Sri Y Sathyendra

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IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS JUDGE FOR THE

TRIAL OF COMMUNAL OFFENCES-CUM-VII ADDL METROPOLITAN SESSIONS

JUDGE: HYDERABAD

Dated this the 22nd day of October, 2019

Present: Y.Sathyendra

VII ADDL METROPOLITAN SESSIONS JUDGE

HYDERABAD

Sessions Case No.28 of 2014

(P.R.C No.43 of 2013 on the file of the III Addl.Chief Metropolitan Magistrate, Hyderabad) Committed by Sri P.Vasanth III Addl.Chief Metropolitan Magistrate, Hyderabad. Cr. No.& P.S.Crime No.47 of 2013 of PS S.R.Nagar, Hyderabad. 1.Description of the AccusedA1.Palakura Durga Prasad @ Tatineni Durga Prasad @ Prasad @ Banda Prasad, S/o.Tatineni Venkateshwar Rao (adopted father P.Suresh Goud), Age: 29 yrs, Occ: Finance Business, Rl/o.H.No.2-2-1075/20/E, Bathukamma Kunta, Bagh Amberpet, Hyderabad and H.No.2-2- 127/6/C, Vijaypuri Colony, Uppal, Hyderabad, N/o.Chandur (V), Nalgonda Dist. A2.Podusari Manoj Kumar @ Mano, S/o.P.Madhavan, Age: 40 yrs, Occ: Finance Business, R/o.Flat No.G-6, MK Residency, Plot No.123, H.No.8-43/23/3/1, Srinivasnagar Colony, Boduppal, Hyderabad & H.No.12-13-852/C, Sri Sai Santoshi Colony, Gokul Nagar, Tarnaka, Hyderabad, N/o.Kamal Niwas, Pattathiri Pureda, Vellankinar Ward, Alleppi, Kerala and Battiprolu (V), Repally (M), Guntur Dist. A3.Kantamneni Satish, S/o.K.Venu, Age: 24 yrs, Occ: Finance Business, R/o.Flat No.302, Vamsi Towers Apartments, Beside India Oil Petrol Pump, Madhuranagar, Hyderabad, N/o.Vanukuru (V), Penamaluru (M), Krishna Dist & Prasadampadu of Vijayawada, Krishna Dist. A4.Doppalapudi Surendra Chowdary @ Balaram, S/o.D.Subba Rao, Age: 31 yrs, Occ: Unemployee, R/o.Moosapet, Hyderabad, N/o.near Ramalayam, Adusumalli (V), Parchur (M), Prakasam Dist. A5.Doppalapudi Prasanna, S/o.D.Satyanarayana,

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Age: 34 yrs, Occ: Unemployee, R/o.Moosapet, Hyderabad, N/o.near Canal, Adusumalli (V), Parchur (M), Prakasam Dist. A6.Shaik Sameer @ Abbas, S/o.Sk.Mohd.Ghouse, Age: 31 yrs, Occ: Car Driver, R/o.H.No.8-3- 20/A/2730, SK Nagar, Rahmatnagar, Hyderabad, N/o.Kothapet, Kanigiri, Prakasam Dist. A7.Tatineni Prasad @ Pasi, S/o.Tatineni Narasimha Rao, Age: 30 yrs, Occ: Driver, R/o.Flat No.302, Vamsi Towers Apartments, Beside India Oil Petrol Pump, Madhuranagar, Hyderabad, N/o.near Mango Market, Kedarpet of Vijayawada, Krishna Dist. A8.Kantamneni Madhavi, D/o.K.Venu, Age: 23 yrs, Occ: Business, R/o.Flat No.302, Vamsi Towers Apartments, beside India Oil Petrol Pump, Madhuranagar, Hyderabad, N/o.Venukuru (V), Penamaluru (M), Krishna Dist & Prasadampadu of Vijayawada, Krishna Dist. (Case against A8 abated on 19-11-2018). A9.Pudusari Laxmi Prasanna, W/o.P.Manoj Kumar (D/o.Karra Ram Murthy), Age: 35 yrs, Occ: Business, R/o.Flat No.G-6, MK Residency, Plot No.123, H.No.8-43/23/3/1, Srinivasanagar Colony, Boduppal, Hyderabad, & H.No.12-13-852/C, Sri Sai Santoshi Colony, Gokul Nagar, Tarnaka, Hyderabad, N/o.Bhattiprolu (V), Repally (M), Guntur Dist. 2.ChargesU/Secs.302, 120 (b), 201 r/w 34 of IPC. 3.Plea of the accused Not guilty 4.Finding of the JudgeNot guilty

5. Sentence or order 6.Prosecution conducted bySmt. P. Shailaja Additional Public Prosecutor, Grade-I 7.The Accused defended bySri Muzafarullah Khan, Adv., for A1, A3, A7, A8. Sri D.Raji Reddy, Adv., for A2, A4, A5, A6 and A9.

This case was coming before me in the presence of Smt. P. Shailaja, Additional Public Prosecutor, Grade-I for the State and Sri Muzafarullah Khan, Adv., for A1, A3, A7, A8 and Sri D.Raji Reddy, Adv., for A2, A4, A5, A6 and A9 having stood over for consideration, this Court delivered the following:

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J U D G M E N T

01The Sub­Inspector of police, S.R. Nagar P.S. filed charge sheet in Cr.No.

47/2013 for murder of one Ashok Kumar. According to Charge Sheet A1 to A9 are guilty of offences u/secs. 302, 120­B, 201 r/w 34 IPC.

02According to the case of prosecution, on 21­1­2013 at about 7:30 PM LW1 (S.Prasanna) wife of deceased Ashok Kumar gave complaint saying that her husband

Ashok Kumar is doing finance business. There are differences with his colleagues A1 and

A2. In connection with said disputes they threatened to kill him and her husband used to inform her about the disputes with them. That she came to know that her husband was murdered by A1 and A2 and who came on bike and stabbed her husband infront of

Parchuri foods at KK Towers, Yousufguda. Police registered a case and took up investigation. Police visited mortuary. They also conducted scene of offence panchanama and found two wheeler of deceased and his chappals. Police also found one sickle used in the offence. In the course of investigation, it was revealed that deceased used to work as pimp under A1 and later started separate brothel business. A1 and other accused are also brothels organizers. They got disputes on some financial matters. That deceased uttered bad words blaming wife of A2, who is A9. Deceased also uttered bad words with regard to relationship between A1 and A8. A1 and others bore grudge against deceased and waiting for an opportunity to kill him. They went to Kandukur, native place of deceased with an expectation that he will visit his native place to celebrate Sankranthi festival. When he did not visit his native place, they returned to Hyderabad and planned to kill him here itself.

A1 and other accused conspired to kill deceased. A1 and A2 went on a bike on the date of offence and they stabbed deceased with knife and sickle. Police recorded confession panchanamas of accused in the presence of different panch witnesses and ascertained that all accused conspired together to kill Ashok Kumar and murdered him.

03Upon committal of this case, this Court ensured furnishing of copies to all accused u/sec. 207 Cr.P.C.

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04On 6­12­2016 charges u/secs. 302, 120­B, 201 r/w 34 IPC are framed against accused, read over and explained to them. They understood the charge and pleaded not guilty.

05.During trial, prosecution examined PW1 to PW14 and marked Ex.P1 to

Ex.P31.

06On 1­10­2019 all accused were examined u/sec. 313 Cr.P.C. They denied the incriminating evidence adduced by prosecution and reported no defence evidence.

07.Heard. Perused the record.

08.Now the points for determination is:

1) Whether A1 and A2 stabbed deceased Ashok Kumar and murdered him?

2) Whether A3 to A9 conspired with A1 and A2 in committed said murder and aided them to hide the evidence?

3) Whether prosecution proved the guilt of A1 to A9 beyond all reasonable doubt?

Points No.1 to 3:

09PW1 (Smt.S.Prasanna), complainant has deposed that her marriage with

Ashok Kumar was performed on 2­5­2007. Prior to the marriage, Ashok Kumar was doing real estate business. Her marriage is performed at Singarayi Konda at her parents house.

Her in­laws used to reside at Tangutur village, Prakasham district. Ashok Kumar used to stay at Hyderabad by doing real estate business. She was in her in­laws house from 2007 to 2009 and thereafter came down to Hyderabad joined Ashok Kumar. Herself and Ashok

Kumar used to reside at Borabanda, Hyderabad. She is blessed with a son in the year 2008. Her husband also started doing finance business at Hyderabad.

10PW.1 further deposed that on 21­1­2013 S.R.Nagar police came to her house at about 7:00 to 7:30 PM and informed her that Ashok Kumar had tussle with his friends and he received injuries. Police had taken her to S.R. Nagar police station. At about 

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11:30 PM, police has informed her that some persons have killed Ashok Kumar with knives. She insisted the police to show Ashok Kumar in turn they stated that Ashok Kumar dead body is taken to Gandhi Hospital, Secunderabad and advised her to go to the hospital on the next day.

11PW.1 further deposed herself, her parents, her in­laws went to Gandhi

Hospital on 22­1­2013 and they were there near the hospital till evening, took the dead body of Ashok Kumar left to their native place. Ex.P1 is the complaint dt.21­1­2013. On the dictation of the police, she wrote the complaint. Police examined her and recorded her statement. 

12PW.2 (T.V. Murali Krishna) who is described as eye witness has deposed that on 21­1­2013 at about 9:00 PM, he received a phone call from the police station that

Ashok Kumar died, during that time he was at Gajularamaram. In the first week of

February 2013, police has called him to the police station and enquired him about the cause of death.

13PW.6 (T.Uday Kiran) friend of deceased has deposed that on 23­1­2013 police called him over his phone and enquired him that whether he was also involved in the murder of Ashok Kumar, then he came to know that Ashok Kumar died. 

14PW.7 (S.Brahmaiah) father of deceased has deposed that on 21­1­2013 while he was in his village, PW1 has informed him that Ashok Kumar is not well and he is in the hospital, that PW1 further stated that Ashok Kumar has received stab injury and died in

Gandhi Hospital. Himself and his wife came down to Hyderabad and visited the hospital.

