R egd. No .PRA KA SA M /1 3/ 20 21 -2 02 3 R. N . I.N o .

APENG /2 004 /1 59 06
Pa ge s: 1 to 8 4

Law ummary
( Founder : Late Sri G.S. GUPTA)
FORTNIGHTLY
Dt.15-9-2023

(Estd: 1975)

2023 Vol.(3) Date of Publication 15-9-2023 PART -17

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PARt-17

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LAW SUMMARY

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 HONOURABLE THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
High Court of Andhra Pradesh

Born on 25th April 1964.

Enrolled as an Advocate on 18th October 1989 with the Bar Council of Delhi, and
subsequently with the Bar Council of Jammu and Kashmir. Designated as Senior Advocate
in 2011.

Appointed as Permanent Judge of High Court of Jammu and Kashmir on 8th March
2013.

Transferred as a Judge, High Court of Judicature at Bombay on 10th June 2022.

His Lordship was appointed as the Chief Justice of High Court of Andhra Pradesh on
24th July 2023 and sworn in as the Chief Justice of High Court of Andhra Pradesh
on 28th July 2023.

3
 HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
High Court of Telangana

Born on 13.04.1964 at Raipur, B.Sc and LLB. Enrolled as Advocate on July 12, 1988.
Practiced on Civil and Constitutional, Arbitration and Company matters in the High Court
of Madhya Pradesh at Jabalpur. Designated as Senior Advocate in April, 2007. Revised
the 5th and 6th Editions of Principles of Administrative Law by M.P.Jain and S.N.Jain
and 15th Edition of Principles of Statutory Interpretation by late Honourable Justice
G.P.Singh, Former Chief Justice of High Court of Madhya Pradesh.

Appointed as Additional Judge of the High Court of Madhya Pradesh on December,

29, 2009 and Permanent Judge on February 15th, 2011.

Transferred to High Court of Jammu and Kashmir and took oath as such on 20.09.2016.
Nominated as Chairman of Jammu and Kashmir State Judicial Academy on 07.06.2017.
Appointed as Acting Chief Justice of High Court of Jammu and Kashmir on 11.05.2018
and functioned as such upto 10.08.2018. Nominated as Executive Chairman of Jammu
and Kashmir State Legal Services Authority on 04.09.2018.

On transfer to Karnataka High Court, His Lordship took oath as Judge of Karnataka
High Court on 17.11.2018. His Lordship assumed charge as the Acting Chief Justice
of Karnataka High Court on 03.07.2022 and functioned as such upto 14.10.2022. Served
as President of Bangalore Mediation Centre, Arbitration and Conciliation Centre and
President of Karnataka Judicial Academy.

Appointed as Chief Justice, High Court for the State of Telangana on 19.07.2023 and
took oath of office on 23.07.2023.
4
Law ummary
( Founder : Late Sri G.S. GUPTA)
FORTNIGHTLY
(Estd: 1975)

PART -17 (15TH SEPTEMBER 2023)

Table Of Contents

Reports of A.P. High Court ............................................................................ 1 to 52

Reports of T.S. High Court ............................................................................ 1 to 20

Summary Recent Cases (SRC) ....................................................................... 1 to 2

Interested Subscribers can E-mail their Articles to

lawsummary@rediffmail.com

5
 NOMINAL - INDEX
Abhishek Vs. State of M.P. (SRC) 1
Amina Begum Vs. State of Telangana (SRC) 2
B.Prabhakar @ B.Prabhakar Naidu Vs. Hari Prasad (A.P.) 37
Balwantbhai Somabhai Bhandri Vs. Hiralal Somabhai Contractor (SRC) 1
Derha Vs. Vishal & Anr., (SRC) 1
Dhon Dubai Vs. Hanmantappa Bandappa Gandigudu. Lrs., (SRC) 1
Enagandula Venkateswarlu Vs. Erra Ram Shankar (Telangana) 11
K.Venkatachalam Chetty Vs. The State of A.P & Anr., (A.P.) 22
Kalavakollu Jyothi Vs. State of A.P. (A.P.) 9
Kethireddy Narayana Reddy Vs. Addagudi Shankaraiah (Telangana) 14
Kottakota Lakkappa Vs. B.Lakkappagari Chikkaiah (SRC) 2
Kubrabibi Vs. Oriental Insurance Co., Ltd., (SCR) 2
M/s.Visweswara Infrastructure Pvt. Ltd.,Vs.The TSI Corpn., Ltd., (SRC) 2
Potluri Lakshmi Rajeswari & Anr., Vs. Punjab National Bank& Ors. (A.P.) 1
R.Shiva Kumar Vs. Smt. R.Shivaranjani & Anr., (Telangana) 1
S.Ghousia Vs. Uppaluru Mohammad Yusuf & Ors., (A.P.) 31
S.Reddeiah Vs. The State of A.P., & Ors., (A.P.) 45
Sk.Ahmmad Vs. State of A.P., (SRC) 2
Satibir Singh Vs. State of Haryana (SRC) 1
Dyapa Nishitha Reddy & Ors., Vs. State of Telangana & Ors., (Telangana) 3
Union Territory of Ladakh Vs. Jammu & Kashmir National Conference (SRC) 1
United India Insurance Co Ltd Vs. V. Mukthabai & Ors (Telangana ) 9

SUBJECT - INDEX
AADHAR CARD - Citizen of India cannot be denied his/her statutory rights
for not possessing an Aadhar Card. (SRC) 2

CIVIL CONTEMPT - Litigants will be liable for “civil contempt” on willful breach
of their behalf of by their Advocate to the Court . (SRC) 1

CIVIL PROCEDURE CODE - REJECT THE PLAINT - Challenging the Order

in I.A., Appellant/Plaintiff in the suit, filed the present appeal - Defendant, filed an I.A.
under Order 7 Rule 10(1) of C.P.C. with a prayer to reject the plaint on the ground
that the plaint does not disclose cause of action.

HELD: Trial Court did not understand that I.A. is filed under wrong provision
of law - Trial Court simply allowed application only on the ground that the Plaintiff did
not deposit the suit costs - Impugned Order is wholly unsustainable under law and
it is liable to be set aside restoring the plaint on its file. (A.P.) 31

6
 Subject-Index 3
CIVIL PROCEDURE CODE, Or.1, Rl.10 - Civil Revision by Petitioners/ Plaintiffs
aggrieved by the Order of Trial Court in I.A. by which the request of the Petitioners
to implead Respondent Nos.2 to 13 as Defendants in O.S. was rejected.

HELD: If the suit between Petitioners/Plaintiffs and 1st Respondent is decided

without impleading the proposed parties and if the suit is decreed in favour of the
Petitioners, the immediate parties that will be affected by the said judgment are the
proposed Defendants - In Thomas Press (India) Limited v. Nanak Builders and Investors
Private Limited and Others, (2013) 5 SCC 397, the Hon'ble Apex Court made a categorical
observation that "transferee/purchaser may be impleaded in a pending suit for specific
performance prior agreement to sale/contract for sale filed by the buyer under the said
contract for sale against the original owner." - Civil Revision stands allowed.(Telangana) 14

CIVIL PROCEDURE CODE, Or.8, Rule 1-A(3) - The defendant should provide
sufficient reasons if they fail to file documents with the written statement while filing
an application in Or.8, Rule 1-A(3) of CPC. (SRC) 2

CONSTITUTION OF INDIA, Art.226 - Title disputes cannot be adjudicated upon

by the High Court in writ jurisdiction under Art.226 of Constitution of India, since the
writ proceedings are summary in nature. (SRC) 2

CRIMINAL PROCEDURE CODE, Sec.311 - The power u/Sec.311 of Cr.P.C

should be invoked when “....it is essential for the just decision of the case”.
(SRC) 1

CRIMINAL PROCEDURE CODE, Sec.482 - Criminal Petition seeking to quash

the criminal proceedings against Petitioner registered for the offence under Section 420
IPC.

HELD: Whether the possession was taken or not, as alleged in the complaint,
has to be established in a proper Forum i.e., in a Civil Court - Instead, 2nd Respondent
initiated present proceedings by giving a colour of a criminal offence - It does not meet
the strict standard of proof required to sustain a criminal accusation - Criminal petition
stands allowed and the proceedings against the Petitioner/A.1 in Crime stands quashed.
(A.P.) 22

CRIMINAL PROCEDURE CODE, Sec.482 - Criminal Petition seeking to quash

the proceedings against Petitioner/A1 in C.C. for the offence
u/Secs.420 and 423 read with 34 IPC.

HELD: Petitioner/A.1 executed a registered sale agreement-cum-GPA in favour

of A.2 and in turn A.2 executed a sale deed in favour of the 2nd respondent/de-facto
Complainant - Subsequently, 2nd Respondent sold the said property to L.W.2, who
7
4 Subject-Index
in turn issued issued a legal notice to the 2nd respondent about the fraud committed
by him contending he does not have title - 2nd Respondent in turn filed a criminal
complaint against the Petitioner/A.1 to A.4 with a view to pressurize the parties to settle
the dispute of payment of sale consideration.

No fraudulent intention of the Petitioner/A.1 to deceive the 2nd Respondent by

selling the property since there was another transaction between A.2 and the 2nd
Respondent with regard to the same subject property - Criminal petition stands allowed
and the proceedings in C.C. against the Petitioner/A.1 stand quashed. (A.P.) 45

CRIMINAL PROCEDURE CODE, Sec.482 - Criminal Petition by Petitioner/

Accused No.3 to quash the proceedings against her in C.C. - Charge sheet has been
filed against the petitioner and other accused for the offences under Sections 498-A,
406, 417, 323 and 506 of the Indian Penal Code and Sections 3 and 4 of Dowry
Prohibition Act, 1961.
HELD: Petitioner is the resident of USA and she is the sister-in-law of Respondent
No.2 - Petitioner was not in regular contact with her brother i.e., accused No.1 (husband
of Respondent No.2) - Respondent No.1-Police have not served notice under Section
41-A Cr.P.C. to the Petitioner and they have not given sufficient time to the Petitioner
to explain her case and on the other hand, in the charge sheet, her name was shown
as absconding – Petitioner was roped into the case with bald and general allegations
- Fit case to quash the proceedings against the Petitioner - Criminal Petition stands
allowed and the proceedings against the Petitioner/Accused No.3 in C.C. stand
quashed. (Telangana) 3

CRIMINAL PROCEDURE CODE, Sec.482 - The High Courts can quash an FIR
even if charge sheet was filed while the petition filed under Sec.482 Cr.P.C. was pending.
(SRC) 1

(INDIAN) EVIDENCE ACT, Sec.45 - Civil revision petition by the Petitioner

challenging the Order, rejecting the I.A. filed by the Petitioner in O.S.

HELD: No time limit can be fixed for filing applications under Section 45 of
the Indian Evidence Act, 1872 - It is within the discretion of the Court to consider,
if the application so filed, belatedly, is to be allowed or rejected, depending upon the
facts and circumstances of each case - Suit was filed in the year 2017 for recovery
of money based on promissory note - Application was filed in the year 2022 after
five years, after closure of evidence.
Defendant’s disputed signature on suit promissory note are not comparable with
his signatures on written statement or/and vakalat executed in the same suit, for expert
opinion - Civil revision stands dismissed. (A.P.) 37

(INDIAN) EVIDENCE ACT, Sec.45 r/w Sec.151 of CIVIL PROCEDURE CODE

8
 Subject-Index 5
- Civil Revision Petition by Petitioners/Defendants, challenging the Order passed in I.A.,
requesting the Court below to send the joint promissory note to the handwriting expert
for comparision with admitted signatures.

