Sri.v.krishna Murthy, M.com, L.l.m.,

1 SC.NO.270 of 2015

IN THE COURT OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE

CHITTOOR.

Present: Sri V.Krishna Murthy,

Additional Assistant Sessions Judge. Chittoor.

Monday, the Fourth (4th)day of January, 2016.

S.C.No. 270 of 2015

Between: The state represented by the Inspector of Police, C.C.S Chittoor.… Complainant and:

1. A. Augustin Anand, aged 38 years, s/o Ambhikapathi, Sankaraiahgunta, Chittoor.

2. T.A.Praveen Kumar @ Raju, aged 23 years, s/o T.Anand, Kasiralla village, Yadamari mandal.

3. M.G.Anand, aged 26 years, s/o Govindarajulu, D.No.24-361/1 Bharath Nagar, Chittoor.

4. R.Bhaskar, aged 25 years, s/of Ramu, D.No.4-1068, Gayathri Nagar colony, Chittoor.

5. D.Suresh Babu, aged 27 years, s/o D.Ramanaiah, D.No.15-299/1, Srinagar colony, Chittoor.

.... Accused

This case coming on 31.12.2015 before me for final hearing in the presence of Sri S.R.A.Rosedar, Incharge Additional Public Prosecutor (Grade- II) for the complainant and of Sri R.Chandrasekhar, Advocate for the Accused ; and having stood over for consideration till today, this court delivered the following:-

J U D G E M E N T

The Inspector of police, C.C.S Police station, Chittoor laid charge sheet against the accused in Crime No.39 of 2014 for the offence U/Sec. 397 IPC alleging as follows.

2. A1 is resident of Sankaraiahgunta, Chittoor, A2 is resident of Kasiralla village, Yadamari mandal, A3 M.G.Anand is resident of Bharath Nagar,

Chittoor, A4 is the resident of Gayathri Nagar colony and A5 is the resident of

Srinagar colony. The defacto-complainant Maddirala Bayya Reddy is resident of Royachoti.

On the intervening night of 9/10-4-2014 at 11.30 pm near Kattamanchi tank outside R.T.C bus-stand, Chittoor the accused with an intention to rob the inmates of Eicher Van bearing registration No.AP-04-W-4949 got the vehicle 2 SC.NO.270 of 2015 stopped by keeping the motorcycle across the road behind the R.T.C bus- station, Chittoor abutting water tank. The driver Shaik Arabjan noticing the motorcycle stopped the vehicle i.e., Eicher Van and immediately A1 to A5 came there and pulled down the driver Shaik Arabjan and robbed him cash of

Rs.400/- and when the complainant objected for the same he was pushed to ground and beat him with legs in the result he sustained injury to his shoulder. During the beating Nokia Cell Phone and cash of Rs.2,000/- fallen on the ground from the pocket of complainant and the accused have taken away the same. Since Eicher Van contains load of mangoes which are perishable and which have to be transferred to Chennnai, the complainant did not go to Police station, but went to Chennai to unload mangoes. On 10.4.2014 at 11.25 pm the complainant gave report to police C.C.S and the same is registered as a case in Crime No.39 of 2014 and investigated into.

During the course of investigation on 6.10.2014 at 12.30 am at

Suddalagunta Flour Mill, Kattamanchi, Sambaiahkandriga road side, Chitoor town, the Sub-Inspector of police arrested A1 to A5 while preparing for committing dacoity and basing on their confession the deadly objects were seized concerned in Crime No.117 of 2014 of C.C.S P.S Chittoor for the offences u/ss 399, 402 and 411 IPC. In pursuance of voluntary confession made by the accused he seized the property concerned in Crime No.39 of 2014 u/s 397 IPC of C.C.S P.S under a cover of mahazar attested by panchayatdars at 12.30 am on 6.10.2014. Later accused were sent to judicial custody.

During further course of investigation on 1.11.2015 on the requisition given by Inspector of Police, C.C.S Police, Chittoor the learned III Additional

Judicial Magistrate of First Class, Chittoor has conducted Test Identification

Parade of the accused A1 to A5 at District Jail, Chittoor and drafted proceedings. Hence, the charge.

3. After filing of charge sheet before the learned III Additional Judicial

Magistrate of First Class, Chittoor, it was taken on file for the offence u/s 397

3 SC.NO.270 of 2015

IPC and registered as PRC.NO. 22 OF 2015.

4. After appearance of accused before the learned III Additional Judicial

Magistrate of First Class, Chittoor copies of documents were furnished to them

and case was committed to Hon’ble District and Sessions Court u/s 209 Cr.P.C and the said case registered as SC.No.270 of 2015 and made over to this court for trial according to law.

5. After appearance of the accused before this court and after hearing the learned Additional Public Prosecutor and learned counsel for accused and on perusing the material available on record, charge u/s 397 IPC was framed, read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried. Then, the matter was posted for trial.

6. In order to prove the guilt of the accused, prosecution has cited as many as nine (9) witnesses, but examined 7 witnesses and got marked Ex.P1 to Ex.P9 and Mo.1 and Mo.2The learned Additional Public Prosecutor has given up the evidence of Lw2 M. Sreenivasulu Reddy and closed the evidence of Shaik Arabjan Lw3 in view of filing memo by learned Additional Public

Prosecutor stating that Shaik Arabjan had been to Kuwait.

7. After closure of the prosecution evidence, accused were examined u/sec. 313 Cr.P.C and they denied the incriminating material available in the evidence of witnesses and stated no defence evidence. Then the matter is posted for arguments.

8. Now the point for determination is :

Whether the prosecution has proved the guilt of accused for the

offence u/s 397 IPC beyond all reasonable doubt ?

9. Heard the learned Additional Public Prosecutor and learned counsel

for accused at length.

POINT

10. It is the contention of the learned Additional Public Prosecutor that even though the complainant has identified only A1 during Test Identification

Parade conducted by the learned III Additional Judicial Magistrate of First 4 SC.NO.270 of 2015

Class, Chittoor who is examined as Pw. the provision u/s 30 of Indian Evidence

Act postulates that when more persons than one are being tried jointly for the same offence, and confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other persons as well as against the person who makes such confession. In the case on hand, even though A1 is identified by the complainant the confession of A1 is with regard to participation of A2 to A5 the offence and his confession clinchingly establishes the case of the prosecution. Ex.P2 mahazar if believed is sufficient to hold that accused are guilty of the offence u/s 397 IPC.

11. The learned Additional Public Prosecutor further contends that the evidence of Pw1 to Pw7 is cogent, consistent and supports the case of the prosecution. Even though there are minor discrepancies or embellishments they would not cut the case of the prosecution.

12. The learned Additional Public Prosecutor further contends that the accused have been involved in number of offences relating to dacoity, therefore a lenient view cannot be taken into consideration and they may be punished according to law.

13. Per contra, it is the contention of the learned counsel for accused that prosecution has miserably failed to make out a case against the accused.

The accused were shown to the complainant prior to the conduct of Test

Identification Parade and in such circumstances the sanctity of Test

Identification parade is waned. To support his contention, he placed reliance in a decisions reported in(1)1985 Andhra Weekly Report 357 Kannuru

Yamadi Changaiah and others Vs. The State of Andhra Pradesh.

(2)1998(2) ALD Criminal 335 SC Ravindra @ Ravi Bansi Gohar etc Vs.

State of Maharastra (3)1998(1) ALD Criminal 903 SC Shaik Umar

Ahmad Shaikh and another Vs State of Maharastra.

14.The learned counsel for the accused further contends that two mahazars were drafted. First mahazar was drafted on 5.10.2014 at 12.30 am 5 SC.NO.270 of 2015 with regard to arrest of accused and another mahazar was drafted on 6.10.2014 at 4.00 am but the said mahazar was not marked. Therefore, non marking of second mahazar dt. 6.10.2014 strikes the very root of the prosecution case.

15.The learned counsel for accused further contends that the driver of

Eicher Van namely Arabjan who is material witness was not examined by the prosecution. His evidence will disclose that whether the accused have robbed

Rs.400/- or not and whether he can identify the accused or not. No documentary evidence is produced by the prosecution to show that Arabjan had been abroad. In other-words he was purposefully withhold, hence, the absence of evidence of material witness dilutes the case of the prosecution.

16.The learned counsel for accused further contends that in Ex.P1 descriptive particulars of accused were not mentioned apart from that the model of the cell phone or even the colour of the cell phone not mentioned.

There is considerabe delay in registering the FIR and it reached the learned

Magistrate belatedly.

17. The learned counsel for accused further contends that there is ambiguity in seizure of articles and Pw1 and Pw2 have not identified the property in the court. The identity slips on the articles were not pasted and signatures of accused were not obtained. All these things would go to show that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt, therefore, accused are entitled for acquittal.

18. The learned counsel for accused also relied upon a decision with regard to search and seizure proceedings that when recovered articles have not marked or proved by them and no explanation was given by prosecution the identity of the incriminating articles cannot be said to have been established as reported in 1998 SAR (Criminal) 473 Jasbir Singh Vs State of Punjab.