One constable has informed that Ashok Kumar died and they handed over the body to him. Thereafter he took the dead body of Ashok Kumar to his native place to perform the obsequies.

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15PW.8 (Koyyada Ravi) panch witness for inquest panchanama has deposed that about six years back he went to see Mr.Ashok in Gandhi Hospital upon information that he died. Police conducted panchanama over dead body of Mr.Ashok Kumar. Himself and D.Upendra Kumar (LW16) both were present. He died because of stabbing injuries.

He saw stabbed injuries on the dead body. Police prepared panchanama in writing which is signed by himself and Mr.D.Upendra Kumar. Ex.P6 is inquest report and it bears his signature.

16PW.9 (G.Venkateshwar Rao) panch witness for confession­cum­seizure panchanamas of A1, A2, A8 and A9 has deposed that about six years back evening time,

S.R.Nagar police called him to the police station, he saw A1 (Durga Prasad) and A2 (Manoj) and he identified them in the court hall. One Srinu (LW19) who is his friend also was called by police. Both of them enquired A1 and A2 and they confessed that they stabbed one Ashok Kumar. Police prepared panchanama and both of them signed the same. Ex.P7 and Ex.P8 are relevant portions referring to information pertaining to weapon of offence in confession panchanama of A1 and A2.

17PW9 further deposed that they went to house of accused at Boduppal and recovered two weapons there. Both A1 and A2 had shown said two weapons and police recovered them under seizure report. Ex.P9 is seizure report. He identified MO1 and

MO2 one sickle and one knife recovered by police in their presence. 

18PW9 further deposed in the form of answers to the questions put by the learned Addl. Public Prosecutor that he does not remember that only one knife was seized at the house of A2 (Manoj Kumar) but not two knives as deposed by him. He agreed to say that police took two women into custody and examined them. He agreed to say that they are A8(Madhavi) and A9 (Laxmi Prasanna). He agreed to say that they informed police that they took blood stained clothes of A1 and A2 and they had thrown them in the bushes in front of their houses. He agree to say that police recovered said blood stained clothes also. He identified MO3 and MO4 two pairs of mens clothing. 

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19PW9 further deposed that police prepared panchanama and recovered them.

They signed said panchanama. Ex.P10 and Ex.P11 are relevant portions referring to information pertaining to recovery of blood stained clothes of Prasad and Manoj Kumhar in confession panchanama of A8 and A9. Ex.P12 is seizure report of blood stained clothes.

20PW9 further deposed that he does not know whether one of the women who informed police is present in the court that day. He cannot identify said woman exactly.

21PW12 (Dr.K.V. Ramana Murthy) conducted post mortem examination over the dead body of the deceased. He deposed that on 22­1­2013 he received a requisition from SHO, P.S. S.R. Nagar to conduct autopsy over the dead body of deceased S.Ashok

Kumar. Accordingly, he conducted postmortem examination over the dead body of

S.Ashok Kumar in the mortuary of Gandhi Hospital on the same day from 1:00 PM, to 2:00 PM and found antemortem injuries as mentioned in column No.9 of the PME report.

The cause of death is due to stab injury on chest and kidney. Ex.P25 is PME report issued by him. Said injuries are possible with moderately weighing sharp edged weapons like knife and sickle. 

22PW13 (Smt.Arun Jyothi) expert from APFSL has deposed that on requisition from Assistant Commissioner of Police, Panjagutta division on 29­1­2013 she has received one sealed cardboard box and one sealed clothe line cover. They contained a sickle with wooden handle, brown colour terry cotton full sleeved shirt, blue colour jeans pant and cotton swab. She conducted biochemical test and immunological test. Based on that she gave report that human blood is detected on items 1 to 3 (sickle, shirt and jeans pant) but their blood group could not be determined. Blood was not detected on item no. 4 i.e.

cotton swab which was received as control for items 1 to 3. Ex.P26 is FSL report dt. 24­5­ 2013 issued by her.

23PW14 (S.Prabhakar), the then Inspector of police, P.S. S.R. Nagar, investigating officer in this case has deposed that PW1 gave Ex.P1 report on 21­1­2013 at about 7:30 PM. Basing on the same, he registered a case in crime no. 47/2013 for the offences under sec. 302 r/w 34 IPC and issued Ex.P27 FIR. He visited Axon Hospital,

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Ameerpet, Hyderabad. Later he proceeded to scene of offence i.e. footpath of main road that leads to Yousufguda from Ameerpet. He secured presence of LW14 and LW15 K.Babji and Kusuma Prakash and conducted scene of offence observation­cum­seizure panchanama. He also prepared rough sketch. They are Ex.P28 and Ex.P29.

24PW14 further deposed that he had seized one pair of slippers in the scene of offence, sickle and one Honda Aviator moped vehicle bearing No. AP­09CP­1708 and controller. He took steps to take photographs of the scene. Later he shifted dead body of deceased from Axon Hospital to Gandhi Hospital mortuary. He examined PW1 and recorded her statement. He also examined PW2, PW3, PW4 and they stated to him as in

Ex.P2 to Ex.P4.

25PW14 further deposed that he also examined LW5 and LW6 B.Ramesh and

Preethi Ranjan Das. He examined PW5, LW8 K.Kiran, LW9 Y.Hari Babu, LW10 B.Dhana

Raj and PW6. He also examined PW7 and LW13 K.Anitha. PW5 stated to him as in Ex.P5.

He took steps for conducting inquest in the presence of LW16 D.Upendra Kumar and PW8 in Ex.P6. He had sent the dead body for autopsy. PW12 conducted post mortem and gave his report in Ex.P25.

26PW14 further deposed that both A1 and A2 were surrendered before concerned court. Immediately he approached the court and got their custody for 7 days for investigation. On 7­2­2013, he secured the presence of PW9 and LW19 Ranga Srinivas when they were ready to confess the offence. He had recorded confession of A1 and A2 in their presence in Ex.P7 and Ex.P8. He proceeded to Boduppal at Plot No. G6,

M.K.Residency, in the house of A2 and at the instance of A1 and A2, seized MO1. There

A8 and A9 were also present. He seized one cream colour cotton jeans pant, black colour half sleeves Reebok T­shirt belonging to A1, black pant belonging to A2, Olive Green half sleeves T­shirt of A2. (MO3 and MO4).

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27PW14 further deposed that after seizure, he brought A1, A2, A8 and A9 along with seized property to the police station, effected arrest of A8 and A9 and produced them for remand. He handed over A1 and A2 to judicial custody after police custody. He filed section alteration memo adding offences under sec. 201 IPC and also Sec. 120­B of

IPC. Ex.P30 is section addition memo.

28PW14 further deposed that on 11­2­2013, he arrested A3 and A7 at Big

Bazar, Ameerpet. He recorded confessional panchanama of A3 in presence of LW20 and

LW21 Mohd Javed and Mohd Abed. He also seized Red Colour Pulsar Motor cycle from

A3. Ex.P31 is confession­cum­seizure panchanama of A3.

29PW14 further deposed that on 29­4­2013, he also recorded confession­cum­ seizure panchanama of A4 D.Surendra Chowdary @ Balram in the presence of Rakesh

Vanjani PW10 and Jagdish Jani PW11. Ex.P23 is relevant portion of said panchanama.

Ex.P24 is seizure report. MO5 is number plate. Later he arrested A4 and A5 at Ganapathi

Complex, Srinagar colony. He had sent material objects to FSL. After collecting PME report and FSL report (Ex.P26), he concluded investigation that all accused committed offence under Sec. 302 and 201 r/w Sec.120­B IPC.

30PW1 is wife and PW7 is father of deceased Ashok Kumar. Both of them were not present at the time of murder of Ashok Kumar. They gave only hear say version saying that his friends informed that his business rivals stabbed Ashok Kumar and murdered him.

The oral evidence of PW1 and PW7 is not helpful to say that accused are involved in murder of Ashok Kumar.

31PW2 (Murali Krishna) is described as eye witness and PW6 (T.Uday Kiran) is described as friend of deceased. Both of them did not identify A1 and A2 as persons who murdered Ashok Kumar. They deposed only to the extent of murder of Ashok Kumar, but they did not give any details of any persons involved in said murder case.

32PW8 is panchayatdar for inquest panchanama. Through him Ex.P6 inquest report was marked.

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33PW9 (G.Venkateshwar Rao) is panch witness for confession­cum­seizure panchanama of A1, A2, A8 and A9. He turned hostile and failed to support the version of prosecution. The learned Additional Public Prosecutor tried to elicit through him that

MO1 and MO2 sickle and knife were recovered. But this PW9 did not withstand cross examination. He is not a credible witness to believe seizure of weapons of offence from

A1 and A2.

34PW12 is doctor who conducted autopsy and issued Ex.P25 PME report.

PW13 is expert from APFSL who gave Ex.P26 FSL report. Their evidence only go to show that Ashok Kumar died because of homicide.

35PW14 Mr.S.Prabhakar is investigating officer in this case. Through him, all confession and recovery panchanamas and MO1 and MO4 were confronted and marked.

Except evidence of investigating officer, the chain of evidence like eye witnesses and circumstantial witnesses could not connect accused with murder of deceased Ashok

Kumar. In these circumstances, the alleged conspiracy of all accused to kill Ashok Kumar and alleged murder by A1 and A2 was not established. So also the offence u/sec. 201 IPC by all accused could not be established. Hence all accused are found not guilty and are liable for acquittal. Accordingly points No.1 to 3 are answered.

36.In the result, A1, A2, A3, A4, A5, A6, A9 are found not guilty for the offences under Sections 302, 120­B, 201 r/w 34 of IPC. and consequently they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand canceled after lapse of appeal time.

MO1 to MO4 are ordered to be destroyed after lapse of appeal time.

Dictated to the Stenographer of this court, transcribed and typed by her, corrected and

pronounced by me in the open Court, on this the 22 nd day of October, 2019.

Sd/­Y.Sathyendra

VII ADDL., METROPOLITAN SESSIONS JUDGE

HYDERABAD.