HELD: When a plea of fraud is made by claiming that a particular document

has been forged, trial Court ought not to have stood in the way of relevant evidence
being brought on record, even at the stage of adducing further evidence of defendants
- Opinion of the handwriting expert on the genuineness of the signatures of the defendants
on the subject joint promissory note, would be necessary to resolve the conflict between
the parties to the litigation - Civil Revision stands allowed - Let the joint promissory
note, dated 14.01.2015, be sent to handwriting expert along with the admitted signatures
of the defendants and with the age of INK, for his opinion, at the cost of the defendants.
(Telangana) 10

HINDU ADOPTIONS AND MAINTENANCE ACT, Sec.18(2)(A) - Family Court

Appeal - Respondent No.1/Wife and Respondent No.2/Minor son moved an application
before the Family Court invoking Section 18(2)(A) of Hindu Adoptions and Maintenance
Act seeking for a direction to the Appellant to pay them a sum of Rs.10,000/- each
towards monthly maintenance - Family Court through the impugned order granted a
sum of Rs.3,000/- per month each to Respondents – Hence, present appeal.

HELD: When a valuable property stands in the name of the parents of the
Appellant and when there is no capacity for the Respondents to maintain themselves,
the Appellant-Husband is bound to maintain the Respondents - Plea that he has to
maintain his parents cannot be appreciated–Appeal stands dismissed. (Telangana) 1

MOTOR VEHICLES ACT - Appeal by the Insurance Company aggrieved by

the Award of Motor Accidents Claims Tribunal – When deceased was going on his
motor cycle, a tractor came in a rash and negligent manner and hit the deceased -
While undergoing treatment, he was declared brain dead on the same day.

HELD: Evidence of the owner of the vehicle is clear that the vehicle is involved
in the accident - Mere delay in giving the complaint itself cannot be a ground to disentitle
the claimants from claiming the compensation - Court below had rightly held that
Insurance Company is liable to pay compensation - Appeal stands dismissed.
(Telangana) 9

MOTOR VEHICLES ACT - The insurance Company is not liable if the claimant
was travelling in the Trailer attached to the Tractor, which was not not insured though
Tractor was insured. (SRC) 1

MOTOR VEHICLES ACT - Where compensation is sought and even in the

absence of definite proof of income - The social status of deceased is to be kept
9
6 Subject-Index
in perspective where such persons are employed in unrecognized sector and the
national income, in any event, is required to be taken into consideration. (SRC) 2

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 - Criminal

appeal challenging the Judgment in Sessions Case - Petitioner was charged under
Section 8(c) r/w Section 20(b)(ii)(B) of the NDPS Act, for alleged possession of 3
Kgs. of Ganja.

HELD: Whenever there is a personal search, only compliance of Section 50

of the NDPS Act would arise - Presumption under Section 54 of the NDPS Act and
the presumption under Section 35 would arise after the prosecution discharged its burden
to prove the recovery of the contraband from the accused - Prosecution discharged
its burden about the recovery of contraband from the possession of the accused - Accused
had no semblance of say much less probable say to prove contrary - Evidence on
record squarely proves about the recovery of 3 Kgs. of Ganja from the possession of
the accused at the place of seizure - There is no minimum punishment when the quantity
of Ganja is lesser than the commercial quantity.

There is no minimum punishment when the quantity of Ganja is lesser than

the commercial quantity - Criminal Appeal is allowed in part, modifying the rigorous
imprisonment of 10 years imposed against the accused to that of four (04) years and
further modifying the fine of Rs.1,00,000/- to that of Rs.25,000/-. (A.P.) 9

The High Courts cannot refuse to follow its binding judgment on the ground
that a reference has been made against it to the larger Bench or a review is pending
against it. (SRC) 1

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND

ENFORCEMENT OF SECURITY INTEREST ACT, 2002, Sec.14 - Writ Petition by the
tenants in the property seeking declaration that they have been highhandedly dispossessed
by the Respondent-bank through an Advocate Commissioner appointed under the provisions
of SARFAESI Act.

HELD: When there is an effective alternative remedy the writ Court will not have
jurisdiction - Time and again the Hon’ble Supreme Court of India has clearly held that
the High Court should not entertain a writ petition under the provisions of the SARFAESI
Act as there are effective alternative remedies - Writ petition is held to be misconceived
and therefore liable to be dismissed. (A.P.) 1

SERVICE LAWS - The petitioner did not approach the authorities seeking a
promotion was not a suitable ground to deny the same. (SRC) 2

--X--
10
 LAW SUMMARY
2023 (3)
Andhra Pradesh High Court Reports
2023(3) L.S. 1 (A.P.) (D.B.)
IN THE HIGH COURT OF
ANDHRA PRADESH
Present
The Hon’ble Mr. Justice
D.V.S.S.Somayajulu &
The Hon’ble Mr. Justice
Duppala Venkata Ramana
Potluri Lakshmi Rajeswari
& Anr., ..Petitioners
Vs.
Punjab National Bank& Ors., ..Respondents
SECURITISATION AND RECON-
STRUCTION OF FINANCIAL ASSETS
AND ENFORCEMENT OF SECURITY
INTEREST ACT, 2002, Sec.14 - Writ
Petition by the tenants in the property
seeking declaration that they have been
highhandedly dispossessed by the
Respondent-bank through an Advocate
Commissioner appointed under the
provisions of SARFAESI Act.
HELD: When there is an effective
alternative remedy the writ Court will
not have jurisdiction - Time and again
the Hon’ble Supreme Court of India has
clearly held that the High Court should
not entertain a writ petition under the
provisions of the SARFAESI Act as there
are effective alternative remedies - Writ
W.P.No.17929/2023 Date:30-8-2023
11
petition is held to be misconceived and
therefore liable to be dismissed.
P.S.P. Suresh Kumar, Advocate for the
Petitioners.
Prudviraju Mudunuri, Advocate for the
respondents.
O R D E R
(per the Hon’ble Mr.Justice
D.V.S.S.Somayajulu)
This Writ Petition is filed by the
tenants in the property seeking declaration
that they have been highhandedly
dispossessed by the respondent-bank
through an Advocate Commissioner
appointed under the provisions of Section
14 of the The Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(for short “SARFAESI Act”) by the Chief
Judicial Magistrate, Machilipatnam.
2) The prayer is for a mandamus
declaring the action taken by the Bank
as highhanded.
3) This Court has heard Sri P.S.P.
Suresh Kumar, learned counsel for the
petitioners and Sri Prudviraju Mudunuri,
learned standing counsel for the 1st
respondent-Bank.
4) With the consent of both the learned
counsel the Writ Petition itself is taken up
for hearing since an objection was raised
2 LAW SUMMARY (A.P.) 2023(3)
as to the very maintainability of the writ to prevent the bank from taking over the
petition itself. possession of the property. Learned
standing counsel for the Bank points out
5) Sri P.S.P. Suresh Kumar, learned that in view of the judgments of the Hon’ble
counsel for the petitioners argued that the Supreme Court of India reported in Bajarang
petitioners are tenants of the property Shyamsunder Agarwal v. Central Bank
consisting of land and building in R.S.No.5/ of India1and the earlier judgment in Vishal
3, Plot No.10, bearing Door No.4-11-4A N. Kalsaria v. Bank of India a writ is
Gangadharapuram (V), Bommuluru Gram not proper remedy and the Court should
Panchayat, Krishna District. They state not interfere in matters of this nature,
that they have entered into a lease in the particularly under writ jurisdiction.
year 2013, which was valid for a period of
10 years and that they are in settled 7) The issues raised are set out in
peaceful possession of the property. It is the course of the arguments, which are
stated that the lease is existing prior to the reproduced earlier. The fact remains
mortgage of the property and that therefore that the rental agreement, dated 25.12.2013,
the highhanded action of the respondent- which is for a period of 10 years, has
bank intaking over the possession through not been registered. The petitioners are
an order of the Chief Judicial Magistrate, claiming to be in possession pursuant to
Machilipatnam, is contrary to law. Learned this. The documents filed along with the
counsel submits that since the petitioners writ petition do not show the alleged settled
are not the borrowers he cannot take any possession from 2013.
steps to protect his interest in the Debts
Recovery Tribunal and before the impugned 8) In respect of the question of law
action is taken this Court should come to this Court is of the opinion that Sections
the aid of the petitioners, who are in settled 106 (1) and 107 of the Transfer of Property
possession for more than a decade, and Act (for short “TP Act”) are to be noted:
that the Writ Petition should, therefore, be
Section 106 (1) of the TP Act is to
ordered.
the following effect:
6) Learned counsel for the respondent-
“106. Duration of certain leases in
Bank on the other hand submits that the
absence of written contract or local
writ is not maintainable. On the basis of
usage.—(1) In the absence of a
unregistered rental agreement dated
contract or local law or usage to the
25.12.2013 the petitioners are claiming to
contrary, a lease of immovable
be in possession and that the documents
property for agricultural or
filed are all of recent origin and do not show
manufacturing purposes shall be
the petitioners alleged possession from 2013
deemed to be a lease from year to
onwards. It is submitted that the unregistered
year, terminable, on the part of either
lease is created for the purpose of this
lessor or lessee, by six months’
litigation only. Therefore, learned counsel
notice; and a lease of immovable
submits that this is an engineered litigation 12
 Potluri Lakshmi Rajeswari & Anr., Vs. Punjab National Bank& Ors., 3
property for any other purpose shall 10) A reading of both these sections
be deemed to be a lease from month together makes it clear that Section 106
to month, terminable, on the part of of the TP Act deals with the duration
either lessor or lessee, by fifteen of certain leases in the absence of the
days’ notice.” written contract or local usage. Section 107
of the TP Act deals with leases, and the
9) Section 107 of the TP Act is to heading itself indicates “Leases How
the following effect: Made”. It is very clear that the lease
of immovable property from year to year
“107. Leases how made.—A lease
or a term exceeding one year or reserving
of immoveable property from year to
a yearly rent can only be made by a
year, or for any term exceeding one
registered instrument. All “other” leases
year, or reserving a yearly rent, can
can be made either by a registered
be made only by a registered
instrument or by an oral agreement
instrument.
accompanied by delivery of possession.
All other leases of immoveable Hence there can only be a registered lease
property may be made either by or an oral lease with delivery. Therefore,
a registered instrument or by oral it is clear that if there is a written lease,
agreement accompanied by delivery it has to be registered. If the lease is not
of possession. registered under the law, it carries its own
implications.
Where a lease of immoveable
property is made by a registered 11) In addition, for the purpose of
instrument, such instrument or, deciding the current dispute, Section 65A
where there are more instruments of the TP Act, which deals with the
than one, each such instrument shall mortgagers power to lease and Section 111
be executed by both the lessor and of the TP Act are necessary to be
the lessee: considered. They are reproduced hereunder:

Provided that the State Government 65A. Mortgagor’s pow er to

may from time to time, by
notification in the Official Gazette,
direct that leases of immoveable
property, other than leases from
year to year, or for any term
exceeding one year, or reserving a
yearly rent, or any class of such
leases, m ay be made by
unregistered instrument or by oral
agreement without delivery of
possession.”
13
lease.—(1) Subject to the provisions
of sub-section (2), a mortgagor, while
lawfully in possession of the
mortgaged property, shall have power
to make leases thereof which shall
be binding on the mortgagee.
(2)(a) Every such lease shall be such
as would be made in the ordinary
course of management of the property
concerned, and in accordance with
any local law, custom or usage.
4 LAW SUMMARY
(b)Every such lease shall reserve the
best rent that can reasonably be
obtained, and no premium shall be
paid or promised and no rent shall
be payable in advance.
(c)No such lease shall contain a
covenant for renewal.
(d)Every such lease shall take effect
from a date not later than six months
from the date on which it is made.
(e)In the case of a lease of buildings,
whether leased it or without the land
on which they stand, the duration of
the lease shall in no case exceed
three years, and the lease shall
contain a covenant for payment of
the rent and a condition of re-entry
on the rent not being paid within a
time therein specified.
(3)The provisions of sub-section (1)
apply only if and as far as a contrary
intention is not expressed in the
mortgage-deed; and the provisions
of sub-section
(2) may be varied or extended by the
mortgage-deed and, as so varied and
extended, shall, as far as may
be, operate in like manner and with
all like incidents, effects and
consequences, as if such variations
or extensions were contained in that
sub-section.
111. Determination of lease.—A
lease of immoveable property
determines— (a) by efflux of the time
limited thereby:
14
(A.P.) 2023(3)
(b)where such time is limited
conditionally on the happening of
some event—by the happening of
such event:
(c)where the interest of the lessor
in the property terminates on, or his
power to dispose of the same extends
only to, the happening of any event—
by the happening of such event:
(d)in case the interests of the lessee
and the lessor in the whole of the
property become vested at the same
time in one person in the same right:
(e)by express surrender; that is to
say, in case the lessee yields up
his interest under the lease to the
lessor, by m utual agreement
between them:
(f)by implied surrender:
(g)by forfeiture; that is to say, (1) in
case the lessee breaks an express
condition which provides that, on
breach thereof, the lessor may re-
enter; or
(2)in case the lessee renounces his
character as such by setting up a
title in a third person or by claiming
title in himself; or
(3)the lessee is adjudicated an
insolvent and the lease provides that
the lessor may re-enter on the
happening of such event; and in any
of these cases the lessor or his
transferee gives notice in writing to
the lessee of his intention to
determine the lease:
 Potluri Lakshmi Rajeswari & Anr., Vs. Punjab National Bank& Ors.,
(h)on the expiration of a notice to
determine the lease, or to quit, or
of intention to quit, the property
leased, duly given by one party to
the other.
12) As far as the law on the subject
of tenancy / SARFAESI Act is concerned
the 1st judgment that considered the
interplay between the provisions of the
SARFAESI Act, Tenancy Laws etc., is the
case reported in Harshad Govardhan
Sondagar v. International Assets
Reconstruction Co. Ltd.,3. In the opinion
of this Court for the current issue the
following are important:
28. A reading of sub-rules (1) and
(2) of Rule 8 of the Security Interest
(Enforcement) Rules, 2002 would
show that the possession notice will
have to be affixed on the outer door
or at the conspicuous place of
the property and also published, as
soon as possible but in any
case not later than seven days from
the date of taking possession, in
two leading newspapers, one in
vernacular language having sufficient
circulation in that locality, by the
authorised officer. At this stage, the
lessee of an immovable property will
have notice of the secured creditor
making efforts to take possession of
the secured assets of the borrower.
When, therefore, a lessee becomes
aware of the possession being taken
by the secured creditor, in respect
of the secured asset in respect
15
5
of which he is the lessee, from
the possession notice which is
delivered, affixed or published in sub-
rule (1) and sub- rule (2) of Rule 8
of the Security Interest (Enforcement)
Rules, 2002, he may either surrender
possession or resist the attempt of
the secured creditor to take the
possession of the secured asset by
producing before the authorised
officer proof that he was inducted as
a lessee prior to the creation of the
mortgage or that he was a lessee
under the mortgagor in accordance
with the provisions of Section 65-A
of the Transfer of Property Act and
that the lease does not stand
determined in accordance with
Section 111 of the Transfer of Property
Act. If the lessee surrenders
possession, the lease, even if valid,
gets determined in accordance with
clause (f) of Section 111 of the
Transfer of Property Act, but if he
resists the attempt of the secured
creditor to take possession, the
authorised officer cannot evict the
lessee by force but has to file an
application before the Chief
Metropolitan Magistrate or the
District Magistrate under
Section 14 of the SARFAESI
Act and state in the affidavit
accompanying the application, the
name and address of the person
claiming to be the lessee. When such
an application is filed, the Chief
Metropolitan Magistrate or the District
Magistrate will have to give a notice
and give an opportunity of hearing
to the person claiming to be the
6 LAW SUMMARY (A.P.) 2023(3)
lessee as well as to the secured as the case may be, in accordance
creditor, consistent with the principles with the settled principles of law.
of natural justice, and then take a (Emphasis supplied) Xxx
decision. If the Chief Metropolitan
Magistrate or the District Magistrate Xxx
is satisfied that there is a valid lease
36. We may now consider the
created before the mortgage or there
contention of the respondents that
is a valid lease created after the
some of the appellants have not
mortgage in accordance with the
produced any document to prove that
requirements of Section 65-A of the
they are bona fide lessees of the
Transfer of Property Act and that the
secured assets. We find that in the
lease has not been determined in
cases before us, the appellants have
accordance with the provisions of
relied on the written instruments or
Section 111 of the Transfer of Property
rent receipts issued by the landlord
Act, he cannot pass an order for
to the tenant. Section 107 of the
delivering possession of the secured
Transfer of Property Act provides that
asset to the secured creditor. But
a lease of immovable property from
in case he comes to the conclusion
year to year, or for any term
that there is in fact no valid lease
exceeding one year or reserving a
made either before creation of the
yearly rent, can be made “only by
mortgage or after creation of the
a registered instrument” and all other
mortgage satisfying the requirements
leases of immovable property may
of Section 65-A of the Transfer
be made either by a registered
of Property Act or that even though
instrument or by oral agreement
there was a valid lease, the lease
accompanied by delivery of
stands determined in accordance
possession. Hence, if any of the
with Section 111 of the Transfer of
appellants claim that they are entitled
Property Act, he can pass an order
to possession of a secured asset for
for delivering possession of the
any term exceeding one year from
secured asset to the secured creditor.
the date of the lease made in his
29. …… In our view, therefore, favour, he has
the decision of the Chief Metropolitan
Magistrate or the District Magistrate
can be challenged before the High to produce proof of execution of
Court under Articles 226 and 227 of a registered instrument in his favour
the Constitution by any aggrieved by the lessor. Where he does not
party and if such a challenge is produce proof of execution of a
made, the High Court can examine registered instrument in his favour
the decision of the Chief Metropolitan and instead relies on an unregistered
Magistrate or the District Magistrate, instrum ent or oral agreement
16
 Potluri Lakshmi Rajeswari & Anr., Vs. Punjab National Bank& Ors., 7
accompanied by delivery of non-registration of deed will not make
possession, the Chief Metropolitan the lease itself nugatory. If no written
Magistrate or the District lease deed exists, then such tenants
Magistrate, as the case may be, will are required to prove that they have
have to come to the conclusion been in occupation of the premises
that he is not entitled to the as tenants by producing such
possession of the secured asset evidence in the proceedings
for more than a year from the date under Section 14 of the
of the instrument or from the date SARFAESI Act before the learned
of delivery of possession in his Magistrate. Further, in terms of
favour by the landlord. (Emphasis Section 55(2) of the special law in
supplied) the instant case, which is the Rent
Control Act, the onus to get such
13) The next important judgment is a deed registered is on the landlord.
Vishal N. Kalsaria case (2 supra). In the light of the same, neither can
Paragraph 30 of this judgment is relevant the landlord nor the banks be
for the purpose of this case. permitted to exploit the fact of non-
registration of the tenancy deed
“30. The issue of determination of
against the tenant.”
tenancy is also one which is well
settled. While Section 106 of the 14) The later judgment on the subject
Transfer of Property Act, 1882 does is Bajrang Shyamsunder Agarwal case
provide for registration of leases which (1 supra). This is a judgment of three
are created on a year-to-year basis, Judges of the Hon’ble Supreme Court of
what needs to be remembered is the India. It also deals with an oral lease /
effect of non-registration, or the oral agreement creating tenancy. The
creation of tenancy by way of an oral fact show that Chief Metropolitan
agreement. According to Section 106 Magistrate, on the application of the Bank
of the Transfer of Property Act, 1882, allowed Section 14 application on
a monthly tenancy shall be deemed 09.03.2012 directing that the possession
to be a tenancy from month to month of the secured asset should be taken
and must be registered if it is reduced over. The tenant also preferred an
into writing. The Transfer of Property application before the Chief Metropolitan
Act, however, remains silent on the Magistrate, as can be seen from paragraph
position of law in cases where the 6 of the reported judgment, which is
agreement is not reduced into writing. rejected. Thereafter, the matter went to the
If the two parties are executing their Hon’ble Supreme Court of India and after
rights and liabilities in the nature of considering the law on the subject,
a landlord-tenant relationship and if including the two judgments mentioned
regular rent is being paid and earlier, the following conclusions are
accepted, then the mere factum of reached by the Hon’ble Supreme Court
17
8 LAW SUMMARY
of India:
“24.1. If a valid tenancy under law
is in existence even prior to the
creation of the mortgage, the tenant’s
possession cannot be disturbed by
the secured creditor by taking
possession of the property. The lease
has to be determined in accordance
with Section 111 of the TP Act for
determination of leases. As the
existence of a prior existing lease
inevitably affects the risk undertaken
by the bank while providing the loan,
it is expected of banks/creditors to
have conducted a standard due
diligence in this regard. Where the
bank has proceeded to accept such
a property as mortgage, it will be
presumed that it has consented to
the risk that comes as a consequence
of the existing tenancy. In such a
situation, the rights of a rightful tenant
cannot be compromised under the
SARFAESI Act proceedings.
If a tenancy under law comes into
existence after the creation of a mortgage,
but prior to the issuance of notice under
Section 13(2) of the SARFAESI Act, it has
to satisfy the conditions of Section 65-A
of the TP Act.
In any case, if any of the tenants
claim that he is entitled to possession of
a secured asset for a term of more
than a year, it has to be supported by
the execution of a registered instrument.
In the absence of a registered instrument,
if the tenant relies on an unregistered
instrument or an oral agreement
accompanied by delivery of possession, the 18
(A.P.) 2023(3)
tenant is not entitled to possession of
the secured asset for more than the period
prescribed under Section 107 of the TP
Act.”
15) It was also noticed by the Hon’ble
Supreme Court of India that the Civil Court
(Small Cause Court) entertained a case
filed by the tenant and passed an ex parte
order against the landlord pertaining to the
tenancy. Ultimately, in paragraph 35 it was
held that the absolute primacy of the Rent
Acts, as held in the previous judgments,
is not the correct position of the law. It
was also held that the tenant- in-sufferance
viz., a person occupying the premises after
the determination of the lease does not
have any legal right and is akin to
trespassers.
16) The question that arises, therefore,
in the light of this case law is that whether
the writ petition can be maintained before
this Court and whether the tenant / writ
petitioner is entitled to the relief.
17) The law on the subject is sufficiently
clear, when there is an effective alternative
remedy the writ Court will not have
jurisdiction. The Hon’ble Supreme Court of
India has in the course of these judgments
permitted and in fact allowed the tenants
to approach the jurisdictional Magistrate /
District Magistrate before whom an
application is filed under Section 14 and
seek a determination of their status / claim.
In the case on hand, this Court is not,
therefore, pronouncing anything on the
merits of the matter. It is clearly visible from
the case laws cited above, which are
judgments of the Hon’ble Supreme Court
 Kalavakollu Jyothi Vs. State of A.P. 9
of India itself that a tenant has been given 2023(3) L.S. 9 (A.P.)
an opportunity by the Hon’ble Supreme
Court to India of vindicating his / her stand IN THE HIGH COURT OF
before the jurisdictional Magistrate / District ANDHRA PRADESH
Magistrate. The challenge before the High
Court can only be after the decision of the Present
Magistrate / District Magistrate. This is clear The Hon’ble Mr. Justice
from the judgments of the Hon’ble Supreme A.V. Ravindra Babu
Court of India cited earlier.
Kalavakollu Jyothi ..Appellant
18) Since the judgments of the Hon’ble Vs.
Supreme Court of India are binding and State of A.P. ..Respondent
in view of the settled position of law this
Court is of the firm opinion that the tenant NARCOTIC DRUGS AND
has approached this Court wrongly. The PSYCHOTROPIC SUBSTANCE ACT, 1985
writ itself is misconceived. Time and again - Criminal appeal challenging the
the Hon’ble Supreme Court of India Judgment in Sessions Case - Petitioner
has clearly held that the High Court should was charged under Section 8(c) r/w
not entertain the writ petition under the Section 20(b)(ii)(B) of the NDPS Act, for
provisions of the SARFAESI Act as there alleged possession of 3 Kgs. of Ganja.
are effective alternative remedies. For this
reason also the writ petition is held to be
misconceived and therefore liable to be HELD: Whenever there is a
dismissed. personal search, only compliance of
Section 50 of the NDPS Act would arise
- Presumption under Section 54 of the
NDPS Act and the presumption under
19) Accordingly, the Writ Petition is
Section 35 would arise after the
dismissed. No order as to costs.
prosecution discharged its burden to
20) Consequently, Miscellaneous prove the recovery of the contraband
Applications pending, if any, shall also stand from the accused - Prosecution
dismissed. discharged its burden about the
recovery of contraband from the
possession of the accused - Accused
had no semblance of say much less
--X-- probable say to prove contrary -
Evidence on record squarely proves
about the recovery of 3 Kgs. of Ganja
from the possession of the accused at
the place of seizure - There is no