19. The learned counsel for accused contends that non-suspects are not of similar age, similar height of the suspects. The learned Magistrate has not 6 SC.NO.270 of 2015 taken steps to select those persons hence identification proceedings are vitiated and much importance cannot be given to it. To support his contention he placed reliance on a decision reported in 1993 (1) ALT (Crl) 9 (DB)

Polisetti Suryanarayanamurthy Alias Nanji and others Vs State of

Andhra Pradesh

20. The learned counsel for accused further contends that according to prosecution the offence was alleged to have taken place behind the RTC bus station in the midnight and in the place of offence no sufficient lighting, is there, therefore, the question of Pw1 identifying the accused in the darkness do not arise and not possible to identify. To support his contention, he placed reliance in 2007 (1) ALD Criminal 739 SC State of Rajasthan Vs

Netrapal and others.

21. Inview of the foregoing submissions, the learned counsel for the accused canvasses the court to acquit the accused as prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.

(A) Whether delay in FIR given by Pw1 is properly explained by

the prosecution?

22. Admittedly the alleged offence took place on the intervening night 9/10-4-2014 at 11.30 am. The complainant who is examined as Pw1 has given report on the next day i.e., 10.4.2014 at 11.25 pm. Nearly there is delay of twenty-four hours for giving a report. The explanation offered by the prosecution is that immediately after the incident the complaint went away to

Chennai to unload mangoes which are perishable and took treatment in Vijaya

Hospital for his injuries, therefore, he came on 10.4.2014 at 11.25 pm and gave report. No doubt the mangoes are perishable fruits but for giving report it may not take more than one or two hours. Therefore, there is no possibility of mangoes perishing within the time gap of two hours. Hence, the explanation offered by the prosecution is not convincing. Further Pw1 can report immediately after unloading the mangoes at Chennai. Admittedly travel from Chittoor to Chennai is four to four-and-half hours and even if Pw1 7 SC.NO.270 of 2015 starts Chittoor at 11.00 am he can reach Chennai 5 or 5.30 am and after unloading mangoes he can return by 6.30 or 7.00 am and reach Chittoor by 11.00 am. But according to prosecution, Pw1 has admitted in Vijaya Hospital,

Chennai for treatment of his injuries, and according to Pw4 the then Inspector of Police, C.C.S Police he obtained Xerox copy of C.T.Scan relating to treatment of Pw1 at Vijaya Hospital, Chennai. He has not filed any document to show that Pw1 has taken treatment at Vijaya Hospital, Chennai. The prosecution has not taken any steps to summon the doctors at Chennai to verify whether Pw1 has taken treatment at Vijaya Hospital, Chennai. In the absence of evidence from Pw1 in respect of his treatment at Vijaya Hospital,

Chennai the delay occurred in giving report to police belatedly cannot be ignored. First Information report is the best information to the police to set the criminal law into motion and to take up investigation and find out the truth. Therefore, in my considered view the delay in lodging FIR creates suspicion over the version of prosecution that immediately after the incident

Pw1 went to Chennai and thereafter he took treatment at Vijaya Hospital,

Chennai and returned to Chittoor and gave report.

23. Further according to prosecution, Pw1 has given report on 10.4.2014 at 11.25 pm. But a perusal of FIR received by the learned III

Additional Judicial Magistrate of first Class, Chittoor under Ex.P3 discloses that

it was received on 10.4.2014 at 7.00 pm. The Magistrate court is located in

Chittoor and very nearer to CCS PS, Chittoor which would have been sent

before 7.00 pm, but there is a considerable delay of nearly eighteen hours.

This is also creates suspicion over the veracity of the prosecution. Therefore, I once again reiterate that there is no plausible explanation from the prosecution for delay in registering FIR and also sending the same to learned

III Additional Judicial Magistrate of 1st Class, Chittoor.

(B) Whether the contents in Ex.P2 Mahazar proved beyond

doubt?

24. The contention of the learned Additional Public Prosecutor is that if 8 SC.NO.270 of 2015 court believes Ex.P1 the accused should be convicted. He further contends that Ex.P2 is proved beyond reasonable doubt and the confession of one of the accused against other accused is admissible under section 30 of Indian

Evidence Act and in this case A1 has categorically stated in confession statement that the offence was committed by him along with A2 to A5, therefore, all of them are liable for guilty of the offence.

25. On the other hand, it is the contention of the learned counsel for the accused that Ex.P2 which contains the statements of all the accused itself is defective and police ought to have recorded separate confessional statements from each of the accused. He further contends that Ex.P2 which was alleged to have recorded by the Sub-Inspector of Police, C.C.S PS does not contain the signatures of the accused. Further the Sub-Inspector of Police, C.C.S PS cannot record the same when independent witnesses i.e., V.R.O and V.R.I were summoned to record the confessional statement in their presence. It is well settled principle of law that ‘a confession statement before the police officer is not admissible and it cannot be proved against the accused unless the confessional statement leads to discovery of fact u/s 27 of Indian Evidence

Act’. The learned counsel further contends that the alleged seizure of property under Ex.P2 under caption of recovery mahazar (Swadeena mahazar) is false and it is prepared at the police station. He further contends that Pw1 states that his Nokia cell phone was robbed by the accused and the same belongs to him. Pw2 during cross-examination admitted that police informed to him that cell phone belongs to lorry driver. Therefore, the story of prosecution that cell phone belongs to Pw2 is not correct and the alleged seizure is false.

26. According to joint confessional statement of A1 to A5 under Ex.P2 the accused informed in the alleged offence are five persons whereas Pw1 in his report to police under Ex.P1 stated that there are six persons. Pw2 who is stated that there are only four persons whom the police have arrested in his presence. Therefore, the inconsistent version putforth by Pw1 in Ex.P1 and alleged joint confessional statement of accused under Ex.P2 and evidence of 9 SC.NO.270 of 2015

Pw2 that there are only four persons whom police have arrested creates suspicion over the veracity of prosecution as to exact persons who participated in the offence. When the police have recorded joint statement of all the accused it cannot be relied upon and to support the same he placed reliance in a decision reported in 1985 Andhra Weekly Reporter 357 A.P Kannuru

Yamadi Changaiah and others Vs. State of Andhra Pradesh.

27. Admittedly Pw1 has given report under Ex.P1 to the police stating that some six unknown persons attacked him and the driver and robbed cash and Nokia Cell phone of him and lorry driver. But according to prosecution only five persons i.e., A1 to A5 have participated in the offence and confessional statements of A1 to A5 establish the same. Pw2 who is V.R.A during cross-examination categorically stated that there are only four persons and police have recorded confession statement in his presence and arrested them. Three different versions putforth by the prosecution leads to suspicion as to the exact number of persons alleged to have participated in the offence.

The prosecution cannot give versions differently and request the court to believe their version. Further confessional statement under Ex.P2 was recorded by the Sub-Inspector of police, C.C.S Police. When he summoned

V.R.A and V.R.O who are examined as Pw2 and Pw3 what required him to record the confessional statement by himself which task will not be undertaken by the police when independent witnesses are available with the police. They should have entrusted the task to them to record confessional statement. Further to establish that the accused have given confessional statement they should have obtained their signatures, but admittedly the police have not obtained their signatures in Ex.P2 mahazar. Only Pw2 (VRI),

Pw3(VRO), and Sub-Inspector of police who recorded the confessional statement have signed in Ex.P2. It is a defective procedure adopted by the police and gives suspicion whether it was prepared at the place where the accused were alleged to have arrested or in the police station. The decision relied upon by the learned counsel for the accused reported in 1985 Andhra 10 SC.NO.270 of 2015

Weekly Reporter 357 A.P Kannuru Yamadi Changaiah and others Vs.

State of Andhra Pradesh their Lordship held that “ joint statement by several accused leading to discovery of stolen articles is not desirable and separate statements have to be recorded”. The said decision to that extent applicable to the facts of the case on hand. Therefore, in my consideration view, Ex.P2 document is not in accordance with the procedure laid down under

Indian Evidence Act and section 25 of the said Act prohibits recording of confessional statement by police officer to prove the case against the accused unless that confessional leads to discovery of fact.

28. According to prosecution as per confessional statement of A1 police along with mediators went to the house of A1 and recovered cell phone relating to the offence and other silver articles relating to another offence.

The discovery of cell phone as per confessional statement can be admitted as per section 27 of Indian Evidence Act. But here again a doubt arises that whether the said cell phone belongs to Pw1 or not. Pw2 who is V.R.A and who was treated as hostile during cross-examination stated that police informed him that cell phone belongs to lorry driver. Ofcourse the said evidence is hearsay evidence, therefore, much importance cannot be attached. Here it may be noted that police has not conducted any Test Identification Parade to identify the robbed cell phone of Pw1. This is also a defect writs large on the face of police. The seizure mahazar was also marked under Ex.P2 along with confessional statement. Therefore, in my considered view that prosecution has failed to prove the contents of Ex.P2 beyond all reasonable doubt.