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:

PW.1S.Prasanna PW.2T.V.Murali Krishna PW.3Paruchuri Radha Krishna PW.4M.Subba Narsimha PW.5Marisetti Kumar PW.6T.Uday Kiran PW.7S.Brahmaiah PW.8Koyyada Ravi PW.9G.Venkateshwar Rao PW.10Rakesh Vanjani PW.11Jagadish Jani PW.12Dr.K.V.Ramana Murthy PW.13Smt.Arun Jyothi, Joint Director, FSL, Hyderabad. PW.14S.Prabhakar, Inspector of Police. For Defence: NIL

EXHIBITS MARKED

For Prosecution: Ex.P.1Complaint. Ex.P.2Relevant Portion. Ex.P.3Statement. Ex.P.4Statement. Ex.P.5Relevant Portion. Ex.P.6Inquest Report. Ex.P.7&8Relevant portions referring to information pertaining to weapon of offence in Confessional Panchanama of A1 and A2. Ex.P.9Seizure Report. Ex.P.10 & Relevant portions referring to information pertaining to recovery of P.11blood stained clothes of Prasad and Manoj Kumar in Confessional Panchanama of A8 and A9. Ex.P.12Seizure Report of Blood stained clothes. Ex.P13 Signature of PW10 on Confession­cum­Seizure panchanama of A4. to P16 Ex.P.17Signature of PW10 on Seizure report. Exs.P.18 to Exs.P21Signatures of PW11 on confession­cum­seizure panchanama of A4. Ex.P22 Signature of PW11 on Seizure Report. Ex.P23Relevant portion of information given by A4 in said panchanama. Ex.P24 Seizure report. Ex.P.25PME Report. Ex.P.26FSL Report, dt.24.5.2013 issued by PW13. Ex.P.27First Information Report. Exs.P28 &Scene of offence observation­cum­seizure panchanama Ex.P29and Rough Sketch. Ex.P30Section Addition Memo. Ex.P31Confession­cum­Seizure panchanama of A3.

For Defence: NIL

12

M.Os MARKED: MO1 & 2  Sickle & Knife. MO3 & 4 Two pairs of mens clothing. MO5Number plate.

Sd/-Y.Sathyendra

VII ADDL., METROPOLITAN SESSIONS JUDGE

HYDERABAD.

1 Of 11OS.NO. 125/16

IN THE COURT OF THE III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, AT SECUNDERABAD.

DATED THIS, THE 24 th DAY OF OCTOBER, 2018

PRESENT: SRI Y. SATHYENDRA,

III SENIOR CIVIL JUDGE

O.S. NO. 125 OF 2016

Between:

R.K. Vajjalu, S/o. Late R.M.Sastry, Hindu, aged about 68 years, Retd. Employee, R/o. 3-6-549/550, Flat No. 501, BSN Reddy Enclave, Street No.7, Himayathnagar, Hyderabad – 29.--PLAINTIFF

A N D

Dr. Emmidi Raji Reddy, S/o. Late Venkata Reddy, Hindu, aged about 65 years, R/o. Plot No.280/281, H.No.3-32-5, Balam Rai Co-op Housing Society, Mahenerdra Hills, East Marredpally, Secunderabad – 26. --DEFENDANT

This suit coming before me for final hearing in the presence of Sri K. Sridhar Rau, Advocate for the plaintiff and Sri T. Sunil Kumar, Advocate for defendant, and the matter having been heard and stood over for consideration today, this Court delivered the following:-

// J U D G M E N T //

1.Plaintiff filed this suit for eviction of defendant and recovery of arrears of rent and damages.

CASE OF PLAINTIFF:

2.Plaintiff being absolute owner of suit schedule property leased the same to defendant from the year 2010 for 11 months and renewable for two months but not exceeding 24 months on same terms and conditions. Said tenancy was renewed with effect from 01.08.2012 on monthly rents of

Rs.13,000/- + Rs.7,000/- per month towards hire charges for fittings and appliances and the total amount payable was Rs.20,000/- per month.

Defendant deposited a sum of Rs.85,000/- towards refundable deposit and it has to be refunded at the time of vacating the premises. As per lease 2 Of 11OS.NO. 125/16 agreement dt. 05.10.2012 the tenancy is terminable by three months notice in writing. Both parties had mutual agreement for enhancement of rent @Rs.25,000/- per month from July 2015 onwards and such amount includes hire charges also. Defendant paid Rs.25,000/- by way of cheque alongwith covering letter dt.22.09.2015. It was adjusted towards the rent for the month of July 2015. Thereafter defendant did not pay rents. Plaintiff demanded rents for August and September 2015 by letter dt.22.09.2015.

Since defendant did not turn up, plaintiff was constrained to terminate the tenancy of defendant by issuing legal notice dt. 29.09.2015. It was duly served on defendant and plaintiff received postal acknowledgment.

Defendant neither replied nor vacated. Defendant is liable to pay

Rs.25,000/- per month from 01.01.2016 onwards towards damages for use and occupation of suit house illegally.

3.According to plaintiff, termination of lease/quit notice was issued on 29.09.2015 giving three months time to defendant to vacate by the end of

December 2015, but he did not vacate. He received said quit notice, but he did not reply. Basing on this quit notice, this suit was filed.

CASE OF DEFENDANT:

4.Defendant submitted that he was inducted as tenant on a promise that he will be given right of presemption to purchase the suit property and it was upon oral understanding. Defendant stated that he undertook repairs, renovation and refurbishments works in the suit premises and invested lot of amounts. He gave list of about 25 or 26 works which he undertook in the suit premises. Defendant says that he had spent Rs.7 lakhs towards renovation and Rs.3 lakhs towards refurbishments and he took nearly six months time to complete all the works.

5.According to defendant, rent payable was Rs.8,000/- + Rs.7,000/- per month towards rent and hire charges for fittings etc. Both parties had a 3 Of 11OS.NO. 125/16 mediation before the elders of Balamrai Society Colony Association.

Defendant is alleging that plaintiff undertook to pay Rs.10 lakhs and defendant undertook to pay monthly rent of Rs.25,000/- from then onwards and issued security cheque accordingly on 22.09.2015. Defendant submitted that no amount of Rs.10 lakhs was paid by plaintiff. He cannot demand defendant to vacate. He stated that there is no cause of action at all for filing this suit. Defendant reserved his right to file a separate suit for recovery of amounts spent by defendant in respect of suit premises.

REJOINDER FILED BY PLAINTIFF:

6.Plaintiff denied the allegations made by defendant. Defendant alleged that plaintiff got disputes with previous tenant and the property was kept vacant for about two years. Plaintiff denied that allegation. He stated that he occupied the same for about five months. He denied the allegation that they was any understanding that defendant/tenant shall effect any repairs.

Plaintiff submitted he never put the suit premises for sale. There is no oral agreement regarding alleged repairs, renovation works etc., Plaintiff never agreed to bear 50% salary of gardener etc, allegations made by defendant.

The question of breach does not arise at all because there was no understanding for sale of suit property. Plaintiff never promised to refund the amount of Rs.10 lakhs as alleged by defendant in the presence of alleged arbitrators on 22.09.2015 or any other date.

7.ISSUES SETTLED FOR TRIAL:

Basing on the pleadings above, following issues are settled for trial:-

1. Whether there is valid termination of lease of defendant over plaint schedule property if so whether plaintiff is entitled to decree for eviction of defendant ?

2. Whether defendant gave any amount to plaintiff to claim set off in arrears of rent ?

4 Of 11OS.NO. 125/16

3. What is the quantum of rent payable by defendant to plaintiff ?

4. Whether plaintiff is entitled to recover arrears of rent upto December 2015 as prayed ?

5. Whether defendant is liable to pay damages from January 2016 onwards if so at what rate ?

6. To what relief ?

PROCEEDINGS AT THE STAGE OF TRIAL :-

8.At the stage of trial, plaintiff was examined as PW.1. He produced

Exs.A1 to A15. On the side of defendant, he was examined as DW.1. He produced Exs.B1 to B41. Exs.B1 to B40 are marked through DW.1. One

Mr. Samson was examined as DW.2 on the side of defendant to support his version. Ex.B41 was marked through DW.2.

9.Heard arguments. Perused the record.

10.ISSUE NO.1: Whether there is valid termination of lease of

defendant over plaint schedule property if so whether plaintiff is

entitled to decree for eviction of defendant ?

This is a case of admitted tenancy. Defendant is tenant of plaintiff/landlord. According to oral terms between plaintiff and defendant and according to terms of unregistered lease deed they agreed termination of lease by way of three months notice. Accordingly Ex.A3 legal notice, dt. 29.09.2015 was issued by plaintiff giving three months time till the end of December 2015 demanding defendant to vacate the property. Exs.A3 and A4 are postal receipts and speed post acknowledgment to show that quit notice was duly served on defendant.

Basing on Ex.A2 to A4, the court is satisfied to say that quit notice was properly issued and it was duly served on defendant. Accordingly lease of defendant was terminated as per their terms of the agreement. There is 5 Of 11OS.NO. 125/16 valid termination of lease of defendant in this case. Defendant being a tenant cannot squat illegally on the leased property under the guise of suit and litigation for a longer time. There is no registered lease agreement between plaintiff and defendant agreeing any specific lease period. What all agreed under unregistered lease deed was expired long back. In the circumstances, quit notice under Ex.A2 is valid and it terminated the tenancy of defendant.

11.This suit is based on quit notice under Ex.A2. All other correspondence between plaintiff and defendant was prior to quit notice.

There was no waiver of quit notice. Plaintiff gave three months time even after expiry of period till December 2015 demanding defendant to vacate.

He filed this suit in April 2016. In all respects, the suit is within time. The quit notice is valid and defendant is liable for eviction. Accordingly issue

No.1 has been answered.

12.ISSUE NO.3: What is the quantum of rent payable by defendant to plaintiff ?

According to plaint averments, plaintiff pleaded that Rs.13,000/- +

Rs.7,000/- are payable towards rent and hire charges for fittings and appliances per month. Plaintiff claimed total rental amount as

Rs.20,000/-. When he is cross examined by learned advocate of defendant

PW.1 deposed that rent payable is Rs.8,000/- + Rs.7,000/- in total as

Rs.15,000/- only. PW.1 deposed in the cross examination as follows:

“The rent is Rs.8,000/- per month and for fixtures and

fittings Rs.7,000/- for the purposes of this case admitted rent

payable was Rs.15,000/- per month”.

