person if it is ratified during the course of trial and the same can be said to be valid as per the judgment in Sri

Teja benefit fund limited versus C. Dayananda Rao AI R 2007 (NOC) 2034 (AP). In the case at hand the managing partner also gave evidence as PW2 in support of the case and therefore even if there was defect the same stood cured. Hence the contention raised by the appellant is negatived.

26.Appellant further contends that he did not receive the statutory notice. This contention is based on the following facts. Ex.P7

Crl.Appeal No.47-19-14-VI ADJ Court, Knl is the office copy of legal notice. This was addressed to house number 8– 3– 658/5, flat number 201, Jaya Prakash Nagar, Yellareddyguda,

Hyderabad. Ex.P2 is the agreement between the parties where his office address is shown as plot No.36 Madhuranagar colony, Bollaram,

Secunderabad.Thusbetweentheabovetwoaddressesthereis difference. While cross-examining PW1 appellant/accused elicited that fact also. It is on these facts the contention of the non-receipt of notice is raised. Learned trial court considered them and negatived the contention.

27.This court has gone through the entire record. PW1 during his cross-examination after admitting the difference in addresses stated that appellant accused altogether had three addresses. As per Ex.P8 postal acknowledgement card the notice was served at the address mentioned on that postal acknowledgement. It bears the signature and a rubber stamp showing that it was received on behalf of proprietor of

Visakha talkies. PW1 admits the signature on Ex.P8 is not that of an appellant accused. A reading of entire cross-examination of PW1 only points out the difference in addresses but it never challenged the correctness of the addresses. The evidence of PW1 that appellant accused has three addresses is also not challenged. Ex.P2 agreement indicates the office address and Ex.P7 legal notice and Ex.P8 postal acknowledgementseemtoindicatehouseaddress.Sinceboth addresses belong to the appellant/accused he did not challenge the correctness of those addresses. Moreover, appellant /accused never suggestedneverdisclosedwhataccordingtohimishiscorrect address. Therefore, on facts it is right to conclude that notice was served on the correct address of the appellant. Even otherwise as per

Crl.Appeal No.47-19-15-VI ADJ Court, Knl the principles laid down in CC Alavi Haji vs Palapetti muhammed (2007) 14 SCC 750, the accused/appellant ought to have paid the cheque amount within 15 days of receipt of summons from the court and sought for rejection of the complainant. Any failure to do that disentitles him from raising questions concerning non-service of notice.

For these reasons this court agrees with the finding of the trial court and negatives the appellants contention concerning non- receipt of notice.

28.In the grounds of appeal it is contended that PW2 admitted that the transactions were not shown in income tax returns and that he did not file them into the court. It is contended that the amount became unaccounted money and cannot be recovered and prosecution shallfail.InsupportofithecitedajudgmentreportedinR.

Chennakesava Rao Vs. P. Laxmi Narasaiah, 2017 Law Suit (Hyderabad)

688. That was a case of a money lender failing to maintain accounts and it was in that context their Lordships discussed the concept of unaccounted money holding that a prosecution under section 138 of

NegotiableInstrumentsActcannotbemaintained.Thisvaluable principle does not assist the appellant/accused herein. The present case is not about the lending of money and recovery of it. In the present case appellant having received rights over feature film was liable to pay agreed consideration and gave the cheque and that was dishonoured. Therefore, the entries in income tax returns for the complainant do not arise. Hence this contention is negatived.

29.In theWritten arguments the appellant states that as per order 30 Rule 1 of Civil Procedure Code r/w 69 (2) of Partnership Act

Crl.Appeal No.47-19-16-VI ADJ Court, Knl 1932, the person suing must be a partner at the time of accruing of cause of action. In this case the firm was registered on 08.11.2004 and

Ex.P2 agreement was much prior to it on 02.11.2011 and therefore, there is no cause of action to file this case. This argument was not raised before the learned trial court and not mentioned in the grounds of appeal. In fact the provisions stated by the appellant are with reference to civil suits and not for criminal prosecution. PW2 signed

Ex.P2 agreement on behalf of complainant firm. It is at his behest

Ex.P7 statutory notice demanding cheque amount was given. It is undisputed that the accused did not pay the amount covered by the subjectmatterchequeandthuscauseofactionaroseforfiling complaint. By then PW1 was also a partner of the firm. For all these reasons this contention of the appellant is found to be without any merit.

30.Contending that a blank cheque was given appellant/accused states that a prosecution under section 138 of Negotiable Instruments

Act cannot be maintained and cited Avon Organics Ltd., versus Pioneer products Limited, New Delhi reported in 2003 Law Suit (AP) 676. On considering this the argument is rejected for the following reasons. The evidenceonrecordestablishthatthesubjectmattercheque legitimately went from the hands of the appellant/accused into the hands of the respondent/ complainant. Evidence on oath given by PW2 showed that appellant/ accused filled up all the contents of the cheque except the date and on his instructions the date was inserted by the complainant.Appellant/accusedfailedtoshowanyevidenceof circumstances contrary to this. Having given such cheque he must reap consequences. Once it is proved that cheque was signed by him and

Crl.Appeal No.47-19-17-VI ADJ Court, Knl voluntarily given by him he must reap the consequences as held in Bir

Singh versus Mukesh Kumar AIR 2019 SC 2446. Hence, this contention of appellant is negatived.

31.A reading of the impugned judgment having been scrutinized in the context of grounds raised by the appellant accused and after considering the entire evidence on record this court finds that the finding that the learned trial court are based on evidence and proper reasoning and there is no merit in the contentions raised by the appellant. Therefore no interference is called for by this court in this appeal. Hence, point is answered against the appellant.

32.It is to be noticed that this accused/appellant prosecuted by same respondent/complainant in three cases one for each cheque.In all those three cases, appellant/accused was convicted and sentenced to pay compensation with interest at 9% per annum from the date of complaint, within one month from the date of judgment of the learned trial court and in default to undergo simple imprisonment for a period of three months. It seems it is in that context the impugned judgment indicates that the default sentence shall run consecutively.

33.Intheresult,Crl.A.No.47/2019isdismissedandasa consequence of it the judgment and sentence that accused has to pay compensation amount of Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% per annum from the date of filing of the complaint, within one month from the date of judgment to PW1, in default to suffer simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act, passed by learned Special

Crl.Appeal No.47-19-18-VI ADJ Court, Knl

Judicial Magistrate of First Class (Proh.&Ex.), Kurnool in C.C.432/2016,

dated 10.04.2019, holds good.

Therefore,theappellant/accusedshallremitRs.5,00,000/- (Rupees five lakhs only) along with interest as ordered by the learned trialcourtfailingwhich,accused/appellantshallundergosimple imprisonmentforthreemonths.Thedefaultsentenceshallrun consecutivelywithanyothersentenceinflictedagainst accused/appellant in other cases.Furnish him free copy of judgment.

Learned trial court is directed to see that the punishment inflicted is enforced forthwith.

Typed to my dictation by the Stenographer, corrected and pronounced by me through virtual Court, this 17 th day of May, 2021.

Sd/-V.A.L.Sathyavathi,

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Crl. Appeal No.119/2018 -1-VI ADJ Court, Knl

In the Court of the Special Judge for Trial of Cases under SCs & STs (PoA) Act

–cum- VI Additional Sessions Judge, Kurnool.