19 Crl.A.No.1217/10 Date: 1-9-2023

10 LAW SUMMARY (A.P.) 2023(3)
minimum punishment when the quantity Procedure Code (“Cr.P.C.” for short) and
of Ganja is lesser than the commercial after questioning the accused about the
quantity. quantum of sentence, sentenced her to
undergo rigorous imprisonment for 10 years
There is no minimum and to pay a fine of Rs.1,00,000/-, in default
punishment when the quantity of Ganja to suffer simple imprisonment for two years.
is lesser than the commercial quantity Felt aggrieved of the same, the unsuccessful
- Criminal Appeal is allowed in part, accused, filed the present Criminal Appeal.
modifying the rigorous imprisonment
of 10 years imposed against the accused 4) The case of the prosecution, in
to that of four (04) years and further brief, as set out in the charge sheet
modifying the fine of Rs.1,00,000/- to pertaining to PR.No.20/2010-11 of Prohibition
that of Rs.25,000/-. & Excise Station, Guntur, is as follows:

(i) The accused is resident of

A. Rama Krishna,Advocate for the Appellant
representing Sri K. Arjun Chowdary.
Public Prosecutor, Advocate for the
Respondent
J U D G M E N T
Challenging the judgment, dated
14.10.2010 in Sessions Case No.6 of 2010
(NDPS Act), on the file of I Additional
Sessions Judge, Guntur, the unsuccessful
accused filed the present Criminal Appeal.
2) The parties to this Criminal Appeal
will hereinafter be referred to as described
before the trial Court for the sake of
convenience.
3) The unsuccessful accused faced
charge under Section 8(c) r/w Section
20(b)(ii)(B) of the Narcotic Drugs and
Psychotropic Substance Act, 1985 (“NDPS
Act” for short) for alleged possession of 3
Kgs. of Ganja on 12.06.2010. The learned
I Additional Sessions Judge, Guntur on
conclusion of the trial, found the accused
guilty of the charge, convicted her under
Section 235(2) of the Code of Criminal
20
Venigandla, Pedakakani Mandal. The place
of offence is located at the stones heap
behind Milk Society, Venigandla, which is
situated on the left side of the road that
leads from Pedakakani to Venigandla.
(ii) On 12.06.2010 L.W.3-Shaik Syda,
Prohibition & Excise Head Constable,
Enforcement, Guntur, L.W.4-P.V. Seshaiah,
Prohibition & Excise Sub Inspector,
Enforcement, Guntur and L.W.5-N.
Thirupathiah, Prohibition & Excise Inspector,
Enforcement, Guntur, conducted patrolling
duty to detect the Prohibition & Excise
Offences. At about 1-00 p.m., they reached
the place of offence i.e., the stones heap
behind Milk Society, Venigandla, which is
situated on the left side of the road that
leads from Pedakakani to Venigandla and
found the accused in possession of white
colour plastic gunny bag at her feet. On
seeing the excise officials, the accused
tried to escape. The excise officials detained
her with the help of staff. On questioning,
the accused revealed that the gunny bag
contains Ganja. Then, L.W.5 sent L.W.3
to bring mediators. After 20 minutes, L.W.3
 Kalavakollu Jyothi
brought L.W.1-D. Srinivasa Rao, V.R.O., In-
charge of Venigandla and L.W.2-B. Suresh
Kumar, Village Secretary, Venigandla, to
act as mediators. The accused revealed
her identity particulars on questioning about
the commission of offence. The Prohibition
& Excise Inspector, Enforcement, Guntur-
L.W.5, has intimated to the accused about
the procedure under Section 50 of the
N.D.P.S. Act, for which the accused
expressed her unwillingness for search
before a Gazetted Officer. Then, L.W.5
secured the weighing instrument through
L.W.4. Then they opened the gunny bag
and found leaves, flowers, barks, seeds
along with dry Ganja. On weighing, it was
found to be 3 Kgs. of Ganja. L.W.5-Prohibition
& Excise Inspector, separately drawn 100
grams of Ganja into a separate packet,
sealed and affixed identity slips to the
samples in gunny bag. He seized the same
and arrested the accused under the cover
of mahazarnama. L.W.6-G. Dwarakanath,
Prohibition & Excise Inspector, registered
the mediators report vide PR.No.20 of 2010-
11 under Section 8(c) r/w 20 (b)(ii) (B) of
N.D.P.S. Act, 1985 and forwarded the
accused to the remand. The sample was
sent to the chemical analysis and the
analyst opined that it is of Ganja. Hence,
the accused rendered herself liable for
punishment under the above provision of
law.
5) The learned I Additional Sessions
Judge, Guntur, took cognizance of the case
under the above provisions of law. After
appearance of the accused and after
compliance of Section 207 of Cr.P.C., the
learned I Additional Sessions Judge, Guntur,
framed charge under Section 8(c) r/w
21
Vs. State of A.P. 11
20(b(ii)(B) of N.D.P.S Act against the
accused, explained to her in Telugu, for
which she pleaded not guilty and claimed
to be tried.
6) To bring home the guilt against the
accused, the prosecution, during the course
of trial, examined P.W.1 to P.W.3 and got
marked Ex.P.1 to Ex.P.7 and M.O.1 and
M.O.2. After closure of the evidence of
prosecution, the accused was examined
under Section 313 of Cr.P.C. with reference
to the incriminating circumstances
appearing in the evidence let in by the
prosecution, for which she denied the same
and she stated that she has no defence
witnesses and she has nothing to say.
7) The learned I Additional Sessions
Judge, Guntur, on hearing both sides and
on considering the oral as well as the
documentary evidence, found the accused
guilty of the charge. After questioning her
about the quantum of sentence, the learned
I Additional Sessions Judge, Guntur,
sentenced her to suffer rigorous
imprisonment for 10 years and to pay a
fine of Rs.1,00,000/-, in default to suffer
simple imprisonment for two years.
8) Now, in deciding this Criminal
Appeal, the points for determination are as
follows:
(1)Whether the prosecution proved
before the trial Court that the accused
was found in possession of 3 Kgs.
of Ganja on 12.06.2010 at 1-00 p.m.,
in contravention of the provisions of
NDPS Act?
(2)Whether the prosecution before
12 LAW SUMMARY (A.P.) 2023(3)
the trial Court proved the charge after 15 minutes. The accused was informed
against the accused beyond about her right under Section 50 of the
reasonable doubt? NDPS Act, but she declined to avail. Then,
they opened the Ganja bag and found
(3)Whether the judgment, dated different parts of the Ganja plants in the
14.10.2010 is sustainable under law bundle. Then he deputed Prohibition and
and facts and whether there are any Excise Sub Inspector, P.V. Seshaiah to
grounds to interfere with the same? secure a weighing instrument. He secured
the weighing instrument. They weighed and
POINT NOS.1 TO 3:-
found 3 Kgs of Ganja. The accused revealed
9) Turning to the evidence of P.W.1, her identity. He lifted a sample of 100 grams
he is the then VRO, Venigandla. According from the bundle of Ganja. M.O.1 is the
to him, he knows the accused. On sample. He attached to identity slips with
12.06.2010 excise officials apprehended the his signature and seal and signatures of
accused for possession of Ganja. Inspector, the mediators and thumb impression of the
Prohibition & Excise and Sub Inspector accused on the sample. Ex.P.2 is the
came on a Jeep to their Panchayat Office photograph of the bundle. Then he arrested
at about 1-10 noon and took him to the accused and seized the property under
Venigandla, besides Milk Society. Then they Ex.P.1 and handed over the same to
found a bundle of Ganja. It was weighed Inspector, Prohibition & Excise, Guntur.
and it was found 3 Kgs. 100 grams of Ganja
11) P.W.3 is the then Prohibition &
was lifted for sample and sample was
Excise Inspector, who registered the FIR.
packed. Ex.P.1 is the panchanama in which
According to him, on 12.06.2010 at 3-30
he and others signed. M.O.1 is sample.
p.m., excise officials attended police station
Ex.P.2 is the photograph of bundle of Ganja
and handed over mediators report (Ex.P.1),
bag found by them. Ex.P.1 proceedings
the accused, the contraband and the
took place for one hour from 1-30 noon.
samples. Then he registered the mediators
They found different parts of Ganja plants
report as a case in Crime No.20/2010-11
in Ex.P.2 bundle.
and issued FIR. He also sent the accused
10) P.W.2, the then Prohibition & to the Court for remand. Ex.P.3 is the FIR.
Excise Inspector, deposed that on He forwarded the samples to the chemical
12.06.2010 at 1-00 noon, they found the examiner through the I Additional District
accused setting near heap of stones with Judge, Guntur. The chemical examiner sent
a bundle, behind Milk Society, Venigandla. his report under Ex.P.4. Ex.P.6 is the letter
The accused got perturbed on seeing them. of advice. Chemical examiner report revealed
They detained her. She revealed about her that the sample is of Ganja. The photographs
identity and that gunny bag contains Ganja. were taken at the time of samples. M.O.2
Then he sent Head Constable to secure is the representative sample. Ex.P.7 is the
the mediators. The Head Constable secured inventory proceedings along with property.
P.W.1 and the village servant of Venigandla
22 12) Sri A. Rama Krishna, learned
 Kalavakollu Jyothi
counsel, representing the learned counsel
for the appellant Sri Kolluri Arjun Chowdary,
would contend that there is a serious
violation of Section 50(4) of the NDPS Act.
The case of the prosecution is that the
accused was found in possession of 3 Kgs.
of Ganja in the gunny bag. The prosecution
miserably failed to follow the mandatory
provisions of Section 50 of the NDPS Act.
The prosecution did not secure the presence
of any Gazetted Officer to witness the
recovery. Apart from this, the accused is
a female. The raid party consists of only
male members. No female staff was present
in the raid party. According to Section 50(4)
of the NDPS Act, whenever the search of
a person is required and the person is of
female, search shall be conducted by
female. Therefore, there is a serious violation
of Section 50(4) of the NDPS Act. Apart
from this, even communication to the
accused about the proposed compliance
of Section 50 of the NDPS Act is not done
properly. In support of his contentions, he
would rely upon the decisions in (1) Dinesh
Palyekar vs. State of Goa2007 CRI.L.J.
106 (2) Sangeeta Das Alias Savita Das vs.
State of Chhattisgarh AIR OnLine 2020 Chh
289, (3) State of Punjab vs. Surinder Rani
Alias Chhindi (2000) 10 Supreme Court
Cases 429 and (4) Krishna Chand vs. State
of Himachal Pradesh AIR 2017 Supreme
Court 3751.
13) The learned counsel for the
appellant would further contend that P.W.3
is a stock mediator, who used to support
the case of the prosecution whenever he
cited as a witness and the evidence of
P.W.1 and P.W.2 suffers with inconsistency
and failure to follow the mandatory provisions
23
Vs. State of A.P. 13
of NDPS Act enables the accused claim
of acquittal. The learned I Additional
Sessions Judge, Guntur, did not appreciate
the evidence properly. P.W.1 to P.W.3 are
the interested witnesses and their evidence
cannot be believed. He would further submit
that the accused is entitled for acquittal.
14) Sri N. Sravan Kumar, learned
Special Assist. to the Public Prosecutor,
would contend that the recovery of
contraband was from the gunny bag of the
accused. There was no personal search of
the accused. So, the compliance of Section
50 of the NDPS Act was not necessary.
Though Section 50(4) contemplates the
search of a female person shall be by a
female officer, but there is no search of the
accused by the excise party. When Section
50 of the NDPS Act has no application,
as the contraband was recovered from the
gunny bag of the accused cannot contend
that search was not conducted by a female
officer. He would further submit that the
evidence of P.W.1 and P.W.2 is consistent
thoroughly and the prosecution established
the charge against the accused beyond
reasonable doubt, as such, the appeal is
liable to be dismissed.
15) Sri A. Rama Krishna, learned
counsel, representing the learned counsel
for the appellant, would submit during the
course of reply that after conviction and
sentence by the learned I Additional
Sessions Judge, Guntur, the accused
underwent imprisonment for a period of two
years and after that the bail was granted
by the Court and it may be taken into
consideration.
14
16) The substance of the allegation in
the case of the prosecution is that the
accused was found in possession of 3 Kgs.
of Ganja in a gunny bag, near the stones
heap behind Milk Society, Venigandla at
about 1-00 p.m. on 12.06.2010 and that
the police lifted sample of 100 grams from
the total extent of 3 Kgs. and that the
sample was sent to chemical analysis. It
proved that it is of Ganja. So, the
prosecution claimed that the gunny bag
which was in possession of the accused
was searched and it contained 3 Kgs. of
Ganja. The prosecution did not allege either
from Ex.P.1 or from the contents of the
charge sheet that there was a recovery of
Ganja on search of the person of the
accused.
17) In the light of the contentions
advanced by the learned counsel for the
appellant, now it becomes necessary to
deal with as to whether compliance of
Section 50 of the NDPS Act is necessary
and if so, it is complied by the investigating
officer. For better appreciation, it is pertinent
to refer here Section 50 of the NDPS Act.
It runs as follows:
50. Conditions under which search
of persons shall be conducted.—
(1)When any officer duly authorised
under section 42 is about to search
any person under the provisions of
section 41, section 42 or section 43,
he shall, if such person so requires,
take such person without
unnecessary delay to the nearest
Gazetted Officer of any of the
departments mentioned in section