6 Of 11OS.NO. 125/16

13.After disputes between plaintiff and defendant, there was an agreement to enhance rent to Rs.25,000/-. Admittedly defendant issued cheque for Rs.25,000/- towards one month rent. Defendant admitted issuance of said cheque for Rs.25,000/- and plaintiff apportioned that amount towards rent for July 2015. Defendant has to pay rents from

August 2015 onwards at same rate. Plaintiff filed this suit for recovery of arrears of rent for five months from August to December 2015 @Rs.25,000/-.

14.Defendant made an allegation that plaintiff has to Rs.10 lakhs to him and on that condition he agreed to enhance rent to Rs.25,000/-. This allegation is not proved. There is no such agreement in writing. Plaintiff never agreed to pay Rs.10 lakhs as alleged by defendant, hence defendant’s contention cannot be established. As per record, defendant enhanced rent and paid Rs.25,000/- towards rent for July 2015. Hence he is bound to pay rent at the same rate for July 2015 onwards. Basing on the discussion above, the court records a finding that rent payable by defendant originally was Rs.15,000/- per month (Rs.8,000/- rent +

Rs.7,000/- hire charges towards fittings and fixtures). Later it was enhanced to Rs.25,000/- upon mutual agreement. Defendant paid monthly rent @Rs.25,000/- per month for July 2015 admittedly. Hence defendant has to pay rent @Rs.25,000/- from July 2015 onwards.

Accordingly issue No.3 is answered.

15.ISSUE NOS. 2 & 4: Whether defendant gave any amount to plaintiff to claim set off in arrears of rent ?

Whether plaintiff is entitled to recover arrears of rent upto

December 2015 as prayed ?

In the written statement, there is no claim for set off or counter claim. Defendant reserved his right to file a separate suit for recovery of amount allegedly spent by him in respect of suit premises. Hence all his 7 Of 11OS.NO. 125/16 allegations that he undertook repairs, renovation and refurbishment works by spending huge amount to an extent of Rs.10 lakhs are not relevant for the purpose of his defence in this suit. In the cross examination of PW.1, he was pointed out with a statement in rejoinder that there was such an oral agreement as alleged by defendant. Said sentence cannot be read in piecemeal. Entire paragraph in rejoinder has to be read and understood. It is only a typographical mistake. It ought to be there was no such oral agreement, but it was mistake in typing and not rectified later. By reading entire paragraph, it is clearly suggesting that plaintiff filed that rejoinder only to deny the oral agreement alleged by defendant. Hence defendant cannot get any advantage by this typographical mistake in this sentence in the rejoinder.

16.In the cross examination of PW.1, he clearly deposed that he asserted in his letter in Ex.A7 that any expenditure on repairs over and above Rs.1,000/- requires his consent and acceptance in writing.

DW.1/defendant also accepted this condition in their lease terms in his cross examination. DW.1/defendant deposed as follows:

“I agree to say that terms of lease reduced in writing

between us say that I have to take written permission from

plaintiff in case of any repairs worth more than Rs.1,000/-”

17.In the light of above admitted fact, defendant cannot make bald allegations that he had spent Rs.10 lakhs over suit property without any authority in writing by plaintiff. He is making evasive allegations. He cannot escape eviction and payment of arrears of rent. He cannot claim set off or counter claim regarding demand of Rs.10 lakhs. He is illegally squatting over the property since January 2016 for nearly three years. In all these circumstances, plaintiff is entitled to recover arrears of rent upto

December 2015 as prayed @Rs.25,000/- per month.

8 Of 11OS.NO. 125/16

18.Defendant paid Rs.25,000/- and that was apportioned towards rents for July 2015. The burden lies upon defendant to prove that he paid rents for the period from August 2015 till December 2015 for five months. As per the law under Section 108(l) of the Transfer of Property Act, the burden lies on tenant to show that he paid or he properly tendered the amount towards rent. Defendant did not pay rents for the months August 2015 till December 2015. According to admitted amounts of rent enhanced that is Rs.25,000/- per month, he has to pay arrears for five months to a tune of Rs.1,25,000/-. Accordingly issue No.2 is answered against defendant and issue No.4 is answered in favour of plaintiff.

19.ISSUE NO.5: Whether defendant is liable to pay damages from January 2016 onwards if so at what rate ?

Plaintiff issued quit notice under Ex.A2. The possession of defendant turned unlawful from January 2016 onwards. A person in unlawful possession has to pay mesne profits. This is a fair case where plaintiff demanded mesne profits @Rs.25,000/- that was admitted enhanced rent.

Plaintiff also came forward to pay court fee on the future damages amount ascertained. Considering all the circumstances of the case, the court quantifies Rs.25,000/- as reasonable amount towards damages from

January 2016 onwards till this month i.e., October 2018.

20.From November 2018 onwards the court quantifies penal damages @Rs.30,000/- per month till the date of physical delivery of suit property to plaintiff. Accordingly this issue No.5 is answered.

21.Suit is being decreed without costs. Reason: Plaintiff pleaded that already an amount of Rs.85,000/-is lying with him towards security deposit advance. In the cross examination, PW.1 deposed that it was only

Rs.65,000/-. The court cannot accept his oral version beyond the 9 Of 11OS.NO. 125/16 pleadings. It appears plaintiff wantd to usurp Rs.20,000/- out of the security deposit without any legal basis. Further in the pleadings plaintiff made an allegation that monthly rent payable is Rs.13,000/- + Rs.7,000/- = Rs.20,000/-. In the cross examination, he fairly deposed that rent payable was Rs.8,000/- + Rs.7,000/- = Rs.15,000/- per month only. Later it was enhanced to Rs.25,000/-. Since plaintiff did not approach the court with clean hands in giving quantum of rent and tried to give a different version of security deposit advance amount in the cross examination, the suit is being decreed without costs.

22.When compared to plaintiff and defendant, defendant committed more unlawful things while conducting his defence in this suit. Despite direction of Hon’ble High Court to dispose off this suit at the earliest, defendant dragged the suit proceedings till the Judgment by filing several miscellaneous applications. Even after the suit is posted for Judgment, he filed an IA to reopen the matter to submit his side hearing. The suit proceedings on docket clearly reflect, how the defendant dragged the trial proceedings in the suit. Despite diligent efforts made by plaintiff and the court to dispose of the suit on merits. Defendant cannot illegally squat on the property. Plaintiff is a senior citizen hence defendant has to vacate according to this Judgment and decree.

23.IN THE RESULT, this suit is decreed without costs.

(a)for eviction of defendant directing him to vacate within two months from the date of Judgment failing which plaintiff/DHr may file execution petition after expiry of prescribed period and also time for appeal, and get delivery. It is necessary to mention that defendant/JDr shall handover suit property to plaintiff with all fittings and fixtures, when he vacates.

10 Of 11OS.NO. 125/16

(b)this suit is further decreed for arrears of rent directing defendant to pay Rs.1,25,000/- at the rate of Rs.25,000/- per month from August, 2015 till December 2015.

(c) this suit is further decreed for damages/mesne profits at the rate of

Rs.25,000/- per month from January 2016 till October 2018 and penal damages/mesne profits at the rate of Rs.30,000/- per month from

November 2018 till physical delivery of possession.

Plaintiff has to pay court fee to get final decree for mesne profits and file execution petition. Plaintiff shall refund the security deposit of

Rs.85,000/- (if any left) at the time of delivery, subject to deduction of arrears of rents and also mesne profits amount due as per calculation.

Typed to my voice recording by the Personal Assistant, corrected and

pronounced by me in the open Court on this the 24 th day of October, 2018.

III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE PLAINTIFF:

PW1 : R.K.Vajjalu.

ON BEHALF OF THE DEFENDANT:

DW.1: Dr.E.Raji Reddy.

DW.2: N. Samson.

EXHIBITS MARKED

ON BEHALF OF THE PLAINTIFF:

Ex.A1 -Letter of defendant dt.22.09.2015.

Ex.A2 -Office copy of legal notice dt. 29.09.2015.

Ex.A3 -Postal receipt dt. 29.09.2015.

Ex.A4 -Speed post acknowledgement.

11 Of 11OS.NO. 125/16

Ex.A5 -Letter of plaintiff, dt. 28.04.2011.

Ex.A6 -Letter of defendant, dt. 07.05.2011.

Ex.A7 -Letter of plaintiff, dt. 11.05.2011.

Exs.A8 - Letter of defendant dt. 13.05.2011.

Ex.A9 -Letter of plaintiff dt. 17.05.2011.

Ex.A10 -Letter of plaintiff dt. 10.06.2011.

Ex.A11 -Letter of plaintiff dt. 20.06.2011 with postal receipt.

Ex.A12 -Leter of plaintiff dt. 07.07.2011 with postal receipt.

Ex.A13 -Letter of plaintiff dt. 10.09.2011.

Ex.A14 -Letter of plaintiff dt. 11.04.2015 with postal receipt.

Ex.A15 - Carbon copy of reply dt. 29.09.2015.

ON BEHALF OF THE DEFENDANT:

Ex.B1 -Bunch of photos. Ex.B2toBills marked separately. B30 - Ex.B31 -Inland letter. Ex.B32 -Office copy of complaint, dt. 10.10.2017 addressed to SHO, Tukaramgate P.S.. Ex.B33 -Postal acknowledgment. Ex.B34 -Acknowledgment given by T.S. police department, dt. 10.05.2018. Ex.B35 -Office copy of complaint, dt. 05.05.2018. Ex.B36 -Letter of plaintiff, dt. 21.04.2018 alowgwith envelope cover. Ex.B 37 -Inland letter (not opened) addressed to one Sai Sriram Reddy, Mahindra Hills, Secunderabad. Ex.B38 toElectricity bills. B40 - Ex.B41 -Certificate dt. 25.05.2011.

III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

::Page 1 of 10::

SC No.28 of 2021

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES

UNDER THE S.Cs AND STs(POA) ACT CUM VI ADDL.