Present: - Smt V.A.L. Sathyavathi,

Special Sessions Judge for trial of cases under SCs & STs (PoA) Act –cum- VI Additional District and Sessions Judge, Kurnool

Thursday, the 25 th day of August, 2022

CRIMINAL APPEAL No.119/2018

From what Court the appeal is The Special Judicial Magistrate of First Class (for preferred.Proh. & Excise), Kurnool.

No. of the case in that CourtDVC No.34/2015

No. of the appealCriminal Appeal No.119/2018

Name and description of the Kummari Krishna, S/o Late Tikkanna, Hindu, age 39 years, Occ: Agriculturist, Julakal village, appellants Vaddepalli Mandal, Mahaboob nagar District. The sentence and law under which DVC 34/2015 is partly allowed granting (i) Protection order u/s.18 of the Act, prohibiting the it was imposed in the lower court respondent/RW1 from entering the place of employment of the aggrieved person/PW1, prohibiting the respondent/RW1 from causing violence to the dependents, other relatives or any person who give the aggrieved person/PW1 assistance from domestic violence and from alienation of assets (ii) Residence Order u/s.19 of the Act, directing respondent/Rw1 to secure same level of alternate accommodation or pay rent of Rs.2,000/- p.m. for separate residence of PW1, on failure of providing alternate accommodation to PW1, from the date of their seeking for accommodation i.e., from 03.07.2018 (iii) Monetary relief u/s.20 of the Act, granting maintenance @ Rs.3,000/- per month to PW1 from the date of order

(iv) Respondent/RW1 is directed to pay compensation amount of Rs.3,00,000/- to PW1 including damages for the injuries for her mental torture and emotional distress u/s.22 of the Act, (v) Respondent/RW1 is directed to deposit the monthly maintenance of Rs.5,000/- into the account of PW1, commencing from July, 2018, on or before 10th of every succeeding month, (vi) so far as the other reliefs claimed by PW1 are concerned, the same are dismissed, and (vii) furnish a copy of this order to the complainant u/s.24 of the Act. Communicate a copy of the order to the concerned police free of cost.

Whether confirmed, modified or In the result, this appeal is allowed in part. revised and if modified, the modification. Date of filing27-07-2018 Date of presentation27-07-2018 Date of notice issued by the court 28-07-2018 to appear. Date of bail bonds, if the appellant -- let out on bail. Date of appellants/respondents 29-08-2018 ordered to appear. Date of hearing 16-02-2022 Date of judgment25-08-2022

Crl. Appeal No.119/2018 -2-VI ADJ Court, Knl

versus

Kummari Padmavathi, W/o K. Krishna, Aged about 35 years, Hindu, Occ: Housewife, R/o Merugudoddi village, Burandoddi post, Kodumur mandal, Kurnool District. …Respondent

This Criminal Appeal coming on 16.02.2022 before me in the presence of Sri Y. Jayaraju, Advocate for the Appellant and of Sri K. Uma Hanumnatha Rao, Advocate for respondent, and having stood over for consideration till this day, this Court passed the following:-

J U D G M E N T

This criminal appeal is filed by the respondent in D.V.C.

No.34/2015 against the orders passed by learned Judicial Magistrate of

First Class (For Proh. & Excise), Kurnool, dated 29.06.2018.

02.The case of the complainant in DVC 34/2015 as could be seen from the petition, in brief, is as follows:

The petitioner and respondent are spouses and their marriage was solemnized in the year 1994 as per Hindu rites and customs at Julakal village, Vaddepallimandal, Mahaboobnagar District.

On the demand of the respondent and in-laws, the parents of the petitioner gave a dowry of Rs.50,000/- by way of cash, 5 tulas of gold ornaments and silver anklets as dowry to the respondent.

Immediately, after the marriage the petitioner joined the respondent for conjugal life at in-laws house and the marriage was consummated.

Out of their wed lock, they blessed with two daughters namely Kavya and Ankitha who are aged about 9 years and 8 years respectively.

Later, the respondent addicted to bad vices and debauchery and used to not to turn up the house for several days and coming by late nights in drunken state. The respondent used to also neglect the family without providing minimum necessities to petitioner. When the petitioner questioned his attitude then the respondent picked up the

Crl. Appeal No.119/2018 -3-VI ADJ Court, Knl quarrel and abused her in filthy language and beat her indiscriminately without any reason. The same was informed by the petitioner to her parents and elders and then the parents of the petitioner approached the respondent and conducted several mediations to mend the behaviour of the respondent, but in vain. The respondent harassed the petitioner with black and blue and caused the abortion to the petitioner in Yashoda hospital and the parents of the petitioner bear Rs.80,000/- for her medical expenses. She meted out the same as he will change in future. But day by day his harassment and humiliation was increased as petitioner did not give birth to male child. Due to unbearable harassment she informed the same to her parents. Then the parents of the petitioner conducted several panchayaths to mend the behaviour of the respondent. But in vain.

03.On 02.05.2014, the respondent constructed two portions house at Julakal village stage and an inaugural function was conducted. On that day the respondent brought one lady by name

Manohari and introduced her to the petitioner as his second wife. Due to his attitude the petitioner fell shocked and caused mental agony

before the relatives and when she questions the respondent how he

can marry as subsisting of her marriage. Then the respondent picked up a quarrel and threatened the petitioner to lead the conjugal life with second wife. When the petitioner refused the same, the respondent threatened her with dire consequences and forcibly necked her out of the house by keeping her two daughters with guilty intention though objected by some of her relatives. There is no other go to petitioner, the petitioner went to her parents house. Later, she conducted several mediations but in vain. Later, she filed the police case before

Shantinagar police station against the respondent for the offence

Crl. Appeal No.119/2018 -4-VI ADJ Court, Knl under section 498-A and 494 of IPC. Presently the petitioner is living under the mercy of old aged widowed mother.

04.The respondent is an agriculturist and having Ac.12.00 cents of land in Julakal village and cultivating through his own tractor and also having two houses at Julkal village and earning a sum of

Rs.8,00,000/- p.a. Apart from this the respondent is having movable and immovable properties in his hand. Though the respondent is having sufficient means the respondent is intentionally neglecting to provide minimum needs to the petitioner. The petitioner is not having any sufficient means to maintain herself and she is depending up on the mercy of her old aged widow mother. The respondent is having sufficient means and he is bound to provide minimum necessities and monthly maintenance to the petitioner as he has voluntarily deserted the petitioner as supra. Hence, she prayed the court to grant the reliefs as prayed for.

05.Against this, respondent filed counter denying all the allegations made by the petitioner in her complaint except the marriage between the petitioner and respondent and the children.

Further, he contends that the respondent married the petitioner in the month of February 1994. After the marriage the petitioner/complainant did not conceive for a long period of 10 years and more. Since there were no issues, elders in the family and complainant herself advised the respondent to go for second marriage in order to have children.

The complainant and respondent many times took medical advice for begetting children through the complainant but they were not fruitful.

On the persistent demand of the complainant this respondent hesitantly agreed for second marriage. With full and voluntarily consent and active participation of the complainant herself taking the

Crl. Appeal No.119/2018 -5-VI ADJ Court, Knl responsibility of performing the marriage of the respondent with one

Manohari. The respondent married the said Manohari in the month of

March 2004. The complainant herself performed all the rituals as per the caste customs and usage and brought the second wife to the family fold. The complainant, the respondent and the respondent second wife lived under one roof. Fortunately, after the one year of the second marriage of respondent, the complainant became pregnant and delivered her first daughter by name Kavya in the month of March 2005 and on 18.06.2006, the second daughter Ankitha was born to the petitioner. Meanwhile, the second wife also begot two daughters. In the year 2007 the second marriage the second wife of the respondent by name Manohari got employment as Anganwadi worker in Julakal village. Since then the troubles were started in the family.