(C) Whether Test Identification Parade proved the case of

prosecution ?

29. It is the contention of the learned Additional Public Prosecutor that the learned III Additional Judicial Magistrate of 1st Class, Chittoor has conducted Test Identification Parade on 01.11.2014 at 3.00 pm after issuing summons to witness Shaik Arabjan and M.Bayya Reddy. Shaik Arabjan was not present and according to prosecution he had been to Kuwait and only Pw1 11 SC.NO.270 of 2015 was present and he participated in the Test Identification Parade and he identified only A1 and remaining four accused persons were not identified by him. Here it may be noted that Pw1 in his report did not mention about the descriptive particulars of each accused and their physical features. A1 is stout and he can be easily identified among other accused A2 to A5 who are lean and medium built persons. According to A1, he informed learned Magistrate when he was called at that time police has photographed him and shown the same to witness and witness has also seen him in the police station. No evidence will be produced for the same and same is denied by the police.

Whatever may be the reasons, it should be remembered that Pw1 has stated six persons involved in the offence, but the police have shown only five persons. There is no explanation from the prosecution about the sixth person and his whereabouts and his involvement in the offence. When Pw1 specifically stated in Ex.P1 report as to the involvement of six persons in the offence why the police has not arrested another person is a point to be considered. There is no explanation from the prosecution about the sixth person who was alleged to have participated in the offence as per the evidence of Pw1. There is also a suspicious circumstance to believe the veracity of the police version.

30. The criminal investigation cannot be done merely by preparing joint confessional statement under Ex.P2 but the contents therein must be proved by positive evidence by the prosecution. No identity slips were attached to the property alleged to have seized by the police from the house of A1. The signatures of the mediators were not taken. Failure of the police to paste identity slips on the seized property along with the signatures of Pw2 and Pw3 does not confirm to procedure in respect of search and seizure of property laid down in Criminal Procedure Code. The said view is fortified by a decision reported in 1998 SAR (Criminal) 473 Jasbir Singh Vs. State of Punjab in the said their Lordship held that “ The identity of the incriminating articles could not be said to have established before the court if the recovered articles 12 SC.NO.270 of 2015 having no mark on number of them and no explanation for not wrapping of them and applying a seal over them given by the prosecution witness” In the case on hand, the investigating officer admitted that no identity slips were attached and no marks and no signatures of mediators were obtained.

Therefore, even the seizure of property without established procedure cannot be considered. Mere identification of A1 by Pw1 is not suffice that all the accused who are alleged to have participated in the offence must be brought to book and the case against them have to be proved by cogent and consistent evidence. In this case, prosecution version creates so many doubts, therefore, inconsistent evidence of witnesses and joint confessional statement cannot be relied upon to convict the accused.

31. In view of the aforesaid discussion, I am of the opinion that prosecution has not proved the case against the accused beyond all reasonable doubt, therefore, they are entitled for benefit of doubt.

32. In the result, I find A1 to A5 not guilty for the offence U/Sec.397

IPC and they are acquitted u/s 235(1) Cr.P.C. The bail bonds of A1 to A5 shall be in force for six months. Mo.2 Cell phone shall be returned to Pw1 and Mo.1 shirt shall be destroyed after appeal time is over.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, this the 4th day of January, 2016.

Sd/- V.Krishna Murthy

ADDL. ASST. SESSIONS JUDGE

CHITTOOR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PROSECUTIONFOR DEFENCE

P.W.1: M.Bayya Reddy. P.W.2. S.Nagaraju,None P.W.3: K.Murali, P.W.4: M.Maheswar, P.W.5: K.K.Venkataramana, Sub Inspector of Police. P.w.6: G.Rajendra Prasad Naidu, Sub Inspector of Police, P.W.7: S.C.Raghavenda, III Addl. Judicial Magistrate of 1st Class, Chittoor.

13 SC.NO.270 of 2015

EXHIBITSMARKED

FOR PROSECUTION

Ex.P.1 :- Report of Pw1. Ex.P.2 :- Seizure Mahazar dt.6.10.2014. Ex.P.3 :- FIR in Crime No.39 of 2014 of CCS PS. Ex.P.4 :- Police proceedings dt.10.11.2014. Ex.P.5 :- Rough sketch of the scene of offence. Ex.P.6 :- Test Identification proceedings. Ex.P.7 :- Proceedings of Chief Judicial Magistrate,Chittoor dt.12.10.2014. Ex.P.8 :- Unserved summons of Shaik Arab Jhan (Lw3) Ex.P.9 :- Special report of police.

FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED:- Mo.1:Shirt. Mo.2:Cell Phone. Sd/- V.Krishna Murthy A.A.S.J. CTR // TRUE COPY// 14 SC.NO.270 of 2015

IN THE COURT OF THE ADDL. ASSISTANT SESSIONS JUDGE, CHITTOOR

Present: Sri V. Krishna Murthy,

Additional Assistant Sessions Judge

Monday, the Fourth (4th ) day of January, 2016

SESSIONS CASE No. 270 of 2015

Date of offence: 09.4.2014 Date of complaint: 10.4.2014 Date of apprehension of accused: 06.10.2014 Date of taken on file: 25.4.2015 Date of commencement of trial: 14.12.2015 Date of close of trial: 31.12.2015. Date of sentence or order: 04.1.2016.

Complainant: Inspector of Police, C.C.C PS Chittoor in Crime No.39/2014.

Name of the accused Father/Husband Name Age

1. A. Augustin Anand, S/o Ambhikapathi38 years

2. T.A.Praveen Kumar @ Raju, S/o T.Anand.23 years

3. M.G.Anand, S/o Govindarajulu26 years

4. R.Bhaskar, S/o Ramu25 years

5. D.Suresh Babu,S/o D.Ramanaiah.27 years

Village and Mandal Religion Calling

1. Sankaraiahgunta. ChittoorA1 Christian

2. Kasiralla village, Yadamari.A2 Hindu

3.D.No.24-361/1 Bharath Nagar ChittoorA3 HinduAll are coolies

4.D.No.4-1068, Gayathri Nagar colony, Chittoor.A4 Hindu

5.D.No.15-299/1, Srinagar colony, Chittoor.A5 Hindu

Offence charged: 397 IPC Plea of the accused: A1 to A5 pleaded not guilty Finding of the Court: Accused found not guilty for the offence u/s 397 IPC.

Sentence of Order:

In the result, I find A1 to A5 not guilty for the offence U/Sec.397 IPC and they are acquitted u/s 235(1) Cr.P.C. The bail bonds of A1 to A5 shall be in force for six months. Mo.2 Cell phone shall be returned to Pw1 and Mo.1 shirt shall be destroyed after appeal time is over.

Sd/- V.Krishna Murthy

ADDL. ASSISTANT SESSIONS JUDGE,

CHITTOOR

// True copy//

1

OS.NO.14 of 2011

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE :: CHITTOOR

Present :- Sri V.KRISHNA MURTHY

Additional Senior Civil Judge,

Tuesday, the fifth (5th ) day of January, 2016

ORIGINAL SUIT No.14 of 2011

Between: Union Bank of India, Yadamari Branch. Rep by its Branch Manager Sri P.Raja Rao. … Plaintiff

and

1. M.Devendra Kumar,

2. Smt M.Dhanalakshmi,

3. Smt Thanuja Rani,

4. Maheswari,

5. M.Yamuna,

6. M. Asharani @ Asha Latha.… Defendants.

This suit is coming on 28.12.2015 before me for final hearing in the presence of Sri. D.Rajendra Reddy, Advocate for plaintiff and of Sri C.K.Raghu. Advocate for defendants 1 and 2, and the defendants 3 to 6 remained exparte, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

Suit is filed for recovery of Rs.1,76,891/- on the foot of a promissory note from 1 out of the estate of deceased M.Thulasiram lying in the hands of defendants.

2. The facts set out in plaint in brief are as follows:

It is the case of the plaintiff bank that M.Thulasiram, son of M.V.Narayana

Swamy Naidu of Dasarapalle village, Yadamari mandal, Chittoor District has availed a sum of Rs.1,20,000/- from the plaintiff bank on 17.2.2005 for the development of agriculture and in evidence thereof the said M.Thulasiram had executed a hypothecation agreement on the same day in favour of plaintiff for the said sum, hypothecating the standing crops agreeing to repay the loan amount together with interest at 17.75% p.a. As per the terms of the crop loan agreement executed by

M.Thulasiram, due date for repayment of the loan amount was by January, 2006. But the borrower failed to repay the same as agreed upon.

It is the further case of the plaintiff bank that the said M.Thulasiram has also acknowledged the debt on 31.3.2008 by executing a demand promissory note for the outstanding amount as on the date of Rs.1,18,009/-. Since the account became a bad debt, interest was not calculated in the system from 31.3.2006 onwards and 2

OS.NO.14 of 2011

accordingly the balance of amount was shown by then Rs.1,18,009/- as on 31.3.2008, but as per correct calculations are made the due amount comes to Rs.1,39,941/- as on 31.3.2008.