METROPOLITAN SESSIONS JUDGE :: SECUNDERABAD

Present : Y. Sathyendra, Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl. Metropolitan Sessions Judge Secunderabad

THURSDAY, THE TWENTY FOURTH DAY OF FEBRUARY

TWO THOUSAND AND TWENTY TWO

SC No.28 of 2021

Crime No.& Police Station : Cr.No.339 of 2019 of Begumpet Police Station

Name of the Complainant : The Inspector of Police, Begumpet PS. Name and Description of the accused : A1. Kummari Abliash @ laddu, s/o. K. Yadagiri, aged 19 yrs, occ: Catering work, r/o. H.No.2-83, Harijan Basthi, Jeedimetla, Pet- Basheerabad PS, Cyberabad.

A2.Mangi Bhanuprasad @ Bhanu, s/o. M. Thirupataiah, aged:19 yrs, occ: Auto Driver, r/o. Bank Colony, near Saibaba Temple, Srinivas Residency, Jeedimetla, n/o. H.No.7-82, SC Colony, Bijinepally, Nagarkurnool District.

A3.Venkat Rao Shinde @ Shinde S/o. Shinde Sanjay, aged:20 yrs, occ:Carpenter, r/o. H.No.7-14, Jeedimetla colony, pet- Basheerabad PS, Cyberabad, N/o. Korekal(village), Bidar District of Karnataka State.

A4.Patan Salman Khan, s/o. Patan Osman khan, aged;19 yrs, occ:parking agent in KLM fashion mall, r/o.Near Govt. High school, jeedimetla village, Pet-Basheerabad PS, Cyberabad.

::Page 2 of 10::

SC No.28 of 2021

BJ1:Ankuri Naresh, s/o. A. Mahesh, aged 16 years, occ: Water supply, r/o.Near Royal Park, Kompally, Pet-Basheerbagh, n/o. Madharam (V),Mahaboob Nagar district.

Prosecution conducted by : Sri R. Upender, Additional Public Prosecutor

Accused defended by : Sri. G. Raja Sekhar Reddy, counsel

for accused No.1 to 4.

Offences under Secs. : U/Sec.395 IPC

Plea of Accused: Pleaded not guilty

Finding of the Court : Held not guilty

Result: A1 to A4 are found not guilty for the offence under Sec.395 IPC and they are acquitted under Sec.235(1) Cr.P.C. The bail bonds of the accused shall continue for a period of six months under Sec.437-A Cr.P.C. The interim custody of MO.1 given to PW1 shall become absolute after lapse of appeal time. The interim custody of MO.2 given to PW.4 also shall become absolute after lapse of appeal time.

This case is coming before me on 24.02.2022 for hearing and upon hearing the arguments of Sri R. Upender, learned Additional Public Prosecutor for the State and Sri. G. Raja Sekhar Reddy, learned counsel

for the accused No.1 to 4, having heard the matter and stood over for

determination till this day, this court delivered the following:-

:: J U D G M E N T ::

The Inspector of Police, Begumpet Police Station filed charge sheet in Cr.No.339 of 2019 saying that A1 to A4 along with boy juvenile by name, Ankuri Naresh committed offence of dacoity under Sec.395 IPC.

2)According to the charge sheet, on 1.8.2019 LW.1 U Vittal lodged a report saying that in the early hours at about 1 a.m. he got down from Zaheerabad at Bowenpally check post from an auto ::Page 3 of 10::

SC No.28 of 2021

trolley. He started towards CTO junction by walk and when he reached near Agrasen Bhavan, while talking over phone, he tried to engage another auto to go to Banjara Hills where he has to attend his work. Some auto coming that side on seeing him, slowed down.

There are four persons in that auto and two members were sitting front side and two others were sitting backside. They forcibly took away his Oppo mobile phone and without stopping auto, they fled away towards CTO junction, Secunderabad. He tried to catch them, but the person who were sitting back side of the auto pushed him away and he had fellen down. He received injury on right side above eye brow. He stated that he can identify the person who forcibly took away mobile phone if he sees him again. The age of said four persons is around 25 years. Upon his report, police registered the case, recorded his statement and had sent him to

Gandhi Hospital for treatment. Police visited scene of offence, conducted discreet enquiries, prepared scene observation panchanama and rough sketch in the presence of two mediators.

Police made requisition to the Nodal Officer to get call data records, they got phone number of the suspected person and verified the same. It belongs to one Jeethu Saini at Chinthal. On 16.8.2019 the

Investigating Officer along with his team and panch witnesses went to the house of LW.4 Jeethu Saini and recorded his statement. He stated that one Ankuri Naresh, boy juvenile sold said phone to him for Rs.2,500/-. They recovered the stolen phone from Jeethu Saini

LW4. Upon information given by him, they proceeded to the house of boy juvenile by name, Ankuri Naresh, aged about 16 years, who ::Page 4 of 10::

SC No.28 of 2021

belongs to Madaram village, Mahaboobnagar district. He confessed the guilt saying that he along with 4 others (adult persons) committed the offence in the presence of two panch witnesses viz.

Syed Javeed and Avula Laxman. Upon his confession, again police proceeded along with panch witnesses to Jeedimetla village near

Sai Baba Temple, Srinivasa Residency and found A1 to A4 there.

Police apprehended them and recorded confession of A1 to A4 in the presence of same mediators and seized crime vehicle auto bearing No.TS 12 UA 9423 from the possession of A2 under the cover of panchanama. According to confession given by A1 to A4 and boy juvenile, it is established that they all committed offence of dacoity. Hence police filed section alteration memo from Sec.392 to 395 IPC. Police effected arrest of A1 to A4 and boy juvenile and produced them for remand before concerned learned Magistrate.

Basing on the evidence, it is ascertained that A1 to A4 and boy juvenile, all committed offence of dacoity. Police examined LW.7

Mangi Tirupathaiah, owner of crime vehicle and he is none other than the elder brother of A2.

3)Upon committal of this case, it is ensured that A1 to A4 received copies of all case papers under Sec.207 Cr.P.C. before committal court itself.

4)All accused represented before the court that they are having means to engage legal counsel to defend them. They engaged Sri G.Rajashekar Reddy and T.Pradeep, as advocates on their side.

::Page 5 of 10::

SC No.28 of 2021

5)On 16.10.2021, a charge under Sec.395 IPC was framed, read over and explained to accused No.1 to 4 in Telugu language.

They pleaded not guilty. During trial, the prosecution examined

Pws.1 to 6 and marked Exs.P1 to P13 and Mos.1 and 2. MO.1 phone was given to interim custody of PW.1 after his evidence upon personal bond. On 16.2.2022 A1 to A4 were examined under

Sec.313 Cr.P.C. They denied incriminating evidence adduced by prosecution. They reported no defence evidence. Heard arguments of learned Addl. Public Prosecutor and T.Pradeep for defence.

6)Now the points for determination are:

1)Whether A1 to A4 along with one boy juvenile committed offence of dacoity by stealing MO.1 phone belonging to

PW.1 in the late/ early hours? And 2)Whether prosecution established guilt of A1 to A4 under Sec.395 IPC beyond all reasonable doubt?

POINT Nos.1 and 2:

7)PW.1 Uppari Vittal deposed about the incident how his phone was snatched away. In the evidence, he deposed that 3 or 4 persons came from back side and snatched his phone and they escaped in one auto. He identified 4 accused standing in the dock as persons who snatched away his phone. Through him, his report in Ex.P1 and mobile phone in MO.1 are both marked.

8)PW.2 Ravi Rathod is witness to crime details form and rough sketch. He deposed about the same and it is marked as

Ex.P2. PW.3 and 4 Syed Javeed and A.Laxman are two panch witnesses for confession of boy juvenile and A1 to A4 in this case.

::Page 6 of 10::

SC No.28 of 2021

Both Pws.1 and 5 turned hostile and failed to support the version of prosecution.

9)PW.4 (LW.7) M.Ramesh is owner of the crime auto and it is marked as MO.2. As per statement of police recorded, he is described as M.Tirupathaiah. According to submissions of learned

Addl. Public Prosecutor, A2 and PW.4 are both real brothers born to

Mangi Tirupathaiah, but police did not bring this aspect in clear term in their record. The name of PW.4 was wrongly mentioned in the charge sheet by negligence.

10) Had LW.7 details are properly described in the list of witnesses column and he deposed that A2 is his brother, at least A2 among all other accused could be convicted, but the charge sheet filed by police is having a mistake on this point. Learned Addl.

Public Prosecutor made all his efforts to link up relation of A2 with

PW.4 M.Ramesh, but still said witness failed to admit that A2 is his brother. He deposed that Ramesh, Suresh and Mahesh are sons of

Mangi Tirupathaiah and he can produce Aadhar cards of his brothers viz., Suresh and Mahesh. At stage learned Addl. Public

Prosecutor declared him as hostile and put questions in the nature of cross examination. Ex.P5 is statement of PW.4 though his name was wrongly mentioned is marked in the cross examination.

11) PW.6 G.Naresh, the then Inspector of Police deposed about

FIR, confession cum seizure panchanama, customer application form copy, call data form and Sec.65-B Certificate. He also deposed about legal opinion and section adding memo. He deposed that SI ::Page 7 of 10::

SC No.28 of 2021

of Police recovered MO.1 phone from LW.4 Jeethu Saini and described him as an innocent purchaser of stolen mobile phone.

12) In this case, LW.4 Jeethu Saini was not examined by prosecution. PW.1 U.Vittal did not refer about presence any boy

Juvenile in the incident of snatching away of his mobile phone. In the report, he mentioned 4 persons were in auto and in the evidence he deposed 3 or 4 persons came from his back side and snatched away his phone. In the report, he mentioned that when if he sees the person, who snatched away his phone, he can identify him. He did not give physical features of said 4 persons in his report or in his evidence.

13) Learned Addl. Public Prosecutor tried to impress the court by arguing on the line that there is function hall near the scene of incident and hence there is lighting to enable PW.1 to see culprits.

14)Learned Addl. Public Prosecutor submitted a decision in Raja

Vs. State in Criminal Appeal No.740 of 2018 by Hon’ble

Supreme Court of India dt.10.12.2019 and submitted that test identification parade is not always mandatory. If the witness is satisfied for gaining enduring impression of the identity on his mind the court can give weight to the identification of accused by witness

in the court.

15)In this case, as per charge sheet 5 members were involved.