06.The complainant became jealous of her co-sister and started harassing the respondent on one pretext or the other and demanding the entire agricultural property to be transferred into her name lest she threatened to file criminal case, DVC and other cases against the respondent. The elders of the village and also relations from both sides held several panchayaths and persuaded the complainant that it is not proper on her part to raise such disputes in a smooth running family. Since the second wife is doing job the complainant demanded to have her own Kirana shop in Julkala village to be run by the complainant and accordingly the respondent invested money and started Kirana shop. The complainant also gave it in written in the presence of elders and that the respondent married one

Manohari with the full consent of the petitioner, because of not having issues by her and that she received Rs.15,000/-. The Kirana shop was set up by the respondent in the year 2010 and since then the

Crl. Appeal No.119/2018 -6-VI ADJ Court, Knl complainant is running the Kirana shop at Julakal village. As time passed, the complainant increasingly became jealous and subjected the respondent to physical and mental harassment demanding separate residence. Then the respondent considered the demand of the complainant and set up a separate residence to both wives since 2010 in the same village. The respondent has been discharging his responsibility towards both wives and children as dutiful husband and father by maintaining both families. Thus both wives were having their own personal separate income, while the respondent has been taking care of maintenance of the family and children by cultivating the agricultural land of Ac.7.05 cents owned by him and not as Ac.12.00 cents as alleged by the complainant. Meanwhile, the second wife of the respondent got constructed house in Julukal village with her earnings and savings. This caused heart burn to the complainant, though she got her own house given by the respondent. The complainant picked up quarrel and galata at the time of ‘GruhaPravesham’ on 2.5.2014 demanding equal share in the said house which was not obliged by the said Manohari.

07.On that the complainant left the place threatening the respondent that she will take revenge by filing criminal cases against them. The complainant did not heed the advice of the elders of the village. As a result, the respondent suffered ignominy of being under judicial custody for few days. There were several panchayaths conducted after this case but the complainant insisted that the entire agriculture property should be registered and transferred in her favour only, not even the daughters. The complainant not only deserted the respondent but also her two minor daughters uncared and went to her native place.

Crl. Appeal No.119/2018 -7-VI ADJ Court, Knl

08.Thus the complainant suppressed the facts and filed this

DVC and on all and fictitious grounds. There are no merits or iota of truth in the allegations made by the complainant and the allegations of the complaint does not attract any of the provisions relating to DVC.

Hence, the respondent prays to dismiss the DVC, in the interest of justice.

09.On behalf of complainant, PW1 and to PW2 were examined and got marked Ex.P1 to P10. On behalf of the respondent, RW1 to

RW4 were examined and got marked Ex.R1 to R6.

10.Learned trial court after hearing both the parties allowed that petition in part and granted (i) Protection order u/s.18 of the Act, prohibiting the respondent/RW1 from entering the place of employment of the aggrieved person/PW1, prohibiting the respondent/

RW1 from causing violence to the dependents, other relatives or any person who give the aggrieved person/PW1 assistance from domestic violence and from alienation of assets (ii) Residence Order u/s.19 of the Act, directing respondent/Rw1 to secure same level of alternate accommodation or pay rent of Rs.2,000/- p.m. for separate residence of PW1, on failure of providing alternate accommodation to PW1, from the date of their seeking for accommodation i.e., from 03.07.2018 (iii)

Monetary relief u/s.20 of the Act, granting maintenance @ Rs.3,000/- per month to PW1 from the date of order (iv) Respondent/RW1 is directed to pay compensation amount of Rs.3,00,000/- to PW1 including damages for the injuries for her mental torture and emotional distress u/s.22 of the Act, (v) Respondent/RW1 is directed to deposit the monthly maintenance of Rs.5,000/- into the account of PW1, commencing from July, 2018, on or before 10th of every succeeding month, (vi) so far as the other reliefs claimed by PW1 are concerned,

Crl. Appeal No.119/2018 -8-VI ADJ Court, Knl the same are dismissed, and (vii) furnish a copy of this order to the complainant u/s.24 of the Act. Communicate a copy of the order to the concerned police free of cost.

11.It is that order which is challenged in this appeal by raising various grounds of appeal and the following are the grounds of appeal raised by the appellant/respondent.

Appellant contends that the order of the lower court is against law, weight of evidence, material available on record and probabilities of the case and erred in passing the impugned orders without applying judicious mind to the material evidence available on record. The order of the lower court is patently illegal and not in accordance with law.

12.Appellant contends that lower court failed to appreciate the fact that they very evidence of respondent and her own brother/PW2 totally belies and negates the version of the respondent on all aspects of the case of domestic violence and admissions made by them clearly proved that the respondent has filed DVC only to extract money from the appellant. The lower court failed to appreciate the fact that the daughters of the appellant and respondent have categorically deposed against the respondent in all aspects of the case.

13.Appellant contends that the lower court erred in not appreciated the documentary evidence filed by the appellant which clearly goes to show that it is the respondent who is responsible for the marriage of the appellant with his sister’s daughter and she signed on

Ex.R5 which document was admitted by her brother/PW2, wherein she agreed for the said marriage.

Crl. Appeal No.119/2018 -9-VI ADJ Court, Knl

14.Appellant contends that the lower court erred in holding that the respondent suffered domestic violence when the fact and evidence on record goes to show that till the date of desertion of the respondent on 02.05.2014, everything was ok and she categorically admitted that from 1994 to till 2014, there are no family disputes and the dispute between her and appellant from 02.05.2014 onwards, when she left the company of the appellant. Thus, there is no single incident of harassment of domestic violence against the respondent as along as she was with the appellant after her marriage till 02.05.2014.

thereafter, there was no occasion for the appellant and respondent to live together and as such the question of any act of domestic violence against her. PW2 her brother also admitted that they did not file any company against the appellant till 02.05.2014. PW2 further admitted that appellant is looking after the daughters and thus there is clinching evidence against the respondent herself, the lower court has committed grave illegality and irregularity in allowing the DVC and granting reliefs.

15.Appellant contends that the lower court ought to have appreciated the fact that the respondent herself voluntarily deserted the petitioner and their two minor daughters, on her own volition and has been residing away from them since 02.05.2014 and harassed the appellant filed criminal case in Cr.No.38/ 2014 u/s.498A, 494 of IPC of

Shantinagar Police Station, M.C.No.11/2014 on the file of Judicial

Magistrate of First Class, Kurnool where she is getting monthly interim

maintenance.

16.Appellant contends that the lower court failed to appreciate the fact that the respondent failed to prove the any act of domestic violence or harassment against the petitioner. The lower court

Crl. Appeal No.119/2018 -10-VI ADJ Court, Knl committed grave irregularity in granting relief when no act of domestic violence is proved by the respondent.

17.Appellant contends that under the above circumstances, for the above reasons, prays to set aside the orders passed in DVC 34/2015, dated 29.06.2018 by the Spl. Judicial Magistrate of First Class (Proh. & Excise), Kurnool by allowing this appeal.

18.Learned counsels on both the sides advanced their oral arguments.

19.Point that arise for determination is:

Whether the impugned order is against law and facts and requiring any interference?