It is the further case of the plaintiff bank that subsequently inspite of repeated demands made by the plaintiff bank the said M.Thulasiram did not repay the loan amount as agreed upon. Later the said M.Thulasiram died about a year ago leaving behind his legal heirs. They have been in possession and enjoyment of the estate of

M.Thulasiram.

It is the further case of the plaintiff bank that subsequently inspite of repeated demands made by the plaintiff bank and also issuance of notice on 13.5.2010 demanding to repay the aforesaid amount due to the bank the defendants did not repay the same.

It is the further case of the plaintiff bank that the defendants are liable to pay the suit amount from out of the estate left by M.Thulasiram. The said Thulasiram has acknowledged the debt within three years from the due date of repayment i.e., 2 January, 2006. Hence, the debt is not barred by limitation and within time.

It is the further case of the plaintiff bank that their bank maintained a ledger showing accounts of said M.Thulasiram and as per the said ledger an amount of

Rs.1,76,891/- was outstanding as on 30.9.2010.

It is the further case of the plaintiff bank that the provisions of Act IV of 1938 and Act 45 of 1987 have no application since the plaintiff bank is body corporate constituted under the Special Act of Parliament.

It is the further case of the plaintiff bank that interest is charged with applicable rate of interest as per R.B.I guidelines together penal interest at 2% p.a for the default committed by the borrower. Therefore, the plaintiff bank has filed the suit for recovery of the amount due. Hence, the suit.

3. Denying the allegations in the plaint, the first defendant filed written statement and the same was adopted by second defendant alleging as follows:

He submits that as per the averments in the plaint the father of first defendant has borrowed a sum of Rs.1,20,000/- on 17.2.2005 whereas acknowledgment of debt 3

OS.NO.14 of 2011

said to have been obtained by the plaintiff bank on 31.3.2008. This itself shows the acknowledgment of debt is not within three years, but beyond three years. Therefore, the suit is barred by limitation. No notice was served to the alleged original borrower nor to the legal representatives of the borrower at any point of time. Non issuance of notice discloses that the debt is not in existence.

He further submits that according to the plaintiff the debt alleged to have obtained by the father of plaintiff is agricultural debt. It has to be waived under the

Central Government Scheme introduced in the year 2007 with regard to Agricultural

Debt Waivers Scheme 2007. In the event of proving that debt is in existence as on the date of death of his father, his father is entitled to get the relief from Agricultural

Debt Waivers Scheme 2007. On the said ground also the plaintiff bank is not entitled to claim the suit debt.

He further submits that daughters of deceased Thulasiram were not impleaded as parties in the suit, therefore, the suit is bad for non joinder of necessary parties.

He further submits that the ledger account maintained by the plaintiff is 3 incorrect and wrong entries were made by the plaintiff with a view to have wrongful gain.

He further submits that the defendants are not liable to pay any amount to the plaintiff bank. Hence, he requests to dismiss the suit with costs.

4. The defendants 3 to 6 remained exparte.

4.Basing upon the strength of pleadings of respective parties, the following issues are framed:

1) Whether the suit documents are true, valid and binding on the defendants ?

2) Whether the suit is barred by law of limitation ?

3) Whether the suit debt is waived under 'Agriculturist Debt Waiver scheme 2007” ?

4) Whether the suit is bad for non-joinder of necessary parties ?

5) Whether the ledger account of plaintiff is correct ?

6) Whether the plaintiff is entitled to recover the suit amount as prayed for ?

7) To what relief ?

4

OS.NO.14 of 2011

5. On behalf of the plaintiff bank, the Manager of the plaintiff bank is examined as Pw1 and got marked Ex.A1 to A4. On behalf of the defendants, first defendant is examined as Dw1 and no documents are marked.

6. Heard both the counsels at length.

ISSUE No.1

Whether the suit documents are true, valid and binding on the

defendants ?

7. Though a plea has taken in the written statement by the defendants that the documents are not true no evidence is adduced to establish the same. The evidence of Pw1 coupled with documents filed under Ex.A1 and Ex.A2 discloses the signatures of late M.Thulasiram. Though the defendants have disputed the said signatures they did not seek to send the documents containing the signatures of late M.Thulasiram on

Ex.A1 and Ex.A2 to the Hand Writing Expert to ascertain the genuineness or otherwise of the signatures of late M.Thulasiram. Therefore, the contention of the defendants that the suit documents are fabricated cannot be accepted. Hence, this issue is 4decided in favour of plaintiff.

ISSUE NO.2

Whether the suit is barred by law of limitation ?

8. It is the contention of the learned counsel for the defendants that as per allegation of the plaintiff bank late M.Thulasiram had borrowed a sum of Rs.1,20,000/- on 17.2.2005 and alleged acknowledgment of debt by way of promissory note was taken on 31.3.2008, therefore, the suit is clearly barred by limitation, hence, the defendants are not liable to pay the suit amount.

9. He further contends that alleged promissory note under Ex.A2 is not an acknowledgment and it would not save limitation, hence, on this ground also the suit is barred by limitation.

10.Per contra, it is the contention of the learned counsel for the plaintiff bank that the loan borrowed by late M.Thulasiram is for agricultural purpose and it is a crop loan. The repayment of loan starts one year after the borrowal of crop loan i.e., in the year 2006. Late M.Thulasiram as well as defendants have failed to repay the loan.

Later M.Thulasiram during his life time had executed Ex.A2 promissory note way of 5

OS.NO.14 of 2011

acknowledgment of debt and it is valid and it saves limitation. Hence, the suit is not barred by limitation. To support his contention, he placed reliance in a decision reported in AIR 1978 Madras 385 Amirjan Saheb Vs. Syed Khader for the proposition that “collateral agreement executed on the same day as promissory note to postponement of the time for payment of amount, suit filed is within limitation from the date of promissory note”. He also relied upon a decision reported in 1988 (2)

ALT 831 Rayalaseema Grameena Bank, Kolimigundla village, Kurnool District

rep by its Branch Manager Vs. Bandela Yohan and others for the proposition that “ Limitation starts from installments due and the suit filed on 31.3.1983 for the recovery of the amount not barred by limitation”.

11. According to plaintiff, late M.Thulasiram had borrowed crop loan from the plaintiff bank on 17.2.2005 and plaintiff bank has obtained promissory note by way of acknowledgment of debt and the suit promissory note is marked as Ex.A2. The contention of the defendants is that debt acknowledgment by way of promissory note is not valid and suit is barred by limitation taking into consideration of actual alleged 5 date of borrowal ie., 7.2.2005. The said contention cannot be accepted because acknowledgment may be in any form. The promissory note obtained by the plaintiff bank under Ex.A2 can also be considered as acknowledgment of debt by late

M.Thulasiram. The decision relied upon by the learned counsel for the plaintiff though not directly applicable to the present case the analogy adopted by their Lordship is that 'limitation starts from the date of acknowledgment of debt or the date of installment for repayment of loan starts'. In the case on hand, the repayment has to be started from the year 2006, but late M.Thulasiram has not paid any amount thereafter the plaintiff bank has obtained acknowledgment of debt of crop loan by way of obtaining a promissory note on 31.3.2008 under Ex.A2. When the limitation starts from the year 2006 and promissory note is obtained well within three years from that year and the suit is well within limitation and it is not barred by limitation. Therefore, the claim of the defendants has no force. Hence, this issue is decided in favour of the plaintiff and against the defendants.

6

OS.NO.14 of 2011

ISSUE NO.3

Whether the suit debt is waived under 'Agriculturist Debt Waiver

Scheme 2007' ?

12. Though the defendant in para-14 of the written statement has pleaded that since the debt alleged by the plaintiff is agricultural debt it has to be waived under the

Central Government Scheme introduced with regard to Agriculture Debt Waiver

Scheme 2007, therefore, the defendants are not liable to pay the suit amount. To establish the said fact, no evidence is produced by the defendants. Further in the cross-examination of Pw1, the learned counsel did not suggest that the debt is waived as per Central Government Scheme for the waiver of debt in the year 2007. Mere pleading is not sufficient to prove that Waiver Scheme 2007 introduced by the Central

Government to the Agriculturist is applicable to the defendants, the defendants should produce evidence to that effect. The defendants did not summon any document relating to Agriculture Debt Waiver Scheme 2007. Further the defendants counsel did not suggest anything to Pw1 that the suit debt comes under Agriculture Debt Waiver

Scheme 2007 and there is no debt existing because of the waiver of the said loan. 6

Therefore, I am of the considered view that the debt has not covered under the

Agriculture Debt Waiver Scheme 2007 alleged to have enacted by the Central

Government. Hence, this issue decided accordingly.

ISSUE NO.4

Whether the suit is bad for non-joinder of necessary parties ?

13.Initially the plaintiff has filed the suit against Devendra Kumar and his wife and subsequently the daughters of late M.Thulasiram were also impleaded on record, therefore, all the legal representatives of late M.Thulasiram were impleaded in the suit.