42 or to the nearest Magistrate.
LAW SUMMARY (A.P.) 2023(3)
(2) If such requisition is made,
the officer may detain the person
until he can bring him before the
Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the
Magistrate before whom any such
person is brought shall, if he sees
no reasonable ground for search,
forthwith discharge the person but
otherwise shall direct that search be
made.
(4)No female shall be searched by
anyone excepting a female.
[(5) When an officer duly authorised
under section 42 has reason to
believe that it is not possible to take
the person to be searched to the
nearest Gazetted Officer or
Magistrate without the possibility of
the person to be searched parting
with possession of any narcotic drug
or psychotropic substance, or
controlled substance or article or
document, he may, instead of taking
such person to the nearest Gazetted
Officer or Magistrate, proceed to
search the person as provided under
section 100 of the Code of Criminal
Procedure, 1973 (2 of 1974).
(6) After a search is conducted under
sub-section (5), the officer shall record
the reasons for such belief which
necessitated such search and within
seventy-two hours send a copy
thereof to his immediate official
superior.]
24
 Kalavakollu Jyothi
18) A close perusal of Section 50 of
the Act means that if the arrested person
requires that he should be searched before
a Gazetted Officer or a Magistrate, the
empowering officer shall take him to the
Gazetted Officer or Magistrate. The law is
well settled with regard to Section 50 of the
Act. It has no application when there is no
personal search of the accused. At this
juncture, this Court would like to refer here
the well established legal precedents under
Section 50 of the Act.
19) In Bodaband Sundar Singh vs.
State of A.P. 2001(2) ALD (Crl.) 928 (AP),
there was a case where the investigating
agency found contraband in possession of
a box and zip bag of the accused. The trial
court recorded conviction against the
accused. Then, the matter went in appeal
before the High Court of A.P., at Hyderabad.
The High Court of A.P. referred various
decisions and held that Section 50 of the
N.D.P.S. Act would come into play only in
the case of a search of a person as
distinguished from search of any place etc.
The High Court of A.P. in arriving at such
a conclusion relied on a decision of the Hon
ble Supreme Court in Kaleme Thumba vs.
State of Maharashtra and further the
Constitutional Bench decision of the Hon
ble Supreme Court in State of Punjab vs.
Baladev Singh(1999) 6 SCC 172. The High
Court of A.P. by following the above said
decisions held that the search of a person
indicates search of the body of the person
but not other belongings like hand bags,
suitcases, etc., as such when there is search
of a person, then only the procedure
contemplated under Section 50 of the Act
has to be resorted to.
25
Vs. State of A.P. 15
20) In Saikou Jabbi vs. State of
Maharashtra in Criminal Appeal No.103
of 20032004 (14) ILD 271, the Hon ble
Supreme Court dealing with Section 50 of
the Act and also by relying upon the earlier
decisions in Kaleme Thumba vs. State of
Maharashtra and Baladev Singh (2 supra),
held that language of Section 50 is implicitly
clear that the search has to be in relation
to a person as contrasted to search of
premises and is not applicable to other
types of search.
21) The Hon ble Supreme Court in State
of Haryana v.Jarnail Singh and others
AIR 2004 Supreme Court 2491 also by
following earlier decisions reiterated that
Section 50 of the N.D.P.S. Act has no
application when the search of a Tanker
was conducted because it was not a
personal search.
22) Apart from this, the Hon ble
Supreme Court in 2014(1) ALD (Crl.) 909
(SC) had an occasion to refer the
Constitutional Bench decision in State of
Punjab vs. Baladev Singh (2 supra)
equivalent to AIR 49 SC 2278. The Hon
ble Supreme Court extracted the
observations in Baladevi Singh’s case (2
supra) as follows:
(1) That when an empowered
officer or a duly authorized officer
acting on prior information is about
to search a person, it is imperative
for him to inform the person
concerned of his right under sub-
section (1) of Section 50 being taken
to the neared Gazetted Officer or to
the nearest Magistrate for making
16 LAW SUMMARY
the search. However, such information
may not necessarily be in writing.
(2) That failure to inform the person
concerned about the existence of
his right to be searched before a
Gazetted officer or a Magistrate would
cause prejudice to an accused.
(3)That a search made by an
empowered officer, on prior
information, without informing the
person of his right that if he so
requires, he shall be taken before a
gazette officer or a Magistrate for
search and in case he so opts, failure
to conduct his search before a
gazette officer or a Magistrate, may
not vitiate the trial but would render
the recovery of the illicit article
suspect and vitiate the conviction and
sentence of an accused, where the
conviction has been recorded only
on the basis of the possession of
the illicit article, recovered from his
person, during a search conducted
in violation of the provisions of Section
50 of the Act.
23) Therefore, it is very clear that non-
following of Section 50 of the NDPS Act
may not vitiate the trial but would render
the recovery of illicit article suspect and
vitiate the conviction and sentence. Coming
to the case on hand, Ganja is said to be
recovered from the gunny bag of the accused,
as such, there is no violation of Section
50 of the Act.
24) Now, coming to the case of the
prosecution, Ex.P.1 whispers that after
securing the presence of P.W.1 when P.W.2
26
(A.P.) 2023(3)
claimed to have asked the accused whether
she would like to be searched before the
Gazetted Officer, she declined for doing so.
It is to be noticed that as this Court already
pointed out there was no personal search
of the accused, as such, in view of thesettled
legal position as above, compliance of
Section 50 of the NDPS Act is not
necessary. However, P.W.2 appears to have
posed a question to the accused under an
erroneous imprison that he has to comply
Section 50 of the Act, for which the accused
expressed her unwillingness for search
before the Gazetted Officer. The erroneous
impression formed by P.W.2 does not create
any favourable circumstances to the accused
to claim the compliance of Section 50 of
the Act is mandatory.
25) As this Court already pointed out,
in the light of settled legal position as above,
absolutely, whenever there was a personal
search, only compliance of Section 50 of
the NDPS Act would arise. There is no
dispute that there was no personal search
of the accused. On the other hand, the
case of the prosecution was that the
accused was in possession of a gunny bag
and gunny bag was searched. Hence,
absolutely, this Court is of the considered
view that the compliance of Section 50 of
the NDPS Act, in the light of the facts and
circumstances as referred to above, was
not at all necessary and the investigating
officer was not at all supposed to comply
it.
26) Now, the crucial contention of the
accused is that under Section 50(4) of the
NDPS Act whenever a female is to be
searched, it is to be done by a female
 Kalavakollu Jyothi
police officer and as the raid party was
not with any female excise officials, the
conviction is vitiated.
27) Now, this Court would like to deal
with the citations relied upon by the learned
counsel for the appellant. In Dinesh
Palyerkar’s case (1 supra), the investigating
officer intimated to accused about his right
to be searched before the Gazetted Officer
or Magistrate. The Hon ble Supreme Court
held that mere statement that he is being
searched before such Officer is not at all
sufficient. What is necessary was that the
accused (suspect) should be made aware
of the existence of his right to be searched
in the presence of one of the officers named
in the section itself. The facts in Dinesh
Palyerkar’s case (1 supra) are such that
there was no proper compliance of Section
50 of the NDPS Act, though its compliance
was mandatory. In the present case
compliance of Section 50 of the Act is not
at all necessary, as such, the above said
decision is of no use to the defence of the
appellant.
28) Turning to Sangeeta Das’s case (2
supra), the male investigating officer made
search of female accused and found Ganja
in her possession. The Chhattisgarh High
Court dealing with Section 50(4) of the NDPS
Act providing that no female shall be
searched by anyone excepting a female
and relying upon Punjab vs. Surinder
Rani alias Chhidi [(2000) 10 SCC 429]
held that search is vitiated.
29) Turning to Surinder Rani alias
Chhindi’s case (3 supra), the Hon ble
27
Vs. State of A.P. 17
Supreme Court dealt with a situation that
5.990 Kgs. opium was found when her
person was searched. Apart from this, there
was no female at the time of search. Hence,
the Hon ble Supreme Court found favour
with the case of the defence and held that
the search is vitiated.
30) Coming to the present case on
hand, firstly, Section 50 of the NDPS Act
has no application whatsoever because there
was no personal search of the accused.
Neither Ex.P.1 nor the evidence of P.W.1
and P.W.2 disclose that the accused was
searched personally. Even it is not the case
of the prosecution that on personal search
of the accused, Ganja was recovered. As
held by the Hon ble Supreme Court, Section
50 of the NDPS Act has no application
when the body of the accused was not
searched. Hence, when the compliance of
Section 50 of the Act is not necessary in
this case and there is no personal search
of the accused, the decisions of Sangeeta
Das alias Savita Das (2 supra) and Surinder
Rani alias Chhindi (3 supra) are of no use
to the appellant.
31) Turning to another decision in
Krishan Chand’s case (4 supra), the facts
were that the accused was found in
possession of 7 Kgs. of charas while he
was carrying it and police officials in the
morning effected recovery without joining
any independent witnesses. Under the above
said circumstances, the Hon ble Supreme
Court found favour with the defence of the
accused.
32) Coming to the present case on
18 LAW SUMMARY (A.P.) 2023(3)
hand, P.W.1 is no other than an independent any illegality or irregularity in arresting
witness. The case of the prosecution is that the accused with reference to Section
on spotting the accused, P.W.2 secured 46 of the Code of Criminal Procedure.
the persons of P.W.1 and another as The proviso to Section 46
mediators. So, the factual matrix in Krishan contemplates that where a woman
Chand’s case (4 supra) cannot be made is to be arrested unless the
applicable to the present case on hand. circum stances indicate to the
contrary her submission to custody
33) As the prosecution did not prove on an oral intimation of arrest shall
the presence of the male members in the be presum ed and unless the
raid party, this Court with extra care and circumstances otherwise requires or
caution looked into as to whether the arrest unless the police officer is a female,
of the accused was prejudiced in any way. the police officer shall not touch the
Section 46 of the Code of Criminal person of the woman for making her
Procedure runs as follows: arrest. It is not the case of the
accused before P.W.2 that he violated
46. Arrest how made.
Section 46 proviso. So, the statutory
(1)In making an arrest the police presumption under Section 46 proviso
officer or other person making the is that the accused submitted herself
same shall actually touch or confine to the custody for arrest on oral
the body of the person to be arrested, intimation of arrest. Though this
unless there be a submission to the aspect was not raised by the
custody by word or action. appellant during the course of trial
or in the appeal, but as there were
(2)If such person forcibly resists the no female members in the raid party,
endeavour to arrest him, or attempts this Court has examined the issue
to evade the arrest, such police officer and did not find anything whatsoever
or other person may use all means to say that the arrest is vitiated.
necessary to effect the arrest.
34) Now, it is a matter of appreciation
(3)Nothing in this section gives a as to whether the evidence adduced by the
right to cause the death of a person prosecution would prove the recovery of 3
who is not accused of an offence Kgs. of Ganja from the accused in the
punishable with death or with manner as alleged. P.W.1 the mediator and
imprisonment for life. P.W.2 the Excise Inspector, supported the
case of the prosecution. Both of them
Absolutely, there is no cross
testified about the place of offence as well
examination of P.W.2, the person who
as recovery of the contraband. During the
arrested the accused pointing out
course of cross examination, P.W.1 deposed
28
 Kalavakollu Jyothi Vs. State of A.P. 19
that he signed on Ex.P.1 as VRO. It was registered the mediators report, as a case
drafted by the Sub Inspector. He had prior and sent FIR to the Court and further
acquaintance with the accused even before samples to the chemical analysis. According
the date of Ex.P.1. The bag is of white to Ex.P.4, the sample is of Ganja. M.O.1
colour and of 25 Kgs. None of the villagers is the sample. M.O.2 is the representative
gathered on the spot at the time of Ex.P.1. sample. It is not a case where the raid
There were residential houses around the party proceeded to the place of seizure on
Milk Society. He denied that nothing took prior information. During patrolling duties
place in his presence and that he does not only they found the accused near heap of