Points answered:

20.From the application filed by the wife, counter filed by the husband and also from the evidence adduced from both the sides, from the findings recorded by learned trial court, from the grounds of appeal, and arguments advanced on both the sides, the following are found to be undisputed and relevant facts.

21.Parties to this litigation got married in the year 1994. While their marriage was subsisting, the man/husband married another women in the year 2004. Thereafter, the man and his two wives lived in the same house. Subsequent to the 2nd marriage, the 1st wife gave birth to two daughters, thereafter 2nd wife gave birth to children. The man and 1st wife fell apart in the year 2014. Thereafter, the 1st wife has been living with her parents. Her husband and two children along with 2nd wife and children are living together. Then, 1st wife filed

Crl. Appeal No.119/2018 -11-VI ADJ Court, Knl written information with the police against her husband for the offences u/s. 498-A, 494 of IPC and police registered it as a case in

Cr.No.38/2014. She also filed MC 11/2014 seeking maintenance and they are pending. Then, she filed DVC 34/2015. In that DVC, the following are the prayers made:

“This is an application filed by the wife/aggrieved person u/s.12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the respondents for Protection Order u/s.18 of the Act, directing the respondents to stay away from the dependents/relatives/ any other person of the aggrieved person to prohibit violence against her, directing the respondents not to cause any harm to the life of the complainant, prohibiting alienation of assets by the respondent and further return of dowry of Rs.50,000/- of cash, 5 tulas of gold ornaments and silver anklets, which was taken by Respondent; Residence Order u/s.19 of the Act restraining the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, directing the respondents to remove themselves from the shared household; restraining the respondents from renouncing their rights in the shared household; directing the respondents to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, Monetary Reliefs u/s.20 of the Act, Rs.20,000/- towards food, clothes, medication and other basic necessities, Rs.5,000/- towards household expenses, Rs.5,000/- towards other expenses, total Rs.30,000/- per month, and compensation of Rs.20,00,000/- u/s.22 of the Act.”

22.After due enquiry, learned trial court passed the following order:

“IN THE RESULT, the Domestic Violence case filed by PW-1 is partly allowed granting the following reliefs:

(i) Protection Order u/s.18 of the Act, prohibiting the respondent-RW- 1 from entering the place of employment of the aggrieved person-PW- 1, prohibiting the respondent-RW-1 from causing violence to the dependants, other relatives or any person who give the aggrieved person-PW-1 assistance from domestic violence and from alienation of assets.

(ii) Residence Order u/s.19 of the Act, directing respondent-RW-1 to secure same level of alternate accommodation or pay rent of Rs.2,000/- p.m. for separate residence of PW-1, on failure of providing alternate accommodation to PW-1, from the date of their seeking for accommodation i.e., from 3-07-2018.

(iii) Monetary relief u/s.20 of the Act granting maintenance @ Rs.3,000/- per month to PW-1 from the date of order.

(iv) Respondent-RW-1 is directed to pay compensation amount of Rs.3,00,000/- to PW-1 including damages for the injuries for her mental torture and emotional distress, u/s.22 of the Act.

(v) Respondent-RW-1 is directed to deposit the monthly maintenance of Rs.5,000/- into the account of PW-1, commencing from July, 2018, on or before 10th of every succeeding month.

(vi) So far as the other reliefs claimed by PW-1 are concerned, the same are dismissed.

Crl. Appeal No.119/2018 -12-VI ADJ Court, Knl

(vii) Furnish a copy of this order to the complainant u/s.24 of the Act. Communicate a copy of the order to the concerned police free of cost.”

23.One of the allegations of the application of the wife is that her husband/appellant drinks alcohol and indulges in physical and mental harassment. After analysing the evidence of PW1, PW2 and

RW1, learned trial court disbelieved this version. The wife started living separately since 2014 and she filed DVC in the year 2015. The case of petitioner/wife/respondent in appeal doesn’t indicate any alienations of husband coming to her place of residence and causing any physical or physiological assaults or threats against her or her relatives. Thus, there was no threat to the physical integrity of the wife at any place of her stay or elsewhere. Based on the evidence on record, there was no finding recorded by the learned trial court about husband trying to alienate the assets causing deprivation of property to his wife of children. Despite these established facts and circumstances, the learned trial court granted first relief protection order under 18 of the

Act, prohibiting the respondent/RW1 from entering the place of employment of the aggrieved person/PW1, prohibiting the respondent/

RW1 from causing violence to the dependents, other relatives or any other person who is aggrieved person/PW1 assistance from domestic violence and from alienation from assets.

24.Since facts on record do not warrant granting of such relief and since appellant raised a valid challenge against that relief that part of the relief granted by the learned trial court is set aside.

25.From the evidence of PW1 and Ex.P1 1-B register and from the admissions made by husband/Rw1 during his cross examination, learned trial court recorded a finding that this appellant/husband owns more than Ac.9.00 of agricultural land and owns two houses and other

Crl. Appeal No.119/2018 -13-VI ADJ Court, Knl movable properties. This finding is not seriously challenged in this appeal. Thus, financial capacity of appellant is an established fact.

26.According to appellant, his 1st wife / respondent herein is running a kirana store and the money for running such kirana store was supplied by him. When this theory was put to PW1, she denied it as false. Her two daughters deposed on opposite side as RW2 and

RW4. Both these daughters did not have whispered a word about their mother running a kirana store. Appellant/husband did not produce any document showing that respondent/wife is running a kirana store.

Appellant merely relies on Ex.R5. A perusal of Ex.R5 shows that there is mention that she received Rs.15,000/- in the year 2010 from appellant/husband. Appellant say that it is for running a kirana store.

Learned trial court disbelieved the genuineness of this document when it considered the aspect concerning 2nd marriage. In the opening of this court, that finding of the trial court is well reasoned and doesn’t require any interference. Even otherwise, receiving money for running kirana stores itself doesn’t permit any inference that she established such a krana store and has been running a business and she has been earning profits by the time of filing of DVC in the year 2015. For all these reasons, it is to be recorded that the respondent/wife has no kirana stores and has no earnings.

27.From the above discussion, it is found that respondent/wife has no assets, no occupation, no earnings and thus she is a dependent against whom she shall look at for her survival. She has to look at her husband for her survival and husband has got duty to look after her subtenants. In this case, husband/appellant is found with enough wealth and earnings. It is in this context, the learned trial court granted Rs.2,000/- per month towards monthly rent in the absence of

Crl. Appeal No.119/2018 -14-VI ADJ Court, Knl providing accommodation by her husband. It is also granted Rs.3,000/- monthly maintenance. The total of all this comes to Rs.5,000/- per month. These reliefs are challenged by the husband in this appeal.

28.The contention of the appellant is that his wife/respondent left the matrimonial home without any reasonable cause and therefore, granting of about reliefs by the trial court is incorrect. The veracity of this contention is to be examined on the following facts:

29.After felling apart in the year 2014, this appellant/husband did not create for provision for residence for respondent. Appellant by himself did not provide any money for her for monthly maintenance towards her substents. The very fact that respondent/wife had to file

MC 11/2014 is an indicative that appellant/husband did not choose to

make a provision for her survival. Sec.20 of Protection of Women from

Domestic Violence Act contains provision for maintenance. It has not prescribed a rule that only when wife left with reasonable cause, the husband has to pay maintenance. Failure to provide shelter and food is economical violence and thus domestic violence. The maintenance u/s.20 is apart from any maintenance claimed u/s.125 of Criminal

Procedure Code. Even as per the grounds of appeal, final adjudication of MC 11/2014 is not done. In these circumstances, the order of the trial court in this regard, is correct on facts and law. There are no merits in the appeal against this part of the relief granted by the trial court.