Therefore, the question of non impleadment of necessary parties does not arise.

Hence, this issue is decided in favour of plaintiff and against the defendants.

ISSUE NO.5

Whether the ledger account of plaintiff is correct ?

14. As per the averment in para-4 of the plaint that due to non payment of crop loan the debt by M.Thulasiram it has become bad debt on 31.3.2008, therefore, interest calculation was not shown, hence, due amount is later correctly mentioned as 7

OS.NO.14 of 2011

on 31.3.2008 and both the calculations are enclosed. The ledger extract was filed under Ex.A4 it clearly shows the actual amount due to the plaintiff bank from the defendants. The defendants did not show how the said calculation is wrong. Mere bald allegation that the calculation is not correct is not suffice and defendants have to produce positive evidence to establish their plea. Therefore, the ledger extract filed towards amount due from the defendants cannot be termed as incorrect calculation.

Hence, this issue is decided against the defendants and in favour of plaintiff.

ISSUE NO.6

Whether the plaintiff is entitled to recover the suit amount as prayed

for ?

15. In view of the findings in issues 1 to 5, the plaintiff is entitled to recover the suit amount.

ISSUE NO.7

To what relief ?

16. In the result, the suit is decreed with costs for Rs.1,76,891/- with future interest at 6% p.a on a sum of Rs.1,20,000/- from the date of suit till the date of 7 realization from out of the estate of deceased M. Thulasiram lying in the hands of the defendants.

Dictated to the Personal Assistant, transcribed by him, corrected and pronounced

by me in open Court this the 5th day of January, 2016.

Sd/- V.Krishna Murthy

ADDL.SENIOR CIVIL JUDGE,

CHITTOOR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants;- PW-1: P.S.Arjuna Kumar, Branch Manager.-- None--

EXHIBITS MARKED

For Plaintiff: Ex.A-1: Dt.17.2.2005 Hypothecation agreement executed by M.Thulasiram. Ex.A-2: Dt.31.3.2008 Acknowledgment of debt in the form of Demand promissory note executed by M.Thulasiram. Ex.A-3: Office copy of notice dt.13.5.2010. Ex.A-4: Ledger Extract.

For Defendants:- NIL-

Sd/- V.Krishna Murthy

A.S.C.J.

C.T.R.

// True copy//

1OS.NO.298 of 2014

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE; CHITTOOR

Present :- Sri V.KRISHNA MURTHY, Addl. Senior Civil Judge, Chittoor.

Thursday, 31st (Thirty First) day of December, 2015

ORIGINAL SUIT No. 298 of 2014

Between: Smt A. Anjala. … Plaintiff

and

S.Nageswara Rao. … Defendant

This suit is coming on 30.12.2015 before me for final hearing in the presence of Sri V.Ramanarayana Reddy, Advocate for plaintiff; and of Sri D.Reddeppa Reddy, Advocate for the defendant, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

Suit is filed for recovery of Rs.4,38,290/- on the foot of a promissory note.

2. The facts set out in plaint in brief are as follows:-

It is the case of the plaintiff that on 21.6.2011 the defendant had borrowed a sum of Rs.2,55,000/- from the plaintiff and executed the suit promissory note agreeing to repay the same with interest at 24% p.a on the same day. Subsequently inspite of repeated demands, the defendant did not choose to pay the amount due under the promissory note.

It is the further case of the plaintiff that inspite of demands made by her on 21.3.2012 the defendant voluntarily issued a cheque bearing

No.615531 drawn on Allahabad Bank, Chittoor Branch in favour of plaintiff for a sum of Rs.3,00,000/- towards the above said promissory note amount.

Later the plaintiff presented the said cheque in her bank namely Karur Vysya

Bank, Chittoor branch wherein the plaintiff is having S.B.Account. But the bank returned the above said cheque on 22.3.2012 with a memorandum giving the reason for return of cheque as 'insufficient funds' in the account of the defendant. The plaintiff has received the said information from banker on 27.3.2012. Subsequently the plaintiff personally approached the defendant and intimated about the dishonour of cheque and requested to pay the cheque amount to the plaintiff, but there is no proper response.

2OS.NO.298 of 2014

It is the further case of the plaintiff that she also filed complaint against the defendant U/s 138 of Negotiable Instruments Act on the file of Special

Excise Court, Chittoor in C.C.No.32 of 2013 on basis of dishonour of cheque and the same is pending.

It is the further case of the plaintiff that subsequently she got issued a legal notice to the defendant on 27.7.2013 calling upon him to repay the above said promissory note debt together with interest to the plaintiff.

Though the defendant acknowledged the said legal notice he did not choose to pay the amount.

It is the further case of plaintiff that since the defendant is Government

Employee he is not entitled for the benefits of Act IV of 1938 or Act 45 of 87 or

Act. 2 of 1990. Hence, the suit.

3. Denying the allegations in the plaint, the defendant filed written statement alleging as follows:-

He submits that plaintiff filed the suit with all imaginary thoughts. He never demanded any amount from the plaintiff nor issued a cheque or promissory note at any point of time. About three years back the plaintiff's husband S.Arumugham conducted unregistered chits and he is one of the subscribers of the chit of Rs.2,00,000/-. The said chit was conducted in the year 2010 and he became the highest bidder in the month of August, 2010.

The plaintiff's husband has obtained his signatures in a blank promissory note and blank cheque for the purpose of security of future installments for the said unregistered chits. To avoid court fee the plaintiff fabricated the blank cheque for Rs.3,00,000/- and filed a false case in C.C.No.32 of 2013 u/s 138 of

Negotiable Instruments Act and the same is pending.

He further submits that with fear of acquittal of case in CC.No.32 of 2013 the plaintiff again fabricated the suit promissory note for Rs.2,50,000/- and filed the present false suit. The suit promissory note is a forged one and no consideration was passed thereunder. Hence, he requests to dismiss the suit with costs.

4. Basing upon the strength of pleadings of respective parties, the following issues are framed for trial:- 3OS.NO.298 of 2014

1) Whether the suit promissory note is true, valid and supported by consideration ?

2) Whether the plaintiff is entitled to the suit amount ?

3) To what relief?

5. On behalf of the plaintiff, Pw1 and Pw2 are examined and Ex.A1 and

Ex.A2 are marked. On behalf of the defendant, Dw1 and Dw2 are examined and no documents are marked.

6. Heard both the counsels at length.

ISSUE No.1

Whether the suit promissory note is true, valid and supported by

consideration ?

7. It is the contention of the learned counsel for the plaintiff that on 21.6.2011 the defendant had borrowed a sum of 2,55,000/- from the plaintiff and executed the suit promissory note under Ex.A1 and subsequently inspite of written and oral demands the defendant did not choose to repay the amount.

8. The learned counsel further contends that the defendant has also issued a cheque for Rs.3,00,000/- and the said cheque was dishonoured, therefore, the plaintiff has filed a criminal case against the defendant u/s 138 of Negotiable Instruments Act and the same is pending.

9. The learned counsel further contends that the evidence of Pw1 and

Pw2 supported by Ex.A1 and Ex.A2 clinchingly establish the case of the plaintiff and the learned counsel for the defendant did not elicit anything to improbablize the case of the plaintiff. Therefore, the suit has to be decreed as prayed for.

10. Per contra, it is the contention of the learned counsel for the defendant that he did not borrow any amount from the plaintiff under Ex.A1 nor issued a cheque as alleged by the plaintiff. The cheque bounce case was filed by the plaintiff in CC.No.32 of 2013 on the file of Special Judicial

Magistrate of Excise Court, Chittoor and ended in acquittal and this itself

shows the falsity claim of the defendant.

11. The learned counsel further contends that plaintiff's husband has been conducting unregistered chits and the defendant has subscribed to a chit 4OS.NO.298 of 2014 for a sum of Rs.2,00,000/- in the year 2010 and in the month of August, 2011 he has become the prized winner of the chit and in that connection the plaintiff's husband has obtained the defendant's signature in an empty promissory note and empty cheque towards security for future installments of chit amount. As the criminal case filed by the plaintiff u/s 138 of Negotiable

Instruments Act against the defendant herein has ended in acquittal the plaintiff has fabricated the signed empty promissory note as Ex.A1 and filed this suit to have wrongful gain. The defendant has paid all the installments due to the plaintiff's husband under chit. The plaintiff has no capacity to lend amount and she is only a house wife.

12. The learned counsel further contends that the plaintiff did not produce any evidence to show that he has been running fancy shop business in her house. No document is filed to establish the said fact, therefore, it can be safely concluded that plaintiff has no fancy shop in her house.

13. The learned counsel further contends that the plaintiff has no capacity to lend the amount, hence, he requests to dismiss the suit with costs.