know anything about this case and that he stones by keeping a gunny bag in front of
is deposing false. her and on seeing the police, she tried to
abscond. Therefore, the prosecution
35) Turning to the cross examination
established the conscious possession of
of P.W.2, he deposed that he had no prior
Ganja with the accused. It is not the case
information that the accused was selling
of the accused that she had no knowledge
Ganja. He was in Venigandla for about one
about the contents of gunny bag. It is not
and half hour. Nobody informed him during
the case of the accused that she did not
that period the accused was selling Ganja.
try to abscond on seeing the excise police
Other than the mediators and his staff,
officials. The accused had no probable
none were present at the time of Ex.P.1.
defence whatsoever. Her presence at the
The case was registered by I Town S.I. He
place of occurrence and her coming into
denied that the accused was not informed
the custody of the police, in the manner
under Section 50 of the NDPS Act about
as stated by P.W.1 and P.W.2 was not
her right and that a false case is foisted.
shaken in their cross examination.
36) As seen from the cross
Ex.P.1 contained the purported thumb
examination part of P.W.1 and P.W.2,
impression of the accused and the accused
absolutely, there were no discrepancies
had no probable defence explaining the
elicited. They categorically testified the
manner in which she put her thumb
presence of the accused at the place of
impression.
seizure and recovery of Ganja from the
gunny bag. The accused had no probable 37) Having regard to the above, the
defence as to the manner in which she evidence of P.W.1 and P.W.2 was not at
came into the custody of the police. all shaken during the cross examination.
Consistently, the evidence of P.W.1 and Therefore, the prosecution cogently
P.W.2 establishes the presence of the established before the learned I Additional
accused at the place of seizure and the Sessions Judge, Guntur that on 12.06.2010
recovery of contraband from the gunny bag at 1-00 p.m., they found the accused in
which was found in possession of the possession of 3 Kgs. of Ganja.
accused. P.W.3 is the person, who 29
20 LAW SUMMARY
38) At this juncture, it is relevant to
look into certain presumptions as
contemplated under Section 35 of the NDPS
Act. According to Section 35 of the Act,
in any prosecution for an offence under this
Act which requires a culpable mental state
of the accused, the Court shall presume
the existence of such mental state but it
shall be a defence for the accused to prove
the fact that he had no such mental state
with respect to the act charged as an offence
in that prosecution. The explanation of the
above shows that „culpable mental state
includes intention, motive knowledge of a
fact and belief in, or reason to believe a
fact. The Hon ble Supreme Court in 2003
(11) ILD 491 SC held that once possession
is established, then the person who claims
that it was not a conscious possession has
to establish it because how he came to
be in possession is within his special
knowledge.
39) According to Section 54 of the
NDPS Act, it contemplates certain
presumptions. According to the said section
in trials under this Act, it may be presumed,
unless and until the contrary is proved, that
the accused committed the offence under
this Act in respect of any narcotic drug or
psychotropic substance or controlled
substance for the possession of which she
fails to account satisfactorily.
40) It is no doubt true that the
presumption under Section 54 of the NDPS
Act and the presumption under Section 35
would arise after the prosecution discharged
its burden to prove the recovery of the
30
(A.P.) 2023(3)
contraband from the accused. In my
considered view, the prosecution discharged
its burden about the recovery of contraband
from the possession of the accused. In
such circumstances, it is for the accused
to prove the contrary. The accused had no
semblance of say much less probable say
to prove contrary.
41) In the light of the above, the
evidence on record squarely proves about
the recovery of 3 Kgs. of Ganja from the
possession of the accused at the place of
seizure. According to Ex.P.4, the sample
that was tested by the laboratory was of
Ganja. The prosecution established the li
nk between M.O.1 with that of the Ganja
which was found in possession of the
accused in the gunny bag. The learned I
Additional Sessions Judge, Guntur, rightly
dealt with the contentions raised by the
accused before the trial Court with
appropriate reasons and appreciated the
evidence on record with sound reasons and
rightly found the accused guilty.
42) Now, turning to the sentence part,
one cannot deny the fact that the quantity
of 3 Kgs. of Ganja is not commercial
quantity. It is only in respect of the
commercial quantity of Ganja, minimum
punishment of 10 years and minimum fine
of Rs.1,00,000/- is provided. In respect of
the lesser than the commercial quantity,
the penal provision is Section 8(c) r/w
20(b)(ii)(B) of N.D.P.S. Act, 1985 which
provides the punishment up to 10 years and
fine up to Rs.1,00,000/-. Therefore, there
is no minimum punishment when the
 Kalavakollu Jyothi
quantity of Ganja is lesser than the
commercial quantity. The trial Court
questioned the accused about the quantum
of sentence, for which the accused stated
that she and her husband are suffering with
ill-health. The learned I Additional Sessions
Judge, Guntur, having made a finding that
there are no mitigating circumstances, was
of the view that the punishment which is
prescribed under law is to be imposed. In
my considered view, when the quantity of
Ganja was lesser, than the commercial
quantity and the quantity of Ganja was of
3 Kgs. subjecting the accused to the
maximum punishment is nothing but harsh.
The learned counsel for the appellant during
the course of hearing canvassed that the
accused served out sentence of two years
and after that she was granted with bail
and it may be considered while deciding
this appeal.
43) It is to be noticed that the judgment
of the trial Court was on 14.10.2010. The
accused filed this appeal in the year 2010
itself and got the order suspending the
sentence of imprisonment on 19.10.2010
itself. So, it is not borne out by the record
that after undergoing imprisonment for two
years only the accused got the bail.
However, if the appellant already undergone
imprisonment for two years, it will be duly
taken into consideration at appropriate stage
by the trial Court while re- entrusting the
conviction warrant. Under the
circumstances, I am of the considered view
that overall findings of the learned I Additional
Sessions Judge, Guntur in convicting the
accused are tenable under law and facts,
31
Vs. State of A.P. 21
but the sentence of imprisonment imposed
against the accused i.e., 10 years and fine
of Rs.1,00,000/- is nothing but harsh which
is to be reduced appropriately.
44) In the result, the Criminal Appeal
is allowed in part, modifying the rigorous
imprisonment of 10 years imposed against
the accused to that of four (04) years and
further modifying the fine of Rs.1,00,000/
- to that of Rs.25,000/- (Rupees twenty five
thousand only) and modifying default
sentence as to that of six (06) months
instead of two years. The rest of the
judgment of the learned I Additional Sessions
Judge, Guntur, in other aspects shall stands
confirmed.
45) The Registry is directed to take
steps immediately under Section 388 Cr.P.C.
to certify the judgment of this Court to the
trial Court on or before 08.09.2023 and on
such certification, the trial Court shall take
necessary steps to carry out the modified
sentence by issuing a Non-Bailable Warrant
against the appellant and to report
compliance to this Court.
46) The Registry is directed to forward
the record along with copy of the judgment
to the trial Court as above without fail on
or before 08.09.2023 by a special messenger
in the name of the Presiding Officer of the
Court.
Consequently, miscellaneous applications
pending, if any, shall stand closed.
--X--
22 LAW SUMMARY
2023(3) L.S. 22 (A.P.)
IN THE HIGH COURT OF
ANDHRA PRADESH
Present
The Hon’ble Mr. Justice
Duppala Venkata Ramana
K.Venkatachalam Chetty ..Petitioner
Vs.
The State of A.P & Anr., .... Respondents
CRIMINAL PROCEDURE CODE,
Sec.482 - Criminal Petition seeking to
quash the criminal proceedings against
Petitioner registered for the offence
under Section 420 IPC.
HELD: Whether the possession
was taken or not, as alleged in the
complaint, has to be established in a
proper Forum i.e., in a Civil Court -
Instead, 2nd Respondent initiated
present proceedings by giving a colour
of a criminal offence - It does not meet
the strict standard of proof required to
sustain a criminal accusation - Criminal
petition stands allow ed and the
proceedings against the Petitioner/A.1
in Crime stands quashed.
N.Bharat Babu, Advocate for Petitioner.
Asst.Public Prosecutor (State), Advocate
for Respondents.
O R D E R
In this Criminal Petition filed under complaint was filed for taking action against
Section 482 of the Code of Criminal
Procedure, 1973 (for short “Cr.P.C”) the
Crl.P.No.7020/2014 Date:06-09-2023 32 4.
(A.P.) 2023(3)
petitioner/A.1 seeks to quash the criminal
proceedings against him in Crime No.123
of 2014 of Palamaner Police Station,
Chittoor District, registered for the offence
under Section 420 IPC.
2. Heard the learned counsel for the
petitioner and the learned Assistant Public
Prosecutor for the State.
3. The facts in issue are that APIIC/
Government have acquired the lands in
Sy.No.532-2 Ac.0.12 cents; Sy.No.533-4
Ac.2.44 cents; Sy.No.533-5 Ac.1.58 cents
and in Sy.No.533-6 Ac.1.48 cents, through
Award No.2/Genl./95-96, dated 18.09.1995
for establishment of the Industrial
Development Area at Palamaner, Chittoor
District. The said lands were handed over
to APIIC by the Revenue Department on
25.02.2002 and ever since, the possession
was taken and the lands were under the
control of APIIC. It is further alleged that
during the inspection, on 23.04.2014, the
APIIC officials have observed that somebody
laid fencing to the subject land and a ground
breaking ceremony was performed. On
enquiry, they came to know that one of the
land owners namely, K.Venkatachalam
Chetty, has given a power of attorney in
favour of one G.Govardhan in respect of the
land to an extent of Ac.1.48 cents situated
in Sy.No.533/6 and they have sold the said
land to 44 different persons for house sites
duly making plots. The Sub-Registrar,
Palamaner entertained the illegal activity
and accepted for registration of the said
plots in their favour. As such, the present
the petitioner/A.1 and two others.
Learned Senior Counsel for the
 K.Venkatachalam Chetty Vs. The State of A.P & Anr., 23
petitioner would submit that the Government Development Area at Palamaner and in this
intended to acquire the land to an extent connection, land acquisition proceedings
of Ac.14.54 cents situated in different survey were initiated by the Land Acquisition Officer
numbers at Palamaner Village and Mandal and a Draft Notification under Section 4(1)
and some lands of Nagamangalam and of the Land Acquisition Act was submitted
issued a Draft Notification under Section to the Government and the notification was
4(1) of the Land Acquisition Act on published. Further, he would submit that
21.01.1993. He would further submit that since the Land Acquisition Officer/Revenue
under Section 11-A of the Land Acquisition Divisional Officer, Madanapalle, was
Act, within two years from the date of the authorized to perform the functions of the
notification, award has to be passed, Collector to conduct enquiry under Section
whereas, in the present case, award has 5-A of the Land Acquisition Act, he invited
been passed beyond two years. Later, the objections from the respective land owners
W rit Petition filed by the petitioner and their objections were overruled and
questioning the land acquisition proceedings petitioner’s land was acquired for
was also dismissed by this Court on establishment of Industrial Development
23.07.2001. He would further submit that Area and an Award was passed and
after lapse of 20 years, in order to cover immediately, the APIIC officials had taken
up their laches, a false and fictitious over the possession of the subject land
complaint has been lodged on 15.05.2014 from the Revenue Departm ent on
by the 2nd respondent. Further, he would 25.02.2002. He would further submit that
submit that the petitioner/A.1 has not having knowledge about the acquisition of
received any compensation for the land said the land, the petitioner/A.1 executed a GPA
to have been acquired in Sy.No.533/6. Even in favour of one G.Govardhan in respect of
according to the Government, the petitioner the land situated in Sy.No.533/6 to an extent
is the owner of the subject land. He would of Ac.1.48 cents and both the petitioner and
further submit that the dispute is of civil the GPA holder in collusion formulated the
nature and is to be decided by a competent plots and sold the same to the third parties
Civil Court and the 2nd respondent initiated with a fraudulent intention, and the
the present criminal proceedings by giving allegations in the complaint are sufficient
the colour of criminal offence and therefore, to constitute the offence under Section 420
the ingredients of Section 420 IPC are not IPC. Therefore, the present criminal
attracting against the petitioner and hence, proceedings were initiated against the
the proceedings in the above crime are petitioner/A.1 and he prays to dismiss the
liable to be quashed. petition.