30.Learned trial court noticed the evidence including Ex.P6 to

P10 medical prescriptions and held that on four occasion respondent/wife suffered abortion. It also noticed that 2nd marriage of appellant/husband is against law and caused mental agony, distress and that is domestic violence and granted compensation of

Crl. Appeal No.119/2018 -15-VI ADJ Court, Knl

Rs.3,00,000/-, this is challenged by the appellant on the ground that 2nd marriage was on the consent of respondent/wife. Even if that is assumed to be correct, that is not a defence for appellant. Prohibition of bigamous marriage is a policy of law. Even if it is with consent or without consent, it is an offence. The fact that respondent/wife lodged police complaint for the offence u/s.494 of IPC and the fact that Ex.R5 is a created document or enough to deny or repel the contentions of appellant.

31.The other contention of the appellant is that he was subjected to domestic violence by his wife/respondent as she had left him and his children. This contention is not possible under law since husband/appellant doesn’t fall within the definition of aggrieved person defined in Sec.2(a) of Protection of Women from Domestic Violence

Act, 2005. Therefore, granting compensation cannot be found fault with. However, considering the fact that for 10 years i.e., from 2004 to 2014, respondent/wife did not complain about 2nd marriage, the compensation is reduced from Rs.3,00,000/- to Rs.2,00,000/-. Hence, point is answered accordingly.

32.In the result, this appeal is allowed in part. The order of the learned trial court in prohibiting respondent/RW1/husband from entering the place of employment of the aggrieved person/PW1/wife, prohibiting the respondent/RW1/husband from causing violence to the dependants, other relatives or any person who give the aggrieved person/PW1/wife assistance from domestic violence and from alienation of assets, is set aside. However, other part of the relief granted u/s.19 of Protection of Women from Domestic Violence Act, 2005 by the trial court directing respondent/RW1/husband to secure same level of alternate accommodation or pay rent of Rs.2,000/- per

Crl. Appeal No.119/2018 -16-VI ADJ Court, Knl month for separate residence of PW1/wife, on failure of their seeking for accommodation i.e., from 30.07.2018 and relief u/s.20 of the Act granting maintenance at Rs.3,000/- per month to PW1/wife from the date of order, holds good. The part of relief granted u/s.22 of Act by the trial court directing the respondent/RW1/husband to pay compensation amount of Rs.3,00,000/- to PW1/wife including damages for the injuries for her mental torture and emotional distress, is modified and compensation amount of Rs.3,00,000/- is reduced to

Rs.2,00,000/-. The rest of the claim of petitioner’s/wife’s claims dismissed by learned trial court holds good. Each party is directed to bear their own costs.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, this 25th day of August, 2022.

Sd/-V.A.L.Sathyavathi,

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Copy to the Special Judicial Magistrate of First Class (For Proh. & Excise), Kurnool.

III-ADJ, NDL. 1

IN THE COURT OF THE III-ADDITIONAL DISTRICT JUDGE,

KURNOOL AT NANDYAL.

Present:- Sri Moka Suvarna Raju,

III-Additional District Judge, Nandyal.

Monday the 11th day of April 2022

APPEAL SUIT No.12 of 2014

Between:

Thumu Chandrasekhara Reddy, aged 50 years, S/o.Chinna Siva Reddy, Hindu, Cultivation, R/o. Munagala Village, Nandyal Mandal, Kurnool District . . .Appellant/Plaintiff -And-

Pothireddy Seshi Reddy, S/o. Baki Reddy, aged 50 years, Hindu, cultivation R/o. Munagala Village, Poluru Post, Nandyal Mandal, Kurnool District . . . Respondent/Defendant

On Appeal under Order XLI Rule 1 of C.P.C. against the Judgment and Decree,

dated 31.05.2014 passed by the learned Principal Junior Civil Judge, Nandyal,

in O.S No.777 of 2005.

Between:

Thumu Chandrasekhara Reddy, aged 50 years, S/o.Chinna Siva Reddy, Hindu, Cultivation, R/o. Munagala Village, Nandyal Mandal, Kurnool District . . .Plaintiff -And-

Pothireddy Seshi Reddy, S/o. Baki Reddy, aged 50 years, Hindu, cultivation R/o. Munagala Village, Poluru Post, Nandyal Mandal, Kurnool District . . . Defendant * * * * This Appeal Suit was coming on 01-04-2022 for hearing before me in the presence of Sri C.Madduleti, Advocate for the Appellant/Plaintiff

Sri D.Madhava Reddy, Advocate for the Respondent/Defendant and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

01. The unsuccessful Plaintiff in O.S No.777/2005 on the file of the Principal

Junior Civil Judge, Nandyal has preferred this Appeal being aggrieved by the dismissal of the by the Judgment and Decree dated 31.05.2014.

02.Before looking into the grounds of Appeal it is necessary to have a glance at the pleadings. The Plaintiff had filed the Suit for Perpetual Injunction against

III-ADJ, NDL. 2 the Defendant in respect of Ac.03.64 cents in Sy.No.89/2. He pleaded that the

Paternal grandfather of the Plaintiff namely Thumu Pulla Reddy was a Land-

Lord; that after his death, his father namely Chinna Siva Reddy had succeeded the Plaint Schedule Properties along with other properties; that his father had died in the year 1984; that after his death, disputes arose among the brothers of the Plaintiff; that on the advise of the well-wishers, they orally partitioned their properties; that the Plaint Schedule Properties along with some other properties have fallen to the share of the Plaintiff; that mutation had been effected in the name of the Plaintiff; that he has been in continuous possession and enjoyment over the Plaint Schedule Properties. He further pleaded that the

Defendant had no manner of right over the Plaint Schedule Properties; that due to the recent Elections misunderstandings have developed between him and the

Defendant; that the Defendant was trying to trespass into the Plaint

Schedule Properties and hence, the Suit has been filed.

03.The Defendant had pleaded in his Written Statement that there was no oral partition between the Plaintiff and his brothers namely Thumu Eswar Reddy and Lakshmi Prabhakar Reddy; that the Plaintiff had suppressed the facts and filed the Suit; that he deliberately mentioned the Survey Number of the Plaint

Schedule Properties as “89/2” instead of “89”, to have false claim. He further pleaded that the Plaintiff and his two brothers have obtained a loan of

Rs.29,000/- on 16.12.1988 from Rayalaseema Grameena Bank, Poluru by mortgaging the land in Sy.No.89 belonging to them; that since they committed default, the Bank had filed a Suit vide O.S No.37/1996 on the file of the Principal

Junior Civil Judge, Nandyal, obtained a Decree, brought the property to sale in

E.P No.15/1998; that the Defendant became successful bidder in the Court

Auction held on 06.12.1999 for Rs.1,00,000/-, being the highest bidder. He further pleaded that after conducting the Sale, the Plaintiff and his two brothers have filed an Objection Petition under Order XXI Rule 90 of C.P.C., vide E.A

III-ADJ, NDL. 3

No.92/2000, but the same was dismissed on 05.11.2001; that against which they preferred C.M.A., before the III Additional District Judge, Nandyal vide