14. In order to prove the case of the plaintiff, she examined herself as

Pw1 and attestor of Ex.A1 as Pw2. The plaintiff got marked the suit promissory note dt.21.6.2011 executed by defendant for Rs.2,55,000/- as

Ex.A1 and Ex.A2 is the office copy of legal notice dt.27.7.2013 issued to the defendant. Pw1 in her affidavit of chief-examination had reiterated her pleadings in the plaint. During cross-examination she stated that she lent money to the defendant in her house at 7.00 or 7.30 am. Abdul Kalam and

Ananda Babu are the attestors and defendant signed promissory note in

English language. She denied the suggestion that after issuance of legal notice to the defendant he came to her and she assured that no action will be taken. She denied the suggestion that she has no capacity to lend amount.

She stated that she does not remember the date of filing of the criminal case against the defendant u/s 138 of Negotiable Instruments Act.

15. Pw2 is the attestor and he supported the evidence of Pw1 in all material facts. During cross-examination he stated that except the suit promissory note he did not sign on any promissory note. Ex.A1 executed in 5OS.NO.298 of 2014 the house of plaintiff at 7.00 am. He got acquaintance with Anand Babu since two or three years and he is resident of Gandhi Road. One Gopi is the scribe of Ex.A1. The defendant signed first later himself, Ananda Babu and Gopi signed. He denied the suggestion that himself, plaintiff and scribe colluding together fabricated Ex.A1.

16.To rebut the evidence of Pw1 and Pw2, the defendant examined himself as Dw1 and in his affidavit of chief-examination he has reiterated his pleadings in the written statement. But during cross-examination he admitted that signature in Ex.A1 belong to him. He has received xerox copy of promissory note after filing of the suit by the plaintiff. He had no documentary proof about running chits by Arumugham. The plaintiff issued legal notice prior to filing of the suit against him, he did not send reply notice to the said notice. He admitted that plaintiff has filed a cheque bounce case and the same was acquitted. He further admitted that the said case was dismissed on technical grounds.

17. Dw2 is the friend of Dw1. In his affidavit of chief-examination he has supported the evidence of Dw1. During cross-examination, he stated that the suit promissory note is executed for Rs.2,00,000/- and he saw Ex.A1 in the year 2011. The signature on the revenue stamp relate to the defendant.

He further stated that the defendant is not in the habit of issuing false promissory note and cheque. The said cheque is issued for Rs.2,00,000/- and on the instructions of advocate his chief affidavit was prepared and he does not remember the contents of his chief affidavit.

18. The plea of the plaintiff is that the defendant borrowed

Rs.2,55,000/- on 21.6.2011 and executed the suit promissory note under

Ex.A1 and subsequently inspite of repeated demands the defendant did not choose to repay the amount. Whereas the claim of the defendant is that plaintiff's husband obtained his signatures in empty promissory note towards security for future installments of unregistered chit amount and in fact he has not received any consideration under Ex.A1.

19. Pw1 and Pw2 categorically stated about the payment of

Rs.2,55,000/- to the defendant in the house of plaintiff at 7.00 or 7.30 am on 6OS.NO.298 of 2014 21.6.2011 and the defendant executed the suit promissory note in the presence of attestors and scribe. Both of them denied that the suit promissory note is fabricated with the collusion of attestor, scribe and plaintiff's husband. The plea of the defendant is that plaintiff has no capacity to lend amount and she is house-wife, but Pw1 during cross-examination stated that she has been running fancy shop in her house and the said fancy shop has no name. Whether the plaintiff has got fancy shop or not cannot be decided as no document is filed to that effect. The defendant admits his signature in Ex.A1 but he contends that he signed in empty promissory note towards security for payment of future installments of unregistered chits.

Admittedly the defendant has not produced any ioata of evidence that the husband of plaintiff has been running unregistered chits. Naturally when there is a chit the person who runs the chit will issue a pass book for the evidence of payment of installments. In the case on hand, the defendant has not filed any document. Except the oral testimony of Dw1 and Dw2 no other evidence is produced to establish that plaintiff has been running unregistered chits. The oral evidence of Dw1 without documentary evidence cannot be accepted. Dw2 has no knowledge about the suit transaction. According to him, the suit promissory note is executed for Rs.2,00,000/- he saw Ex.A1 in the year 2011. His evidence supports the plaintiff with regard to execution of

Ex.A1 even though amount mentioned in the promissory note is not correct.

He also admitted that the defendant is not in the habit of issuing false promissory note and cheque. His evidence is not helpful to the defendant and on the other hand supports the case of the plaintiff to the extent about execution of promissory note.

20. Unless the defendant produced positive evidence to establish the fabrication of Ex.A1 he cannot claim dismissal of the suit. On the other hand, the evidence of Pw1 and Pw2 supported by Ex.A1 and Ex.A2 clinchingly establish the case of the plaintiff. Therefore, it can be safely concluded that the suit promissory note is true and valid document supported by consideration.

7OS.NO.298 of 2014

ISSUE No.2

Whether the plaintiff is entitled to the suit amount ?

21. In view of the finding in issue No.1, the plaintiff is entitled to recover the suit amount as prayed for.

ISSUE NO.3

To What relief ?

22. In the result, the suit is decreed with costs for Rs.4,38,290/- with future interest at 12% p.a., on a sum of Rs.2,55,000/- from the date of suit till the date of decree and subsequently at 6% p.a, till the date of realization.

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

pronounced by me in open Court this the 31st day of December, 2015.

Sd/- V.Krishna Murthy

ADDL.SENIOR CIVIL JUDGE,

CHITTOOR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:- PW-1: Smt A.Anjala. Dw1. S.Nageswara Rao PW-2: S.Abdul Kalam.Dw2: K.Krishnaiah.

EXHIBITS MARKED

For Plaintiff: Ex.A-1 : Promissory note dt.21.6.2011. Ex.A-2 : Office copy of legal notice dt.27.7.2013.

For Defendant:- NIL-

Sd/- V.Krishna Murthy

A.S.C.J. C.T.R.

// True copy//

1 S.C.NO. 271 OF 2015

IN THE COURT OF THE ADDL. ASSISTANT SESSIONS JUDGE CHITTOOR.

Present: Sri V.Krishna Murthy

Additional Assistant Sessions Judge. Chittoor.

Wednesday, the Third (3rd) day of February, 2016

S.C.No. 271 of 2015

Between: The state rep.by, Sub Inspector of police, Chittoor I Town Police Station. … Complainant and:

1. Hakeem Ghouse aged 30 years, s/o late H. Allabaksh, D.No.23-202, Sanjayagandhi Nagar, Chittoor.

2. Ghouse Peer, aged 30 years, son of late M.Allabaksh, Sanjaygandhi Nagar, Chittoor.

3. Mohammed, Sanjaygandhi Nagar, Chittoor (deleted)

4. D.Dhananjay, aged 28 years, son of Subramanyam, D.No.23-237, Sanjaygandhi Nagar, Chittoor. … Accused

This case coming on 01.2.2016 before me for final hearing in the presence of Sri Rosedar, Incharge Additional Public Prosecutor for the complainant and of Sri V.Murugan, Advocate for the accused; and having stood over for consideration till today, this court delivered the following:-

J U D G E M E N T

The Sub-Inspector of police, Chittoor I Town Police station laid charge sheet against the accused in Crime No.47 of 2015 of Chittoor I Town PS for the offence u/s 307, 109 r/w 34 IPC alleging as follows.

2. Lw3 N. Jayasankar @ Sankar (Lw3) is living by doing welding work at

Maduravayil, Chennai. Prior to one-and-half years back the said N.Jayasankar @

Sankar got acquaintance with one Bhaskar of Chennai who offered gold coins at lowest price in Bangalore. Later the said N.Jayasankar @ Sankar informed the same to A4. Then A4 expressed his willingness to buy gold coins and asked Jayasankar to arrange for gold coins. Subsequently the said Jayasankar introduced one Bhaskar to

A4 and went to Bangalore. There the said Bhaskar introduced one unknown person to Yuvaraj and A4 as coins merchants. A4 purchased one gold coin from the unknown person for Rs.3,000/- and returned to Chittoor. Then A4 scrutinized the gold coin and confirmed it to be genuine. Hence, A4 accompanied by Jayasankar again visited Bangalore, met aforesaid unknown person and purchased 10 gold coins for Rs.30,000/-. Lateron A4 again called Jayasankar for purchasing gold coins, but

Jayasankar did not accompany him due to personal work. Hence, A4 alone went to

2 S.C.NO. 271 OF 2015

Bangalore met the aforesaid unknown person and gave Rs.3,00,000/- for gold coins.

But the unknown person cheated A4 and escaped with money. Since then A4 has been insisting Jayasankar to pay the above money of Rs.3,00,000/- on the pretext that Jayasankar introduced unknown person. Even though Jayasankar has no connection with the cheating of the unknown person he tried his level best to contact the unknown person but he failed.