PW.1 no where in his report or in evidence referred about involvement of 5 persons. Merely because 4 persons as accused are identified they are standing in accused dock and merely because

PW.1 identified them as culprits, the court cannot act upon his ::Page 8 of 10::

SC No.28 of 2021

evidence to find all A1 to A4 guilty of Sec.395 IPC. PW.1 did not depose about the presence and participation of 5th person who is a boy juvenile. Police did not chose to produce LW.4 Jeethu Saini in this case, a crucial witness from whom phone was recovered. Police are giving him a certificate saying that he is an innocent purchaser.

When he purchased said phone for Rs.2,500/- only, how police can certify that he is an innocent purchaser and he does not know that was a stolen phone. LW.4 Jeetu Saini ought to have been shown as receiver of stolen property and made co-accused as A6 or A5 in this case. This is one irregularity. Lastly the description of owner of the crime vehicle in Sec.161 Cr.P.C. statement and also in charge sheet was not correctly mentioned. He is M.Ramesh originally, but his father’s name is mentioned as his name. Learned Addl. Public

Prosecutor made all efforts to link up relationship between A2 and

PW.4, but because of irregularity committed by police in their record, that could not be patched up. Hence I am giving benefit of doubt to A2.

16)Though PW.1 identified A1 to A4, I cannot attach any value and weight to said identification, when he failed to say about involvement of 5 persons at any place in his report or in evidence.

For all these reasons, I find A1 to A4 not guilty for the offence under

Sec.395 IPC.

17)In the result, A1 to A4 are found not guilty for the offence under Sec.395 IPC and they are acquitted under Sec.235(1) Cr.P.C.

The bail bonds of the accused shall continue for a period of six months under Sec.437-A Cr.P.C. The interim custody of MO.1 given ::Page 9 of 10::

SC No.28 of 2021

to PW.1 shall become absolute after lapse of appeal time. The interim custody of MO.2 given to PW.4 also shall become absolute after lapse of appeal time.

Dictated to the Stenographer, transcribed and typed by him, corrected and

pronounced by me in the open Court on this the 24th day of February 2022.

SPL JUDGE FOR THE TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM –

VI ADDL. METROPOLITAN SESSIONS

JUDGE::SECUNDERABAD.

::Page 10 of 10::

SC No.28 of 2021

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution

PW1 :Uppari Vittal PW2 :Ravi Rathode PW3 :Syed Javeed PW4 :M. Ramesh PW5 :A. Laxman PW6 :G. Naresh For Defence Nil For Prosecution Ex.P1 : Report

Ex.P2 : Crime details form and Rough Sketch.

ExP3 : Signature of PW3 on confession panchanama of A1.

ExP4 : Signature of PW3 on seizure report.

ExP5 : Statement of PW4 (his name is wrongly mentioned by police as Tirupathaiah) recorded by police under Sec.161 Cr.P.C.

ExP6& 7 : Signatures of PW5 on confession of boy juvenile and A1 to A4.

ExP8 : FIR.

ExP9 : Confession cum seizure panchanama (relevant portion showing recovery).

ExP10 to P12 :Customer application form copy, call data record and Sec.65-3 certificate.

ExP13 : Medical opinion given by Dr.D. Shanker Singh.

ExP14 : Section Adding Memo.

MATERIAL OBJECTS:

MO.1 : Phone

MO.2 : Auto bearing No.TS12UA9423.

SPL JUDGE FOR THE TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM –

VI ADDL. METROPOLITAN SESSIONS JUDGE

SECUNDERABAD

1

SC 448/2016

IN THE COURT OF THE ADDL. METROPOLITAN SESSIONS JUDGE FOR TRIAL

OF COMMUNAL OFFENCES-CUM-VII ADDITIONAL METROPOLITAN SESSIONS

JUDGE :: AT HYDERABAD

Saturday, the 19th day of October, 2019

PRESENT: Y. Sathyendra,

VII ADDL. METROPOITAN SESSIONS JUDGE,

HYDERABAD

SESSIONS CASE NO. 448 OF 2016

(P.R.C. NO. 05/2016 on the file of III Addl. Chief Metropolitan Magistrate, Hyderabad)

Committed bySri R. Thirupathi, III Addl. Chief Metropolitan Magistrate, Hyderabad

Crime No. & P.S.Crime No. 923/2015 of P.S. S.R. Nagar, Hyderabad

1. Description of the Accused A1) Mailapalli Musili, S/o Devudu, Aged: 22 years, Occ: Fisherman, R/o Beside to H.No. 8-3-228/678/1519/80, 4th floor, Opp: PJR State, Sriram Nagar colony, Mothi Nagar, Hyderabad, N/o D.No. 1-1, Kotha Revupolavara, Gudivada, Visakhapatnam District (Organizer)

A2) Chodipalli Raju, S/o. Ch.Jagannadham, Aged: 19 years, Occ: Fisherman, R/o Rahmath Nagar, Hyderabad, Beside to H.No. 8-3-228/678/1519/80, 4th floor, Opp: PJR State, Sriram Nagar colony, Mothi Nagar, Hyderabad, N/o D.No. 5-52/1, Kothapatnam, Rambilli Mandal, Visakhapatnam District (Sub-Organizer)

A3) Chintakayala Venkateswarlu, S/o Chinthakayala Chinna, Aged: 31 years, Occ: Fisherman, R/o Beside to H.No. 8-3- 228/678/1519/80, 4th floor, Opp: PJR State, Sriram Nagar colony, Mothi Nagar, Hyderabad, N/o D.No. 2-191, Kothapatnam, Rambilli Mandal, Visakhapatnam District (Sub-Organizer)

2. Charges framedU/sec. 370 of Indian Penal Code and sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 2

SC 448/2016

3. Plea of the AccusedNot guilty

4. Finding of the Judge Not guilty

5. Sentence or Order(i) In the result, A1 to A3 are found not guilty for the offences punishable under Sections 3, 4 & 5 of the Immoral Traffic (Prevention) Act, 1956 and section 370 of the Indian Penal Code and accordingly they are acquitted U/sec. 235(1) Cr.P.C. The bonds and bail bonds of the accused No.1 to 3 shall remain in force for six months from the date of this judgment, in compliance of Sec.437-A Cr.P.C.

(ii)M.O.1 (Amount of Rs. 3,140/- in F.D.R.) shall be confiscated to the State, M.Os.2 to 4-Mobile phones shall also be confiscated to the State. M.O.5 shall be destroyed after lapse of appeal time.

6. Prosecution conducted bySmt. P. Shailaja, Additional Public Prosecutor

7. The Accused defended by Sri Gampa Venkatesham,

This case was coming before me in the presence of Smt. P. Shailaja,

Additional Public Prosecutor for the State and of Sri Gampa Venkatesham,

Advocate for the Accused, upon pursuing the material papers on record, upon hearing arguments and the matter having stood over for consideration, this Court delivered the following:-

J U D G M E N T

1.The Inspector of Police, S.R.Nagar P.S.filed charge sheet against A1 to

A3 contending that they are organizing brothel house and committing offences under the Immoral Traffic (Prevention) Act, 1956 and section 370 of the Indian Penal Code.

2. (i) According to the version of prosecution on 01.12.2015 at 08:00 P.M.

Lw.9-Sri K. Venkateshwar Reddy, Detective Inspector of Police, Panjagutta

P.S. received information that one Musili is running brothel house at Sriram 3

SC 448/2016

Nagar colony, Mothi Nagar, Hyderabad. He obtained search warrant from the Assistant Commissioner of Police, Panjagutta Division. He drafted search proceedings under section 165 of CR.P.C. in the presence of Lws.3 and 4-Mohd. Afsar and Smt. A. Pameela. He along with his Team including women constable went to the subject building and gave instructions to

Lw.7-K. Raja, Police Constable to act as decoy. He gave him some amount and instructed him to go inside the brothel house where brothel activity is going on. He gave instruction to give him signal after ascertaining that brothel activity is going on.

(ii)Lw.7-Mr. Raja went inside and gave signal after some time. Lw.9-K.

Venakteshwar Reddy, Detective Inspector along with his Team and panchas entered the premises, served search proceedings and conducted search.

They found two female sex workers namely Bangari and Malleshwari. They found A1 to A3 as organizer and two sub-organizers. They gave confession and police recorded the same and seized an amount of Rs. 1,140/-, one mobile phone and five condoms from the possession of A1-Musili, an amount of Rs. 1,000/-, one mobile phone from the possession of A2-Raju and an amount of Rs. 1,000/-, one mobile phone from the possession of A3-

Ch. Venkateshwarlu under the cover of confession-cum-seizure panchanama in thepresence of two panch witnesses. He brought accused persons and victim girls along with seized property to police station and gave report. Upon which Lw.10-Sri P. Sateesh, Inspector of Police, P.S.

S.R.Nagar registered the case, took up investigation and completed the same. He arrested A1 to A3 and produced them before the Court. He also produced two female sex workers for rehabilitation through Court. He filed charge sheet.

4

SC 448/2016

3.Upon committal of this case, this Court ensured serving of copies of case papers on all accused persons as contemplated under sections 207 of

Cr.P.C.

4.On 11.03.2019 charges under section 370 of IPC and sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 were framed against A1 to A3 respectively and explained to them in Telugu language. They denied the charges and pleaded not guilty.

5.During trial, the Prosecution examined Pws.1 to 5 and marked Exs.P1 to P4 and M.Os.1 to 5.

6.On 17.10.2019 A1 to A3 were examined under section 313 Cr.P.C.

They denied incriminating evidence adduced by prosecution. They reported no defence evidence.

7.Heard arguments of both sides. Perused the recrod.

8.Now the points for determination are:-

(i) “Whether A1 to A3 organizing brothel activity by exploiting two victim women for commercial sex and committed offences under sections 370 of IPC and sections 3, 4 and 5 of the

Immoral Traffic (Prevention) Act, 1956?”

(ii)“Whether Prosecution proved the guilt of accused beyond all reasonable doubt?” 5

SC 448/2016

POINTS 1 AND 2:

9.In this case, Prosecution examined the decoy witness Mr. S. Raja as

Pw.1, one of the eye witnesses by name Mohd. Afsar as Pw.2, owner of the house by name Mohd. Mazaruddin as Pw.3, the Police Inspector who conducted the raid by name Sri K. Venkateshwar Reddy as Pw.4 and another Police Inspector who regsitered the case and filed charge sheet as

Pw.5.