5. Learned Assistant Public 6. Having perused the relevant facts

Prosecutor would submit that the land to
an extent of Ac.1.48 cents in Sy.No.533/
6 has been acquired by APIIC/Government
for establishment of the Industrial
33
and contentions made by the learned
counsel for the petitioner and the learned
Assistant Public Prosecution for the State,
in my considered opinion, the foremost
24 LAW SUMMARY
issue, which requires determination in the
instant case is,
Whether the allegations made against the
petitioner/A.1 would attract the accusation
made against him and whether there are
any merits in the criminal petition to allow?
POINT:
7. In a decision reported in State of
Haryana & Others Vs. Ch.Bhajanlal and
Others AIR 1992 SC 604, the Hon’ble Apex
Court held that in exercise of extraordinary
power conferred under Article 226 of
Constitution of India or the inherent powers
under Section 482 Cr.P.C, the following
categories of cases are given by way of
illustration, wherein, such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise clearly
defined and sufficiently channelized and
inflexible guide, myriad kinds of cases
wherein, such power should be exercised.
The relevant guidelines read as under:
“(1) where the allegations made in
the First Information Report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case
against the accused;
(2) where the allegations in the First
Information Report and other
materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation
by police officers under Section
34
(A.P.) 2023(3)
156(1) of the Code except under an
order of a Magistrate within the
purview of Section 155(2) of the
Code;
(3) where the uncontroverted
allegations made in the FIR or
‘complaint and the evidence collected
in support of the same do not
disclose the commission of any
offence and make out a case against
the accused;
(4) where the allegations in the FIR
do not constitute a cognizable
offence but constitute only a non-
cognizable offence, no investigation
is permitted by a police officer
without an order of a Magistrate as
contemplated under Section
155(2) of the Code;
(5) where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis
of which no prudent person can ever
reach a just conclusion that there
is sufficient ground for proceeding
against the accused;
(6) where there is an express legal
bar engrafted in any of the
provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the
aggrieved party;
 K.Venkatachalam Chetty Vs. The State of A.P & Anr., 25
(7) where a criminal proceeding is land. The Award No.2/Genl./95-96, dated
manifestly attended with mala fide 18.09.1995 was passed and the said Award
and/or where the proceeding is reveals that the petitioner/A.1 who is the
maliciously instituted with an ulterior land owner in Sy.No.533/6 to an extent of
motive for wreaking vengeance on Ac.1.48 cents along with four others have
the accused and with a view to spite not consented to be part with their respective
him due to private and personal lands for the acquisition. Except that, rest
grudge.” of the owners have consented and expressed
their willingness for acquisition of the lands
8. As can be seen from the decision @ Rs.40/- per square foot. Accordingly, the
supra, the 1st guideline is to the effect that Award was passed on 18.09.1995 and the
even if the complaint allegations are said Award was enclosed along with the
accepted to be true on their face value, if complaint and the above facts reveal the
they do not constitute any offence, then same.
the criminal proceedings against the
petitioner/A.1 can be quashed. 10. However, as per Section 11-A of
Land Acquisition Act, 1894, within two years
9. In the instant case, the petitioner/ from the date of notification, award has to
A.1 is the absolute owner of the land in be passed, whereas, in the present case,
Sy.No.533/6 to an extent of Ac.1.48 cents award has been passed beyond two years.
and admittedly, the Government intended
to acquire the land to an extent of Ac.14.54 11. At this juncture, it is relevant to
cents comprised in different survey numbers refer to Section 11-A of The Land Acquisition
for establishment of Industrial Development Act, 1894 reads as follows:
Area at Palamaner and the Land Acquisition
Officer-cum-Revenue Divisional Officer, “11A. Period shall be which an
Madanapalle issued Section 4(1) notification award within made. - The Collector
on 21.01.1993 as mentioned in the Writ shall make an award under section
Petition No.22968 of 1995 filed by the 11 within a period of two years from
petitioner/A.1. The Declaration under the date of the publication of the
declaration and if no award is made
Section 6 was published on 24.09.1993 within that period, the entire
preceded by Section 5-A enquiry conducted proceeding for the acquisition of the
and the petitioner/A.1 expressed his land shall lapse:
willingness for acquisition of the land in
Sy.No.533/1 to an extent of Ac.1.05 cents Provided that in a case where the
and received compensation to the said land said declaration has been published
and admittedly he declined willingness for before the commencement of the
the land in Sy.No.533/6 to an extent of Land Acquisition (Amendment) Act,
Ac.1.48 cents and no compensation was 1984 (68 of 1984), the award shall
received by the petitioner/A.1 for the said be made within a period of two years
from such commencement.”
35
26 LAW SUMMARY (A.P.) 2023(3)
12. As per the above provision, the draft of Section 11-A of the Land Acquisition Act
notification issued under Section 4(1) of the vitiated the entire proceedings.
Land Acquisition Act was approved by the
Collector vide Proceedings in Roc.L7/17458/ 15. Further, the 2nd respondent stated
88, dated 02.12.1992 and the draft in the complaint that the above lands were
declaration issued under Section 6 of the handed over to APIIC by the Revenue
Land Acquisition Act was also approved by Department on 25.02.2002 and ever since,
the Collector vide Proceedings in Roc.D12/ the APIIC has been in possession of the
17458/88, dated 28.08.1993, CTR/199. But, said lands and lodged a complaint on
the Award was passed on 18.09.1995, which 15.05.2014. The said fact is seriously
is beyond two years from the date of the
disputed by the petitioner/A.1.
publication of the Declaration.
16. The question as to whether the
13. The first and foremost contention
possession was in symbolic or actual, fell
of the petitioner/A.1 is with regard to lapse
for consideration, could all depend upon the
of acquisition on account of non-passing
facts and circumstances of the case. In
of the impugned award within a period of
the instant case, the possession of the
two years from the date of issuance of the
subject land was taken by APIIC from the
final notification as contem plated
Revenue Authorities on 25.02.2002 as
under Section 11-A of the Land Acquisition
alleged in the complaint. But, whether the
Act is no longer res integra.
said possession was taken under the
14. As per Section 11-A of the Land Panchanama or not, is not indicated in the
Acquisition Act, the Collector should make complaint by the 2nd respondent. It is
an Award under Section 11 within a period necessary to note that when a panchanama
of two years from the date of publication for delivery of possession of the lands was
of Section 6 declaration and if no Award conducted and the panchanama was signed
is made within that period, the entire by one of the officers of the Revenue
proceedings of such acquisition of lands Department, it is not open to the 2nd
should lapse. In the instant case, the date respondent to dispute about the taking
of publication of Section 6 declaration was possession of the lands and it is a common
28.08.1993. The 2nd respondent/Zonal sense that the lands cannot be physically
Manager should have passed the Award on put in possession of anybody, and it is only
or before 27.08.1995, whereas, the Award a paper delivery by duly conducting
was passed on 18.09.1995. Since the Award panchanama on the spot wherein, handing
had not been passed within the mandatory over of the possession is recorded. In the
period of two years from the date of the complaint it does not indicate that under
publication of the Declaration, the entire the panchanama the possession of the
acquisition proceedings lapsed. The non- property was delivered to APIIC by the
compliance of the mandatory provisions Revenue Authorities. This assertion would
36
 K.Venkatachalam Chetty Vs. The State of A.P & Anr., 27
undoubtedly go to show that the possession of the petitioner/A.1. Therefore, there is
of the land was not taken by APIIC. If the no merit in the contentions raised by the
possession of the land was handed over respondents and there is no explanation
to the APIIC by the Revenue Authorities, as to why the Revenue Department did not
they would have intimated to the Registering change the entries in the Revenue records.
Authorities about the acquisition of the In the instant case, the 2 respondent
nd