It is the further case that on 28.4.2015 Jayasankar came to Chittoor on the occasion of Ganga Jathara. On the same day at about 7.00 pm, A4 took Jayasankar to RTC bus stand and beat him with the assistance of A1 and A2 by demanding money. Further A4 warned Jayasankar that they will do away with his life in case if

Jayasankar failed to pay money. On that the said Jayasankar requested A4 to settle the matter through mediation in the presence of elders and the same was accepted by A4 and a mediation was arranged in the house of Jayasankar. On the same day at 11.30 pm M.R.,Yuvaraj (Pw1), M.Radhakrishna (Pw2), N. Jayasankar, M.R.Mouni

Kumar, A1, A2, A4 and Mohan father of Jayasankar and Subramanyam father of A4 were gathered there in the house of Jayasankar. Since the mediation was going on against the interest of A4, he felt unsecured about the return of his money hence he instructed A1 and A2 to kill Jayasankar and his followers. On the instigation of A4, A1 and A2 who were armed with knives attempted to do away with the life of

Jayasankar. On noticing the same M.R.Yuvaraj (Pw1) and M.Radhakrishna (Pw2) resisted the accused with the intention to rescue Jayasankar. On that A1 stabbed

Yuvaraj twice on left side of stomach and A2 stabbed Radhakrishna on right side of stomach, as a result both of them sustained bleeding injuries. On noticing the same

S.Praveen (Lw6), S.Deepak (Lw7) and B.Ravi (Lw8) rushed to the spot and shifted the injured persons to Government Hospital, Chittoor for treatment.

Basing on the evidence of eye witnesses and injured person Radhakrishna (Lw2) police came to conclusion that A3 has not involved in the offence. A3 is the eldest son's brother of A1 and A2, and complainant with an assumption that A3 also might have participated in the offence named in the FIR, but during investigation no evidence is found against A3. Hence, his name is deleted.

On the intimation received from the Hospital, the Sub Inspector of Police I

3 S.C.NO. 271 OF 2015

Town Police station went to the hospital and recorded the complaint statement of Pw1 and registered the same as case in Crime No.47 of 2015 and investigated into.

During course of investigation he visited the scene of offence and prepared rough sketch. He examined the injured as well as eye witnesses and recorded their statements. On 4.5.2015 at 9.00 am the Sub Inspector of Police has arrested A1 and

A2 and recorded their confessional statement in the presence of M.Ashok Kumaar (Lw9) and M.Sasi Kumar (Lw10). He also seized crime weapon under a cover of seizure mahazar on 4.5.2015 at 9.15 am duly attested by mediators.

On 09.5.2015 at 11.15 am Sub-Inspector of Police arrested A4 and produced him before the court for remand. On 16.5.2015 The Sub-Inspector of Police received wound certificate of injured from District Head Quarters Hospital, Chittoor. Later he filed charge sheet against the accused for the offence u/s 307 and 109 r/w 34 IPC against .

3. After filing of charge sheet before the learned IV Additional Judicial

Magistrate of 1st Class, Chittoor, it was taken on file for the offences u/ss 307 and

109 r/w 34 IPC against the accused and registered as PRC.No.42 of 2015.

4. After appearance of accused before the learned IV Additional Judicial

Magistrate of 1st Class, Chittoor copies of documents submitted by the police were

furnished to them and case was committed to Hon’ble Sessions Court u/s 209 Cr.P.C and the said case registered as SC.No.271/2015 and made over to this court for trial according to law.

5. After appearance of the A1, A2 and A4 before this court they were asked whether they have means to engage counsel and they informed the court that they have got means to engage counsel. After hearing the learned Additional Public

Prosecutor and learned counsel for accused and on perusing the material available on record, charge u/s 307 r/w 34 IPC against A1, A2 and A4, and charge u/s 109 IPC against A4 were framed, read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried. Then, the matter was posted for trial.

6. In order to prove the guilt of the accused, prosecution has cited as many as twelve (12) witnesses, but examined only complainant and his father (who are injured) as Pw1 and Pw2 and got marked Ex.P1 to Ex.P3. The learned Additional

4 S.C.NO. 271 OF 2015

Public Prosecutor has given up the evidence of Lw3 N. Jayasankar @ Sankar, Lw4

M.R.Mouni Kumar, Lw5 N.Chinna, Lw6-S.Praveen, Lw7- S.Deepak, Lw8-B.Ravi, Lw9-

M.Ashok Kumar, Lw10-M.Sasi Kumar, Lw11-Dr. K.Venugopalachari, Lw12-

S.Thejomoorthy as the material witnesses turned hostile and did not support the prosecution case.

7. After closure of the prosecution evidence, examination of accused u/sec. 313

Cr.P.C is dispensed with as there is no incriminating material appeared against them in the evidence of prosecution witnesses. Then the matter is posted for arguments.

8. Now the point for determination is :

Whether the prosecution has proved the guilt of A1, A2 and A4 for the

offence u/s 307 r/w 34 IPC and A4 for the offence u/s 109 IPC beyond all

reasonable doubt ?

9. Heard the learned Additional Public Prosecutor and learned counsel for accused.

POINT

10. The learned Additional Public Prosecutor has fairly conceded that Pw1 who is complainant and Pw2 who is father of Pw1 did not support the prosecution case.

Therefore, the evidence of other witnesses were given up and prosecution could not establish the case against the accused. The complainant was examined as Pw1 and his father as Pw2. In their evidence they stated that they know A1, A2 and A4 who are their neighbours and the incident occurred in the earlier hours on 29.4.2015 at 1.00 am. A1 and A3 approached Pw2 and requested him to conduct mediation with regard to some dispute with one Jaysankar of their village. At the time of said mediation about fifty villagers gathered. During negotiations A1 opposed the proposal given by Pw2 to pacify the situation. Thereafter at about 2.00 am all of a sudden there was a galata among Jayasankar and his against group and when they tried to pacify the situation, himself and his father were stabbed by unknown persons and they sustained injuries. His father suspected A1, A2, and A4 as they opposed the proposal given by him during negotiations and on suspicion they gave report against the accused. After discharge from the hospital they made enquiries and came to know that accused are not responsible for the injuries caused to them. Ex.P1 is the signature in the report. Police recorded his complaint statement while he was in

5 S.C.NO. 271 OF 2015

hospital and he does not know the contents in the complaint/statement.

11. The learned Additional Public Prosecutor has requested the court to treat the witness as hostile and permission is accordingly granted. During cross- examination of Additional Public Prosecutor Pw1 stated that he did not state before the police as in Ex.P2 and N.Chinna, S.Praveen, and S.Deepak acted as mediators after the incident. They have pacified the matter to establish peace in their village and his father obeyed the advise of elders, therefore, a compromise is affected with the accused.

11. Pw2 also stated in the same way and he denied about giving the statement to police under Ex.P3.

12. As seen from the above, it is clear that Pw1 and Pw2 who are injured in this case have compromised the case with the accused in view of the intervention of elders to maintain peace in the village. The evidence of Pw1 and Pw2 does not support the prosecution case and hence charges against the accused could not be proved.

13. Since there is no incriminating material against the accused and prosecution has failed to establish the guilt of the accused beyond all reasonable doubt accused are entitled for acquittal.

14. In the result, I find A1, A2, and A4 not guilty for the offence u/s 307 r/w 34

IPC and A4 not guilty for the offence u/s 109 IPC and they are acquitted u/s 232

Cr.P.C. The bail bonds of A1, A2 and A4 shall be in force for six months. The unmarked case property i.e., blood stained clothes and knife shall be destroyed after expiry of appeal time.

Dictated to the Personal Assistant, transcribed by him, corrected by me and

pronounced in Open Court, this the 3rd day of February, 2016.

Sd/ V.Krishna Murthy

ADDL. ASST. SESSIONS JUDGE

CHITTOOR.

Appendix of Evidence--Witnesses Examined:

For ProsecutionFor Defence P.w.1: M.R.Yuvaraj. P.w.2. M.Radhakrishna. None

6 S.C.NO. 271 OF 2015

EXHIBITSMARKED

FOR PROSECUTION

Ex.P.1 :- Signature of Pw1 in the complaint/statement. Ex.P.2 :- 161 Cr.P.C statement of Pw1 Ex.P.3 :- 161 Cr.P.C statement of Pw2.

FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED:- NIL

sd/- V.Krishna Murthy

A.A.S.J. CTR.