C.M.A No.9/2001 which was dismissed as well on 28.07.2003; that against such

Order, they preferred Revision vide C.R.P No.3959/2003 on the file of the

Hon’ble High Court of Andhra Pradesh which was also dismissed on

03.02.2004 and thereafter, Sale Certificate was issued for the land in Sy.No.89 in the name of the Defendant; that the Plaintiff and his two brothers after exhausting all the remedies have created an Agreement of Sale in a white paper as if, Thumu Chinna Siva Reddy the father of the Plaintiff had sold the Plaint

Schedule Property for Rs.1,10,000/- on 05.09.1983 to one Jayareddy Swamy

Reddy of Yerraguntla Village, Bandi Atmakur Mandal and delivered possession; that the said Suit vide O.S No.86/2004 on the file of the Principal Junior Civil

Judge, Nandyal is pending; that in the said Agreement of Sale, the Sy.No. was

wrongly mentioned as “89/2” instead of “89” deliberately; that the Defendant had filed Written Statement therein; that having lost all the remedies, the

Plaintiff, at the instigation of his brothers had filed the Suit suppressing the facts, for wrongful claim; that the Defendant has been in possession and enjoyment of the properties in 26.02.2005. The learned Principal Junior Civil Judge, Nandyal having conducted trial and appreciated the evidence held that the Plaintiff had failed to establish that he has been in exclusive possession and enjoyment of the Plaint Schedule Property but the Defendant is able to establish that he was put in possession of Ac.05.31 cents in Sy.No.89 through process of law and ultimately dismissed the Suit.

04. The Plaintiff has preferred the Appeal on the following grounds:

(i) that the Lower Court had erred in believing the evidence of the Defendant and dismissing the Suit;

(ii) that the Lower Court did not observe that the Sy. No. of the Plaint Schedule Property is different from the Sy.No. claimed by the Defendant;

(iii) that the Plaintiff had filed all the material arguments to establish his right and possession over the Plaint Schedule Property;

III-ADJ, NDL. 4

(iv) that the Lower Court without considering the documents erroneously held that the Plaintiff had not establish his right, hence, the Appeal may be allowed by setting aside the Judgment and Decree and ultimately the Suit may be Decreed granting for Permanent Injunction against the Defendant. The parties did not let in any additional evidence in the Appeal.

05.Both the Counsel have submitted Written Arguments and Case Law in addition to their oral submissions. The learned Counsel for the Appellant has argued that the Plaintiff apart from examining himself and getting the documents marked as Exs.A1 to A8, summoned the Branch Manager, Rayalaseema

Grameena Bank, Poluru examined him as CW.1 and got marked Exs.X1 and

X2; that the Ex.A8 Adangal proves the possession and enjoyment of the Plaintiff over the Plaint Schedule Properties; that the Defendant had admitted in the cross-examination that the Plaint Schedule Properties is the ancestral properties of the Plaintiff; that the Sy.No.89 was sub-divided; that he had purchased the property in the Court Auction in the Sy.No.89 pyki and thus, the claim of the

Defendant is different from the claim made by the Plaintiff; that the Bank

Manager of Rayalaseema Grameena Bank, Poluru had deposed about mortgage of the property in Sy.No.89 pyki; that the Exs.A1 to A8 clearly establishes the title and possession of the Plaintiff and thus submitted to allow the Appeal.

He relied upon the following Case Law :

(i). Rame Gowda (Died) by LRs v/s. M.Varadappa Naidu (Died) by LRs and another (AIR 2004 (SC) 4609) “ The person in peaceful possession is entitled to retain possession; that the law presumes that possession go with the title unless rebutted; that the owner of any property may prevent even by using reasonable force he trespass from an attempted trespass”.

(ii). Potte Ramanna and another V/s. Mukka Rajanna and others (2005 (3) APLJ 389)

It was held - “In a Suit for Permanent Injunction simplicitor, it is well settled that the most relevant issue is whether the Plaintiff is in possession of the land on the date of filing of the Suit. The relief of injunction is discretionary. Even if the Plaintiff proves his possession, in a given Case, the Court in its discretion can deny the relief. In the event of the Court accepting the Case of the Plaintiff, the Court has to apply the principles, prima-facie Case and balance of convenience and hardship”.

III-ADJ, NDL. 5

(iii) G.Trinadha Swamy V/s. Gandham Satyanarayana and others 2006 (4) ALT 627 C.P.C- Order XXXIX Rule.1-Presumption of Possession - “Law provides for drawing of presumption forward and backward, particularly in the context of possession. If the Plaintiff is in a position to point out that backed by his title, he is in possession of the property, up to a particular point of time, the same state of affairs deserves to be presumed in a forward direction. Such presumption must however stop, if it meets a road block, in the form of a more assertive and evident proof or probability of the Defendant being in possession of the same property. Another important aspect is that though the weakness of a Defendant in a Suit cannot be treated as the strength of the Plaintiff, in the course of relative assessment of claims, such a weakness, if exists, would have its own role to play. The reason is that cases cannot be expected to exist in a set or moulded pattern. The Court has to weigh the probabilities, than to require the Plaintiff to prove his case beyond any reasonable doubt”.

(iv). Bongunoori Bal Reddy and others V/s. D.V. Satyanarayana Raju and others 2009 (5) ALT 828

C.P.C.- Order XXXIX Rules 1 and 2 – Temporary Injunction. “In a Suit for Perpetual Injunction title does not assume primary importance. It is referred mostly to justify claim for possession”.

(v). P.Buchi Reddy and others V/s. Ananthula Sudhakar 1999 (2) ALT 192 “It is well settled that in a suit for injunction the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession, though without title, can resist interference from another who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. Under sub-section (3) of Section 38 a perpetual injunction may be granted to the plaintiff when the Defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and where the injunction is necessary to prevent multiplicity of judicial proceedings”.

Thus, it was held that a Suit for Bare Injunction is maintainable without a prayer for declaration of title.

06.The learned Counsel for the Respondent has argued that one Chinna

Siva Reddy had three sons namely Thumu Eswar Reddy, T.Chandra Sekhar

Reddy and T. Lakshmi Prabhakar Reddy; that they have Ac.07.34 cents of agricultural land in Sy.No.89 pyki in Munagaala Village limits; that they jointly obtained loan from Rayalaseema Grameena Bank, Poluru for digging a Bore-

Well by mortgaging an extent of Ac.05.31 cents out of Ac.07.34 cents; that as they committed default, the mortgaged property was sold in Court Auction; that

III-ADJ, NDL. 6 in spite of several obstacles caused by the Plaintiff and his brothers, Sale

Certificate was issued in the name of the Defendant and possession was delivered to him and that the Defendant has been in possession and enjoyment of the Ac.05.31 cents of the property; that in all the proceedings it was clearly held that the Survey Number Concerned is “89 pyki” and that there is no Sy.No.