10.Pw.1-S. Raja, Police Constable deposed that he acted as decoy upon the instructions of Pw.4. He deposed about drafting of search proceedings in the presence of two panch witnesses and going to one Apartment in fourth floor at Mothi Nagar. As such Pw.1 deposed that he enquired one male person about availability of sex worker and found two other female persons by his side. He deposed that he was informed that two women are available for commercial sex. He identified said three male persons as A1 to

A3. That they asked him to pay Rs. 1,000/- to have commercial sex. Then he gave missed call to Pw.4. Hence he entered along with panchas and other police and conducted search.

11.Pw.4-K. Venakteshwar Reddy, the Detective Inspector who was working in Panjagutta P.S. at relevant time conducted search in the limits of

S.R. Nagar P.S. in this case. He deposed about receiving of information, taking permission to conduct search, security two panch witnesses (one of them is women), going to the place where he got information that brothel activity was going on. Giving instructions to take one constalbe, receiving signal from him, conducting raid in the presence of panchas, preparing confession-cum-seizure panchanama of A1 to A3, taking of accused and 6

SC 448/2016

two sex workers along with seized property M.Os.1 to 5 to S.R. Nagar P.S.

and giving of report by him in Ex.P3.

12.Pw.5-Sri P. Satish, the then S.H.O./Inspector of Police P.S. S.R. Nagar deposed about registering the case upon the report given by Pw.4, conducting investigation by examining all listed witnesses, arresting accused and producing them before concerned Court. He also deposed that his investigation revealed that A1 is organizer and A2 & A3 are sub organizers of brothel house. He concluded his investigation by filing charge sheet.

13.Learned Defence Counsel-Sri Gampa Venkatesham argued that only a

Police Officer designated under section 15 of the Act is competent to conduct search proceedings under the provisions of Immoral Traffic (Prevention) Act, 1956. He relied upon various citations in connection with this contention.

14.In this case, Pw.4-Sri K. Venkateshwar Reddy, in the cadre of Inspector of Police conducted raid. Learned Addl. Public Prosecutor referred that there is G.O. authorizing all Inspectors of Police to act under the provisions of the

Immoral Traffic (Prevention) Act as Special Police Officer.

15.In this case Pw.4 was working as Inspector of Police in Panjagutta P.S.,

Hyderabad at relevant time. But he conducted this raid in the limits of

S.R.Nagar P.S. though he can be considered as Special Police Officer as per

G.O. referred by learned Additional Public Prosecutor regarding his competency, such G.O. did not authorize him to conduct search beyond the limits of their police station jurisdiction.

7

SC 448/2016

16.In this case the evidence of Police witnesses namely decoy constable-

Pw.1, Inspector of Police who conducted raid (Pw.4) and another Police

Inspector who condcuted investigation and filed charge sheet-Pw.5 go to show that raid was conducted and all accused were found running brothel activity.

17.In order to corroborate the version of Police Officers, the prosecution examined one of the panch witnesses and house owner as Pws.2 and 3.

Pw.2 turned hostile and did not support the version of Prosecution. In the cross-examination conducted by learned Additional Public Prosecutor he deposed to the extent of raid conducted by police in his presence. He deposed that he cannot identify the person found at the time of raid.

18.In the cross-examination, Pw.2 deposed that he put signatures on panchanama in the police station, but not in the scene where alleged brothel activity was going on. His evidence cannot be completely relied upon.

19.As per law, it was prescribed that one woman panch witness has to attend the search proceedings. In this case one Smt. A. Pameela was one of the panch witnesses. As per statue, she need not be compelled to give evidence and it is sufficient if one woman panch witness was present at the time of search. Pw.2-Mohd. Afsar deposed that he along with another woman by name Smt. A. Pameela were both present at Lucky Apartment and saw three men and two women in the said apartment. He deposed that police prepared panchanama there because wrongful act was going on there (wrongful act suggested brothel activity).

8

SC 448/2016

Citations (---------------- to be typed

20.

---------------- )

21.Pw.3- Mohd. Mazaruddin deposed that he is the owner of subject house at Sriram Nagar colony, Mothi Nagar, but no documents were collected from him to show his ownership. Pw.3 deposed that A1 got one portion on monthly rent of Rs. 7,000/-. Pw.3 deposed that two children were also residing with A1 as if it was a family. The police record did not show presence of any children or family in the said premises.

22.In this case both the victims-sex workers were not examined. They are crucial witnesses to bring home guilt fo accused persons to show that said victims were used as instruments for commercial sex. The Prosecution could not produce them as witnesses though the Court gave ample time and opportunity. Their evidence was closed after examining the

Investigating Officers.

23.In this case, Pw.4 can be considered as Special Police Officer designated under the Act. As per section 165 of Cr.P.C. a Police Officer can conduct search beyond the limits of jurisdiction of his police station. Though the Court believes the evidence of Police Officers who acts as decoy, who conducted raid and who filed charge sheet, the identity of accused and the 9

SC 448/2016

offences they had committed has to be proved beyond reasonable doubt without any scope for benefit of doubt.

24.In this case, Pw.2-Mohd. Afsar, panch witness turned hostile. Pw.3-

Mohd. Mazaruddin who is described as house owner deposed that A1 -Musili used to reside with two children as if he is living with family in his premises.

25.In this case Police did not examine any neighbours of that flat. They did not summon residents of same locality as panch witnesses. The

Prosecution could not examine the victims/sex workers who are crucial witnesses to give incriminating evidence against the accused persons.

26.In this case exploitation of women for commercial sex in said premises could not be established beyond all reasonable doubt. Hence accused are entitled for acquittal. Accordingly, points No.1 and 2 are answered.

27. (i) In the result, A1 to A3 are found not guilty for the offences punishable under Sections 3, 4 & 5 of the Immoral Traffic (Prevention) Act, 1956 and section 370 of the Indian Penal Code and accordingly they are acquitted U/sec. 235(1) Cr.P.C. The bonds and bail bonds of the accused

No.1 to 3 shall remain in force for six months from the date of this judgment, in compliance of Sec.437-A Cr.P.C.

(ii)M.O.1 (Amount of Rs. 3,140/- in F.D.R.) shall be confiscated to the

State, M.Os.2 to 4-Mobile phones shall also be confiscated to the State.

M.O.5 shall be destroyed after lapse of appeal time.

10

SC 448/2016

Dictated to Stenographer, Transcribed and typed by him , corrected and

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

VII ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

Appendix of Evidence Witnesses Examined

For the prosecutionFor the defence

PW1 S. Raja ---None--- PW2 Mohd. Afsar PW3 Mohd. Mazaruddin PW4 K. Venkateshwar Reddy PW5 P. Satish

Exhibits marked

For the prosecution

Ex.P1Confession-cum-Seizure panchanama Ex.P2Search Proceedings Ex.P3Report given by Pw.4 Ex.P4First Information Report

For the defence - Nil -

Material Objects Marked

M.O.1 - F.D.R. for Rs. 3,140/- M.Os.2 – Three Mobile phones to 4 M.O.5 – Five condom packets

VII ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

1 Of 8OS.NO.310/14

IN THE COURT OF THE III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, AT SECUNDERABAD.

DATED THIS, THE 26 th DAY OF OCTOBER, 2018

PRESENT: SRI Y. SATHYENDRA,

III SENIOR CIVIL JUDGE

O.S. NO. 310 OF 2014

Between:

Smt. B. Sujathamma, W/o. Chandrasekhar, age 65 years, Occ: Retd Employee, R/o. 12-13-745, Street No.1, Kimtee Colony, Tarnaka, Secunderabad.--PLAINTIFF

A N D

1. Smt. P. Bala, W/o. Late P. Venugopal, aged 40 years, Occ: Business.

2. P. Ashish, S/o. Late P. Venugopal, age 18 years, Occ: Student.

3. Kumari Harshita, D/o. Late P. Venugopal, age 21 years, Occ: Student.

All R/o.12-12-677/69, Street No.1, Sai Santosh Super Market, Kimtee Colony, Tarnaka, Secunderabad – 17. --DEFENDANTS

This suit coming before me for final hearing in the presence of Sri K. Mohan, Advocate for the plaintiff and of Sri N. Bhujanga Rao, Advocate for defendants 1 to 3, and the matter having been heard and stood over for consideration today, this Court delivered the following:-

// J U D G M E N T //

1.Plaintiff filed this suit for recovery of money against legal heirs of deceased borrower.

CASE OF PLAINTIFF:

2.She was working in HMDA. After her retirement she deposited her retirement benefits in fixed deposits. At the request of Mr. Venu Gopal, she gave hand loan to him by way of cheques at the first instance she gave Rs.4 lakhs under three cheques as follows;

Dt. 03.06.2011 Rs.1,50,000/-

Dt. 11.06.2011 Rs.50,000/-

2 Of 8OS.NO.310/14

Dt.11.06.2011 Rs.1,00,000/-. After these transactions, Mr.Venugopal issued two receipts dt.13.08.2011 and 14.08.2011 for Rs.1,50,000/- each.

After more than one year again plaintiff lent Rs.1 lakh by way of cheque on 15.12.2012 and on the same day he obtained another receipt dt.15.12.2012 for said Rs.1 lakh from him. Mr Venugopal also issued three cheques for Rs.1,50,000/-, Rs.1,50,000/- and Rs.1,00,000/- in favour of plaintiff.

3.Mr Venugopal died on 22.03.2014. Plaintiff approached his wife and children. They succeeded to immovable property and also business, but still they avoided to pay. Plaintiff issued legal notice dt.30.06.2014.

Defendant gave reply dt.22.07.2014. Plaintiff filed this suit on 08.08.2014. Mr. Venugopal issued cheques towards security alongwith receipts.

CASE OF DEFENDANTS:

4.Defendants denied amounts borrowed by Mr.Venugopal under alleged cheques. Defendants also denied issuing of any receipts by

Mr. Venugopal. Defendants also denied issuing any cheques by Mr.