// TRUE COPY//

7 S.C.NO. 271 OF 2015

IN THE COURT OF THE ADDL. ASSISTANT SESSIONS JUDGE, CHITTOOR

Present: Sri V. Krishna Murthy,

Additional Assistant Sessions Judge

Wednesday, the3rd (third) day of February, 2016 S.C.No. 271 of 2015 PRC.NO.42 OF 2015 OF IV A.J.M.F.C Chittoor

Date of offence: 28.4.2015 Date of complaint: 29.4.2015 Date of apprehension of accused: 09.5.2015 Date of taken on file: 01.6.2016 Date of commencement of trial: 01.2.2016. Date of close of trial: 01.2.2016 Date of sentence or order: 03.2.2016 Complainant: Sub Inspector of Police, Chittoor I Town PS Crime No.47 of 2015

Name of the accusedFather/Age Husband Name

1. Hakeem Ghouse aged 30 years, s/o late H. Allabaksh, D.No.23-202, Sanjayagandhi Nagar, Chittoor.

2. Ghouse Peer, aged 30 years, son of late M.Allabaksh, Sanjaygandhi Nagar, Chittoor.

3. Mohammed, Sanjaygandhi Nagar, Chittoor (deleted)

4. D.Dhananjay, aged 28 years, son of Subramanyam, D.No.23-237, Sanjaygandhi Nagar, Chittoor. Village and MandalReligionCalling

1. H/o Mahalrajapalle. K.V.Palle Mandal.(A1)A1 and A2 are HindusA1 business

2. Gyarampalle Kaspa,K.V.Palle Mandal. (A2)A4 Muslim.A2 and A4 are

3. Kalakada (V) & Mandal, Chittoor District (A4)drivers.

Offences charged: U/s 307 r/w 34 IPC and 109 IPC

Plea of the accused: Accused pleaded not guilty.

Finding of the Court: A!,A2, and A4 are found not guilty for the offences u/ss 307 r/w 34 & 109 IPC.

Sentence of Order:

In the result, I find A1, A2, and A4 not guilty for the offence u/s 307 r/w 34 IPC and A4 not guilty for the offence u/s 109 IPC and they are acquitted u/s 232 Cr.P.C. The bail bonds of A1, A2 and A4 shall be in force for six months. The unmarked case property i.e., blood stained clothes and knife shall be destroyed after expiry of appeal time.

Sd/- V.Krishna Murthy

ADDL. ASSISTANT SESSIONS JUDGE,

CHITTOOR

// True copy//

8 S.C.NO. 271 OF 2015

1O.S.NO.242 OF 2013

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE :: CHITTOOR

Present :- Sri V.KRISHNA MURTHY

Additional Senior Civil Judge,

Thursday, the 7th (Seventh) day of January, 2016

ORIGINAL SUIT No.242 of 2013

Between: A.Radha Devi. … Plaintiff

and

1.K.Devi, 2.Minor K.Dhanush Minor 2nd defendant rep. by their mother Natural guardian K.Devi.… Defendants.

This suit is coming on this day before me for final hearing in the presence of Sri. R.Vasudeva Reddy, Advocate for plaintiff and of Sri Kanipakam Suresh. Advocate for defendant No.1, and the defendant No.2 remained exparte, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

Suit is filed for recovery of Rs.4,76,200/- on the foot of a promissory note from out of the estate of deceased K.Mohan lying in the hands of defendants.

2. The facts set out in plaint in brief are as follows:

It is the case of the plaintiff that one K.Mohan who is husband of first defendant and father of second defendant herein had borrowed a sum of Rs.3,00,000/- from the plaintiff on 10.11.2010 for his family necessities and business purpose and executed the suit promissory note agreeing to repay the same with interest at 24% p.a.

It is the further case of the plaintiff that subsequently inspite of oral demands made by the plaintiff the said K.Mohan has issued a cheque bearing No.0278449 of

Axis Ban Ltd., Chittoor Branch in favour of plaintiff for a sum of Rs.1,00,000/- on 10.11.2010 assuring the plaintiff that the said K.Mohan has got sufficient funds with his bank and to present the cheque to collect the amount as part amount due under the suit promissory note.

It is the further case of the plaintiff that on the very next day on 11.11.2012 the said K.Mohan requested the plaintiff not to present the said cheque for collection and the same has to be presented on or before 20.1.2013 for collection. Accordingly, the plaintiff did not present the cheque dt.10.11.2012 issued by Mohan to his banker. In the meanwhile K.Mohan died on 16.1.2013 intestate leaving behind the defendants 2O.S.NO.242 OF 2013 who are his legal heirs to succeed his estate.

It is the further case of the plaintiff that on 08.4.2013 the plaintiff got issued legal notice to the defendants 1 and 2 calling upon them to pay the amount due under the promissory note. The defendants 1 and 2 received the notice and kept quiet.

It is the further case of the plaintiff that the deceased Mohan borrowed amount for his business purpose and family necessities, therefore, the benefits under Debt

Relief Act not applicable. Hence, the suit.

3. Denying the allegations in the plaint, the first defendant filed written statement alleging as follows:

She submits that K.Mohan is addicted to vices like drinking, gambling, etc., since ten years prior to his death and first defendant is maintaining his family by doing agricultural coolie work. She has no knowledge about the debt due by K.Mohan. After the death of K.Mohan, the plaintiff filed the present suit to have wrongful gain with false allegations. There is no cause of action to file this suit and the debt claimed by the plaintiff is not legally enforceable. Hence, she request to dismiss the suit with costs.

4. Second defendant remained exparte.

5. Basing upon the strength of pleadings of respective parties, the following issues are framed:

1) Whether the suit promissory note is true, valid and supported by consideration ?

2) Whether the plaintiff is entitled to recover the suit amount ?

3) To what relief?

6. On behalf of the plaintiff, the plaintiff is examined as Pw1 and attestor of promissory note is examined as Pw2 and got marked Ex.A1 to Ex.A4. On behalf of the defendants, no evidence is adduced and no documents are marked.

7. Heard both the counsels.

ISSUE No.1

Whether the suit promissory note is true, valid and supported by

consideration ?

8. It is the contention of the learned counsel for the plaintiff that one K.Mohan 3O.S.NO.242 OF 2013 who is husband of first defendant and father of second defendant had borrowed a sum of Rs.3,00,000/- from him on 10.11.2012 and executed the suit promissory note

Ex.A1 in favour of plaintiff. Subsequently inspite of repeated demands the said

K.Mohan has not paid any amount but issued a cheque under Ex.A3 for Rs.1,00,000/- to encash the same towards part payment of the amount due under the promissory note and on the very next day the said K.Mohan asked the plaintiff not to present the cheque till 20.1.2013 and therefore the plaintiff has not presented the same and in the meanwhile on 6.1.2013 the said K.Mohan died intestate leaving behind the defendants as his legal heirs to succeed his estate.

9. The learned counsel for the plaintiff further contends that the plaintiff got issued a legal notice to the defendants under Ex.A2 and the same were received by them neither gave reply nor complied the same.

10. The learned counsel for the plaintiff further contends that the evidence of

Pw1 and Pw2 supported by Ex.A1 to Ex.A3 clinchingly establish the case of the plaintiff. The defendants have not produced any evidence nor elicited anything to disprove the case of the plaintiff. Hence, the plaintiff is entitled for a decree as prayed for.

11. Per contra, it is the contention of the learned counsel for the defendants that deceased K.Mohan had not borrowed money from the plaintiff nor executed the suit promissory note. The deceased Mohan is addicted to vices like gambling, drinking since ten years prior to his death. The first defendant is maintaining her family by doing cooile work.

12. The learned counsel further contends that the suit is filed by the plaintiff who is their family friend to have wrongful gain. Hence, the suit has to be dismissed with costs.

13. To prove the case of the plaintiff, the plaintiff himself is examined as Pw1 and attestor as Pw2. Both of them have categorically stated about the borrowal of amount by deceased K.Mohan and execution of suit promissory note. The learned counsel for the defendants did not elicit anything to improbablize the case of the plaintiff even Pw2 was not cross-examined by the learned counsel for the defendants 4O.S.NO.242 OF 2013 and the evidence of Pw1 and Pw2 is cogent and consistent and support the case of the plaintiff.

14. To rebut the evidence of plaintiff, the defendants have not produced oral or documentary evidence. In the absence of evidence the allegation in the written statement remained unproved.

15. In view of the aforesaid discussion, I am of the opinion that the suit document is true, valid and supported by consideration. Hence, this issue is decided in favour of the plaintiff and against the defendants.

ISSUE NO.2

Whether the plaintiff is entitled to recover the suit amount ?

16. Inview of the findings in issue No.1. the plaintiff is entitled to recover the suit amount as prayed for from out of the estate of deceased K.Mohan lying in the hands of defendants.

ISSUE NO.3

To what relief?

17. In the result, suit is decreed with costs for Rs.4,76,200/- with subsequent interest at 12% p.a on a sum of Rs.3,00,000/- from the date of suit till the date of decree and thereafter at 6% p.a till the date of realization from out of the estate of deceased K.Mohan lying in the hands of the defendants.

Dictated to the Personal Assistant, transcribed by him, corrected and pronounced

by me in open Court this the 7th day of January, 2016.

Sd/- V.Krishna Murthy

ADDL.SENIOR CIVIL JUDGE,

CHITTOOR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants;- PW-1: Smt A.Radha Devi. - NONE- PW-2: Sri M. Nagi Reddy.

EXHIBITS MARKED

For Plaintiff: Ex.A-1: Promissory note dt.10.11.2010. Ex.A-2: Office copy of legal notice dt.8.4.2013 with postal receipt. Ex.A-3: Original cheque dt.10.11.2012.

For Defendants:- NIL-

Sd/- V.Krishna Murthy

A.S.C.J. //True copy// C.T.R.