“89/2” and that the Plaintiff had failed to prove that the Sy.No.89 was sub- divided by producing any Survey Register. He further argued that the Plaintiff had relied mainly upon a copy of the Adangal (Ex.A8) for the year 2000. He submitted that the Adangal shows that Sy.No.89 consist of Ac.07.34 cents; that since Ac.05.31 cents was sold the remaining land of Ac.02.03 cents shown as

Sy.No.89/1 stands in the name of P.Narayana Reddy; that the land shown as 89/2 in the Ex.A8 and the land mortgaged by the Plaintiff and his brothers before the Rayalaseema Grameena Bank, Poluru is one and the same and thus the own document of the Plaintiff disproves his Case. He further argued that the

Plaintiff has to establish that he was in possession and enjoyment of the Plaint

Schedule Property as on the date of filing of the Suit; that he filed the Suit in the year 2005 but relied upon the Exs.A1 to A8 to prove his possession; that the

Exs.A1 to A8 are very old documents; that they could not produce any piece of document relating to the year 2005 in which the Suit was filed that with fabricated documents the Plaintiff had filed the Suit to have wrongful claim and thus submitted to dismiss the Appeal.

He relied upon the following Case Law:

01. Balakrishna Dattatraya Galande V/s. Balakrishna Rambharose Gupta and another (2019 SCCR 398) “In a Suit filed under Section 38 of Specific Relief Act, possession on the date of Suit is a must for grant of Permanent Injunction. When the Plaintiff fails to prove that he was in actual possession of the property as on the date of the Suit, he is not entitled to the Decree for Permanent Injunction”

02. Vangala Chandrakanth Reddy V/s. Makireddy Lakshmi Kanth Reddy and others 2021 (4) ALT 380 (DB) (AP)

III-ADJ, NDL. 7

Wherein it was held “ one has to approach the Writ Court with clean hands and put forth all the facts before the Court without suppressing or concealing any fact”.

03. Dolla Subbarao and another V/s. Eeda Amrutharao and others 2018 (1) ALD 529

Specific Relief Act Section 39 “ It is settled law that tax receipts are not evidence of possession, likewise Bank Pass Books, Pension Pass Book and Ration Card. When a specific contention was raised by the Respondents that the survey numbers given for the Plaint Schedule Property by the Plaintiff are not correct, it was incumbent on the part of the Plaintiff to adduce independent evidence to establish the fact that the survey numbers mentioned by them actually relate to the Plaint Schedule Property, but since the Plaintiffs have not examined any neighbours or Revenue Officials or marked any Revenue Record, they shall fail.”

04. Jabisetti Kutumba Rao, Khammam District and others V/s. Karnati Venkat Rao, Khammam District and others (2017 (4) HLT 671)

Specific Relief Act Section 38 – Grant of Perpetual Injunction-Principles:

“It is a settled principle of law that the Plaintiff has to establish that he was in possession of the Suit Schedule Property as on the date of filing of the Suit in order to seek Perpetual Injunction. In a Suit for Perpetual Injunction, the Court has to consider whether the Plaintiff was in possession of the property as on the date of filing of the Suit or not”

05. Sadasivuni Manmadeswara Rao V/s. Patnana Lakshmana Rao and others (2012 (1) ALD 511)

Specific Relief Act - Section 38: “In a Suit for injunction, it is essential for a Plaintiff to prove his possession over the Plaint Schedule Property as on the date of filing of the Suit. The scrutiny of the plea about the title would be only to satisfy the Court that the possession, even if established by the Plaintiff is not that of an outright stranger or trespasser and that he holds a semblance of right vis-a-vis the property. This is obviously to overcome the prohibition ordained by law that relief of injunction cannot be granted against a true owner. In case the Defendant in a Suit of this nature claims a right or title, the Court would be forced to examine whether it is relatively superior that the one pleaded by the Plaintiff. Barring this, the Court cannot pronounce upon the legality or otherwise of the title pleaded either by the Plaintiff or the Defendant”.

06. Second Appeal No.64/2021 of Hon’ble High Court of A.P. delivered on 08.03.2022 Wherein it was held “In view of law declared by the Hon’ble Apex Court, the Suit filed and continued by the Appellants/Plaintiffs for Perpetual In- junction notwithstanding the denial of title by the Respondents may not proper. The dismissal of the Suit by the Trial Court and confirmation of the Judgment and Decree by the Appellate Court do not call for any interference under Sec- tion 100 C.P.C”.

07. In the light of the arguments advanced by both the Counsel and

the Case Law quoted I now formulate the following Points for

determination:

Whether the Plaintiff ha s been in possession and enjoyment of the Plaint

III-ADJ, NDL. 8

Schedule Property and whether the Judgment of the learned Principal Junior

Civil Judge, Nandyal is erroneous if so, the same be interfered in the Appeal.

08. Finding: My finding is that the Plaintiff had failed to prove that he has been in possession and enjoyment of the Plaint Schedule Property. I found no illegality in the Judgment of the learned Principal Junior Civil Judge, Nandyal, to interfere in the Appeal.

09. Reasons for my finding are as under: (9.1) The various Case Law submitted before this Court explains that in Suits for Injunction simplicitor the

Plaintiff has to establish his possession as on the date of the Suit. The Plaintiff claims exclusive title over the Plaint Schedule Property claiming the same to have been succeeded from his father and in an oral partition held among his brothers. The Specific claim of the Defendants is that there was no partition among the brothers of the Plaintiff; that they all have mortgaged Ac.5.31 cents in

Sy.No.89 pyki in the Rayalaseema Grameena Bank, Poluru and obtained loan for digging a Bore-Well; that since they committed default the property was sold in Court Auction; that the Defendant became successful bidder and that Sale

Certificate had been granted in his favour and possession had been delivered to him. The Defendant had specifically denied the claim of the Plaintiff that the

Sy.No., of the Plaint Schedule Property is “89/2”.

(9.2) The nature of the evidence of the Plaintiff from his deposition in his examination-in-chief as well as in the cross-examination is to be observed while appreciating the evidence. The Plaintiff in his examination-in-chief has deposed that his elder brother Thumu Eswara Reddy who got Ac.05.34 cents in Sy.No.89 pyki, had borrowed a loan from the Rayalasweema Grameena Bank by mortgaging his share of land but as insisted by the Bank, since the partition was oral one, he too signed therein; that the property was brought to Sale; that the

Defendant being the highest bidder purchased the property and Sale Certificate was issued to him and that under the guise of such Sale Certificate, the

III-ADJ, NDL. 9

Defendant is trying to trespass into the Plaint Schedule Property. But in the cross-examination when questioned about the Court Sale, he deposed as under “I do not know whether the Hon’ble Court of Senior Civil Judge sold the property in Sy.No.89 in Public Auction and the Defendant herein was the successful bidder in that auction and the Hon’ble Court confirmed the Sale in his favour”.

(9.3)The Defendant had specifically pleaded in his Written

Statement that the Plaintiff and his brothers have initiated various proceedings subsequent to the Decree obtained by the Rayalaseema Grameena Bank.

When the same was posed to the PW.1, he deposed as under: “According to me I am not at all a party in O.S No.36/1996 and also in E.P. proceedings which was filed by Rayalaseema Grameena Bank. I do not know whether myself and my two brothers jointly filed a set-aside Petition of Sale in E.P

No.15/1998 in O.S No.36/1996 and the said Petition was dismissed. According to me, I never preferred any Appeal before the Hon’ble III Additional District

Judge, Nandyal and the Hon’ble High Court. I do not know C.M.A No.4/2003

was dismissed by the Hon’ble III Additional District Judge, Nandyal. I do not know myself and my brothers preferred second Appeal in C.R.P. on the file of the Hon’ble High Court of A.P. in C.R.P No.59/2003 and the same was dismissed”.