Venugopal in favour of plaintiff. They submitted that all suit documents are false and fabricated documents. They submitted that they issued suitable reply to the legal notice issued by plaintiff. First defendant denied her signature as witness on any alleged receipts. Defendants submitted that alleged suit transactions on 03.06.2011 and 11.06.2011 are all barred by limitation. Death of alleged borrower cannot save or extend period of limitation prescribed under the Limitation Act.

ISSUES SETTLED FOR TRIAL:

5. Basing on the pleadings above the following issues are settled for trial:-

1. Whether the plaintiff is entitled for a sum of

Rs.4,06,000/- from defendants 1 to 3 jointly together with future interest @12% per annum from the dae of suit till realization ?

2. To what relief ?

3 Of 8OS.NO.310/14

PROCEEDINGS AT THE STAGE OF TRIAL :-

6. At the stage of trial, plaintiff was examined as PW.1. She produced

Exs.A1 to A9. Defendant No.1 was examined as DW.1. Both witnesses were cross examined through learned court commissioners.

7.Heard arguments on plaintiff’s side. Treated as heard on defendant’s side.

8.ISSUE NO.1: Whether the plaintiff is entitled for a sum of

Rs.4,06,000/- from defendants 1 to 3 jointly together with future

interest @12% per annum from the dae of suit till realization ?

Plaintiff as PW.1 deposed as follows: For the sake of convenience the amounts lent by her and the receipts she obtained from

Mr.Venugopal as deposed by her are given in the form of table given below:

DATES AMOUNTS

03.06.2011Rs.1,50,000/- 11.06.2011Rs.50,000/- 11.06.2011Rs.1,00,000/- 15.12.2012Rs.1,00,000/-

9.PW.1 further deposed that Mr. Venugopal issued receipts from time to time when he had withdrawn the amounts under cheques issued by her. Accordingly he issued three receipts dt.13.08.2011, 14.08.2011 for

Rs.1,50,000/- each and Rs.1,00,000/- on 15.12.2012.

Receipt dt. 13.08.2011Rs.1,50,000/- Receipt dt. 14.08.2011Rs.1,50,000/- Receipt dt. 15.12.2012Rs.1,00,000/-

10.It is the contention of PW.1 that Exs.A2, A4 and A5 three cheques were also issued by Mr. Venugopal towards security at the time of issuance of said receipts. They were issued for Rs.1,50,000/- +

Rs.1,50,000/- + Rs.1,00,000/- alongwith subject three receipts.

4 Of 8OS.NO.310/14

11.It is very important to mention here the relevant portion of cross examination of PW.1.PW.1/plaintiff deposed in her cross

examination that in the month of June 2011 Exs.A2 and A4 two

cheques were given to her when said amounts were advanced.

12.Defendant No.1 was examined as DW.1. The important admission as to execution was given by her in her cross examination. When she was confronted with Exs.A1 to A6, she admitted them by identifying signatures of her husband. She admitted that they all bear signatures of her husband. Exs.A1 to A6 all suit documents were admitted by her as signed by Mr. Venugopal.

13.At the stage of arguments, learned counsel for defendant raised an objection that subject three receipts already marked as Exs.A1, A3 and A6 are not admissible in evidence, unless stamp duty and penalty is paid.

Learned advocate for defendant vehemently argued that they have to be considered as “bonds” but not receipts. Upon hearing both sides, this court passed detailed docket Order dt. 11.09.2017 wherein this court recorded a finding that Exs.A1, A3, and A6 are receipts as well as bonds.

Hence the court ordered plaintiff to impound said documents U/Section 6 of the Stamp Act. Office was directed to put up note on stamp duty leviable. Accordingly office made calculation to pay Rs.44,998/-

Rs.44,998/- and Rs.29,998/- as stamp duty penalty on Exs.A1, A3 and A6 respectively. Aggrieved by this docket order dt.11.09.2017. it appears plaintiff preferred revision before Hon’ble High Court. She submitted that

CRP.No.6540/2017 was filed by her. She did not get any stay order in this

matter. This court gave one year time and thereby directed plaintiff to impound suit documents because there is no stay order. On one hand, plaintiff did not pay stamp duty penalty. At the stage of arguments, when the court posted the matter that because there is no stay, the matter will 5 Of 8OS.NO.310/14 be posted for Judgment on merits; learned advocate of plaintiff came forward requesting the court that if it is possible to send Exs.A1, A3 and

A6 to the District Registrar, to levy stamp duty they get ready. Because the stamp duty penalty levied by this court became heavy and burdensome. But plaintiff did not take such steps, On the other hand, plaintiff’s learned advocate also came forward and submitted arguments

because all three subject cheques are admitted by defendant that

they bear signatures of her husband. In the course of arguments learned advocate of plaintiff pointed out the admission given by

DW.1/defendant that Exs.A2, A4 and A5 three cheques bear signatures of her husband. Basing on this admission, he prayed for decree in the suit.

14.Since Exs.A1, A3 and A6 have to be levied with stamp duty and penalty; though there are marked inadvertently, they cannot be admitted in evidence and looked into by this court. Unless they are impounded they are not admissible in evidence. Plaintiff’s learned advocate also fairly conceded that said three receipts cum bonds may be kept aside and proceed to pass Judgment on merits basing on Exs.A2, A4 and A5 cheques. When Exs.A1, A3 and A6 are not considered, the question of limitation comes into play.

15.This suit was filed on 08.02.2014. According to plaintiff, she gave

Rs.1,50,000/- + Rs.1,50,000/- in June 2011 itself under three cheques and obtained Exs.A2 and A4 two cheques from Mr. Venugopal towards security. But two receipts pertaining to these amounts were executed on 13.08.2011 and 14.11.2011 under Exs.A1 and A3 respectively which save limitation. Unless Exs.A1 and A3 are brought on record by paying stamp duty, the limitation cannot be saved. In June 2011, plaintiff lent money under three cheques i.e., Rs.1,50,000/- + Rs.50,000/- + Rs.1,00,000/- to 6 Of 8OS.NO.310/14

Mr. Venugopal. Three cheques were not produced by plaintiff to prove that she had lent Rs.4,00,000/- in June 2011. But she produced that she obtained two cheques towards security under Exs.A2 and A4 for

Rs.1,50,000/- each. But PW.1/plaintiff admittedly deposed in the

cross examination that said two cheques were issued to her in

June 2011 itself towards security. When Exs.A2 and A4 were issued to plaintiff in June 2011 itself, she has to file suit basing on them within three years by June 2014 itself. But this suit was filed in August 2014. The court accepts the contention that suit transaction pertaining to dates 03.06.2011 and 11.06.2011 are both time barred by the date of this suit in the absence of two alleged receipts dt.13.08.2011 and 14.08.2011 unless they are brought on record with proper stamp duty condition.

Learned plaintiff counsel ignored this fact it appears by some inadvertence. That is the reason why he fairly conceded to pass Judgment on merits basing on admission of DW.1 on Exs.A2, A4 and A5 three cheques. There is admission of PW.1/plaintiff herself that Exs.A2 and A4 two cheques were obtained by her as issued by Mr. Venugopal in June 2011 itself. But suit was filed in August 2014. By then suit claim basing on these two cheques was time barred.

16.Coming to suit transaction dt. 15.12.2012, plaintiff is having another cheque for Rs.1 lakh and to this extent the suit can be decreed. Only this claim is within limitation. Plaintiff wasted one valuable year after passing docket order dt.11.09.2017 saying that Exs.A1, A3 and A6 are inadmissible unless stamp duty is paid. In October 2017 itself plaintiff ought to have taken the steps to send said three documents to the

District Registrar for impounding if the stamp duty penalty levied by this court is huge and burdensome on her. She cannot sleep over the matter and drag the same for more than one year on the pretext of preferring

CRP aggrieved by said Order without obtaining any stay order. This is an 7 Of 8OS.NO.310/14 old suit and further an identified case also. Hence the court was constrained to post the same for hearing arguments conditionally. Heard learned counsel of plaintiff only in this matter. Defendant side was not heard at all. But still the defendant’s contention that subject two cheques

Exs.A2 and A4 are found to be time barred in the light of specific statement given by PW.1/plaintiff that she obtained them in June 2011 itself.

17.In the absence of two receipts Exs.A1 and A3, the suit claim cannot be brought under limitation. Hence the suit is only being partly decreed.

18.RATE OF INTEREST: Three subject cheques are being considered for decreeing the suit. Out of them, two are found to be time barred because Exs.A1 and A3 two receipts could not be produced in evidence with proper stamp duty. Plaintiff sought interest @12% per annum and it can be granted from the date of last transaction i.e.,15.12.2012.

19.NATURE OF LIABILITY OF DEFENDANTS: Plaintiff sought decree against defendants 1 to 3 jointly. They are legal heirs of deceased borrower. They are liable only to the extent of estate of deceased borrower but not personally.

20.In the result, this suit is partly decreed for RS.1,00,000/- against defendants 1 to 3 to the extent of estate of deceased Mr. P. Venugopal lying in their hands with interest @12% per annum from last transaction

date 15.12.2012 till realization.

Typed to my voice recording by the Personal Assistant, corrected and

pronounced by me in the open Court on this the 26 th day of October 2018.

III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

8 Of 8OS.NO.310/14

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE PLAINTIFF :

PW1 : Smt. B. Sujatamma.

ON BEHALF OF THE DEFENDANTS :

DW1 : Smt. P. Bala.

EXHIBITS MARKED

ON BEHALF OF THE PLAINTIFF :

Ex.A1 -Original receipt dt. 13.08.2011. Ex.A2 -Original cheque bearing No.662199, dt. Nil for Rs.1,50,000/-. Ex.A3 -Original receipt dt. 14.08.2011. Ex.A4 -Original cheque bearing No.662200, dt. Nil for Rs.1,50,000/-. Ex.A5 -Original cheque bearing No.254872 dt.Nil for Rs.1,00,000/-. Ex.A6 -Receipt dt. 15.12.2012. Ex.A7 -Office copy of legal notice dt. 30.06.2014. Ex.A8 -Office copy of remainder notice dt. 30.06.2014. Ex.A9 -Reply notice dt. 22.07.2014.

ON BEHALF OF THE DEFENDANT :

NIL.

III SENIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.