(9.4) Now, I look into the documents marked through the Bank Manager and through the Defendants to ascertain what was the original property that was mortgaged to the Bank and who were parties to the proceedings in various

Courts. Ex.X1 is a certified copy of the Loan Application of Thumu Eswar

Reddy. The property that was mortgaged was described as under: “Sy.No.89

Ac.03.64 cents, Sy.No.89 Ac.01.67 cents, total Ac.05.31 cents”. Ex.B1 is the

Sale Certificate issued by the Principal Senior Civil Judge, Nandyal in E.P

No.15/1998 in O.S No.36/1996. In this Sale Certificate, the Defendant herein

III-ADJ, NDL. 10

Pothureddy Seshi Reddy is shown as Auction Purchaser, Rayalaseema

Grameena Bank is shown as Decree Holder. One Thumu Eswar Reddy, Thumu

Chandra Sekhar Reddy, Thumu Lakshmi Prabhakar Reddy and Pothureddy

Chandra Sekhar Reddy have been shown as J.Drs. Among them the J.Dr No.2

Mr.Chandra Sekhar Reddy is the Plaintiff herein. In the Sale Certificate, the property is described as under:

(i) Sy.No. 89 pyki Ac.03-64 cents

(ii) Sy.No. 89 pyki Ac.01-67 cents, with common boundaries as below:

East : The land of Thumu Thirupal Reddy

West : The land of Mahanandi Reddy

North : The land of Lakshmi Reddy

South : The land of Yallur Anki Reddy (9.5) The allegation of the Plaintiff is that the Defendant having obtained

Sale Certificate is trying to trespass into the Plaint Schedule Property which has been in his possession and enjoyment. But in the boundaries shown to both the items, no where the Plaintiff is shown as one of the boundary owners. When the

Plaintiff is not a boundary owner to the land purchased by the Defendant in the

Court Auction where he would encroach and how he would encroach is not explained by the Plaintiff. When the boundaries of the Plaint Schedule Property are examined, no where, Mr. Pothireddy Seshireddy (the Defendant) is shown as one of the boundary owners. The boundaries to the Plaint Schedule Property are shown as under:

East : Land of Thumu Viswanatha Reddy

West : Lands of Thumu Nageswara Reddy

North : Land of Thumu Eswar Reddy

South : Lands of Thumu Bhaskara Reddy, Y. Sivarami Reddy and others.

The certified copy of the Decree and Order in E.A No.92/2000 in E.P

No.15/1998 in O.S No.36/1996 (Ex.B2) shows that the Petition under Order XXI

III-ADJ, NDL. 11

Rule 90 of C.P.C. was filed by Thumu Eswar Reddy, Thumu Chandra Sekhar

Reddy and Thumu Lakshmi Prabhakar Reddy. Among them the 2nd Petitioner is the Plaintiff. In the other exhibits i.e., the certified copies of Decree and Order in

C.M.A No.4/2003, CRP 3959/2003, the Plaintiff is shown to be the 2nd Applicant but during the cross-examination, he denied that he made applications and participated in the proceedings.

(9.6) The Defendant had pleaded that the Plaintiff and his brothers have created an Agreement of Sale in white paper in favour of one Dereddy Swamy

Reddy and that in turn Swamy Reddy had filed a Suit against the Plaintiff, his brothers and the Defendant herein. When the same was asked the PW.1 during the cross-examination, has deposed that he does not know the person by name

Dereddy Swamy Reddy and whether he had filed any Suit against his brothers and Defendant for Specific Performance in respect of the property covered in

Sy.No.89 vide O.S No.86/2004 on the file of the Senior Civil Judge, Nandyal.

The Defendant by getting marked a certified copy of the Decree in O.S

No.86/2004 on the file of the II Additional Senior Civil Judge, Nandyal FTC

Nandyal had brought on record that the Suit filed by Dereddy Swamy Reddy for

Specific Performance was dismissed for default. The Decree shows that the

Plaintiff is shown as 2nd Defendant and the Defendant herein is shown as

Defendant No.5. This part of evidence of the Plaintiff denying even the Court proceedings wherein he is one of the parties in respect of the land in Sy.No.89 shows his evil conduct to have wrongful gain by filing a Suit for mere injunction against the property purchased by the Defendant in the Court Auction.

(9.7) In view of the nature of the dispute and on consideration of the observations of the Hon’ble High Court and the Supreme Court in the Case Law quoted, the very existence of the land claimed by the Plaintiff in Sy.No.89/2 and his possession therein is not proved by producing any Revenue Record. Among the Revenue Records, 1-B Register is an authenticated Register to prove the

III-ADJ, NDL. 12 title of the property. Though the Suit was filed for injunction simplicitor and the

Plaintiff is not able to establish the identity of the property more particularly when the Defendant is able to prove his title and possession in respect of Ac.03.64 cents and Ac.01.67 cents in Sy.No.89 pyki totaling to Ac.05.31 cents. In the absence of any authenticated record the contention of the Plaintiff that the Plaint

Schedule Property comes under Sy.No.89/2 which is different from the property claimed by the Defendant can not be accepted. The Plaintiff did not plead as to how many Acres of property his father had succeeded from his father. When the

Plaintiff claims that the property owned by his father was partitioned among his brothers by way of oral partition, he should have mentioned total extent of property and the extent of property each one got in such oral partition. It is the well settled principle of law that tax receipts or other Revenue Record does not confer title and even cannot establish possession of the persons claiming through such receipts.

(9.8) The Defendant had pleaded that in the tax receipts (Exs.A3 to A6) for the years 1988, 1989, 1990, 1991, the Survey Numbers and extent of land owned by the Plaintiff have not been mentioned. The evidence of the Bank

Manager (CW.1) shows that the Plaintiff and his brothers have mortgaged their family property an extent of Ac.05.31 cents in Sy.No.89. He substantiated his contention by getting the Loan Application marked Exs.X1. The Plaintiff had no where pleaded in which year partition had taken place. Division of the family properties is a major event in a joint family and if it is by way of Partition Deed there would be a document and if it is an oral partition certainly each member would remember the year of the partition though not the date specific. In such event, under the Record of Rights Act, the Tahsildar concerned should make enquiry and issue Pattadar Pass Book and Title Deed specifying the nature of acquisition of the property but the Pattadar Pass Book and Title Deed does not show such recital. Thus, the Plaintiff has failed to prove the existence of the

III-ADJ, NDL. 13

Plaint Schedule Property and his possession over the same. On the other hand, the Defendant could prove his title and possession over Ac.05.31 cents in

Sy.No.89 which he purchased in Court Auction. The learned Principal Junior

Civil Judge, Nandyal had considered the oral and documentary evidence

minutely, discussed the same elaborately and rendered the Judgment by applying the law concerning Perpetual Injunctions. Thus, I found no illegality or perversity in her Judgment to interfere in the Appeal and no necessity to receive

additional evidence which was sought by the Respondent to get marked certain

documents in support of his contention.

10. As a result, this Appeal Suit is dismissed with costs confirming the

Judgment and Decree dated 31.05.2014, in O.S No.777/2005, on the file of the

Principal Junior Civil Judge, Nandyal.

Dictated to the Stenographer, typed by her, corrected and pronounced by me in

the open Court on this the day 11th day of April 2022.

Sd/-. Moka Suvarna Raju,

III-ADDITIONAL DISTRICT JUDGE,

KURNOOL at NANDYAL.

APPENDIX OF EVIDENCE

- NIL - Id/-.M.S.R.,

III-ADJ, NDL.

Copy to the Principal Junior Civil Judge, Nandyal.