properties in respective survey numbers not lodged the present complaint to cover up
to entertain any registrations thereon, but, laches converting the civil dispute by giving
they did not do so. criminal colour alleging that the petitioner/
A.1 sold the property to third parties. But,
17. Admittedly, the possession of the there was no documentary proof to prove
lands has been under the control of the the same. On other hand, the Award itself
petitioner/A.1 and the Revenue records discloses that the petitioner/A.1 and four
reflect the name of the petitioner as an others have not consented to part with the
owner of the said land. If the Revenue land for acquisition in respective survey
Authorities handed over the subject property numbers.
to an extent of Ac.1.48 cents in Sy.No.533/
6 to the APIIC, the Pahanis would have 18. Even otherwise, as per Section
shown that APIIC is the owner of the said 24(2) of New Land Acquisition Act, 2013
land. On a perusal of the Pahanis, dated i.e., Right to Fair Compensation and
29.05.2014, filed along with this petition, Transparency in Land Acquisition,
the name of the pattadar was shown as Rehabilitation and Resettlement Act, 2013,
Venkatachalam Chetty i.e., the petitioner/ in any acquisition proceedings if award is
A.1 for the above land in Sy.No.533/6. Apart passed five years prior to the
from Pahanis, Adangal copy was also filed commencement of the Act and possession
along with the petition, wherein, the name was not taken, the land acquisition
of the pattadar was shown as proceedings shall be deemed to have lapsed
Venkatachalam Chetty i.e., the petitioner/ and remedy left to the Government to initiate
A.1 for the above said land. Further, the acquisition proceedings afresh.
statement of Encumbrance on Property,
19. In the instant case, the Award was
dated 26.05.2014 issued by the Sub-
passed on 18.09.1995 i.e., 18 years prior
Registrar, Palamaner, would also show that
to the commencement of the Act and the
as per the records of S.R.O., from 24 years
possession was not taken as stated supra,
i.e., from 01.01.1990 to 25.05.2014 the land
which is evident from the Revenue records
to an extent of Ac.1.48 cents in Sy.No.533/
i.e., Pahanis and Adangal and Encumbrance
6 was in the name of the petitioner/A.1 and
Certificate, as referred to above to show
G.Govardhan. In the light of the above
that the petitioner/A.1 is the owner of the
documents, it clearly indicates that the
subject land. Therefore, the acquisition
subject property has been in possession
37
28 LAW SUMMARY (A.P.) 2023(3)
proceedings said to have been initiated in compensation for the subject land was not
the year 1993 got lapsed by the operation deposited and apart from that the Award
of Law. reveals that the petitioner/A.1 who is the
land owner in Sy.No.533/6 to an extent of
20. Section 24(2) of the Right to Fair Ac.1.48 cents along with four others have
Compensation and Transparency in Land not consented to be part with their respective
Acquisition, Rehabilitation and lands for the acquisition. The 2nd respondent
Resettlement Act, 2013 reads as follows: initiated the present criminal proceedings
by giving criminal colour to the civil dispute
“24. Land acquisition process
instead of taking appropriate steps by
under Act No. 1 of 1894 shall be
following the provisions under the Land
deemed to have lapsed in certain
Acquisition Act.
cases.–
23. In Mitesh Kumar J.Sha Vs. State
(2) Notwithstanding anything
of Karnataka and others 2021 SCC Online
contained in sub-section (1), in case
SC 976, wherein, at Para Nos.29, 43, 45,
of land acquisition proceedings
46 and 47 the Hon’ble Apex Court held as
initiated under the Land Acquisition
follows:
Act, 1894 (1 of 1894), where an award
under the said section 11 has been “29. Coming to the facts of the case
made five years or more prior to the at hands, the contested contention
commencement of this Act but the between the parties is that the builder
physical possession of the land has company had sold four excess flats
not been taken or the compensation beyond its share, in terms of the JDA
has not been paid the said and supplementary agreement
proceedings shall be deemed to have entered into between the parties.
lapsed and the appropriate Respondent No. 2 contends that
Government, if it so chooses, shall builder company which was entitled
initiate the proceedings of such land to sell only 9 flats in its favour, has
acquisition afresh in accordance with instead executed sale deed for 13
the provisions of this Act.” flats in total. Thus, the company
simply could not have sold the flats
21. In the light of the above provision,
beyond 9 flats for which it was
the land acquisition proceedings initiated
authorized and resultantly cannot
by the Land Acquisition Officer deemed to
evade criminal liability on a mere
have been lapsed.
premise that a civil dispute is already
22. In the present case, possession of pending between the parties.
the subject land has not been taken as
43. On an earlier occasion, in case
alleged in the complaint and the
of G. Sagar Suri v. State of UP8, this
38
 K.Venkatachalam Chetty Vs. The State of A.P & Anr.,
Court has also observed:—
“8. Jurisdiction under Section 482 of
the Code has to be exercised with
a great care. In exercise of its
jurisdiction High Court is not to
examine the matter superficially. It
is to be seen if a matter, which is
essentially of civil nature, has been
given a cloak of criminal offence.
Criminal proceedings are not a short
cut of other remedies available in law.
Before issuing process a criminal
court has to exercise a great deal
of caution. For the accused it is a
serious matter. This Court has laid
certain principles on the basis of
which High Court is to exercise its
jurisdiction under Section 482 of the
Code. Jurisdiction under this Section
has to be exercised to prevent abuse
of the process of any court or
otherwise to secure the ends of
justice.”
45. Applying this dictum to the instant
factual matrix, it can be safely
concluded that the present case
clearly falls within the ambit of first,
third and fifth category of the seven
categories enlisted in the above said
judgment. The case therefore warrants
intervention by this Court, and the
High Court has erred in dismissing
the petition filed by the Appellants
under section 482 CrPC. We find
that there has been attempt to stretch
the contours of a civil dispute and
thereby essentially impart a criminal
color to it.
29
46. Recently, this Court in case
of Randheer Singh v. The State of
U.P.10, has again reiterated the long
standing principle that criminal
proceedings must not be used as
instruments of harassment. The court
observed as under:—
“33. ….There can be no doubt that
jurisdiction under Section 482 of the
Cr.P.C. should be used sparingly for
the purpose of preventing abuse of
the process of any court or otherwise
to secure the ends of justice. Whether
a complaint discloses criminal
offence or not depends on the nature
of the allegation and whether the
essential ingredients of a criminal
offence are present or not has to be
judged by the High Court. There can
be no doubt that a complaint
disclosing civil transactions may also
have a criminal texture. The High
Court has, however, to see whether
the dispute of a civil nature has been
given colour of criminal offence. In
such a situation, the High Court
should not hesitate to quash the
criminal proceedings as held by this
Court in Paramjeet Batra (supra)
extracted above.”
47. Moreover, this Court has at
innumerable instances expressed its
disapproval for imparting criminal
color to a civil dispute, made merely
to take advantage of a relatively quick
relief granted in a criminal case in
contrast to a civil dispute. Such an
39
30 LAW SUMMARY
exercise is nothing but an abuse of
the process of law which must be
discouraged in its entirety.”
24. In another decision of Hon’ble Apex
Court in Prof.R.K.Vijayasarathy and
another Vs. Sudha Seetharam and
another (2019) 16 SCC 739 it was held
as follows:
18. Section 420 of the Penal Code
reads thus:
“420. Cheating and dishonestly
inducing delivery of property.—
W hoever cheats and thereby
dishonestly induces the person
deceived to deliver any property to
any person, or to make, alter or
destroy the whole or any part of a
valuable security, or anything which
is signed or sealed, and which is
capable of being converted into a
valuable security, shall be punished
with im prisonment of either
description for a term which may
extend to seven years, and shall also
be liable to fine.”
19. The ingredients to constitute an
offence under Section 420 are as
follows:
19.1. A person must commit the
offence of cheating under Section
415; and
19.2. The person cheated must be
dishonestly induced to
(a) deliver property to any person;
40
(A.P.) 2023(3)
or
(b) make, alter or destroy valuable
security or anything signed or sealed
and capable of being converted into
valuable security.
20. Cheating is an essential
ingredient for an act to constitute an
offence under Section 420.
25. In the light of the judgments referred
to above, the remedy available for the 2nd
respondent is to approach the Civil Court
seeking an appropriate remedy by way of
cancellation of the registered sale deed if
executed by the petitioner/A.1 in favour of
the third parties and to initiate land
acquisition proceedings afresh as stated
above. Admittedly, the Land Acquisition
Officer has not comm unicated the
acquisition of the subject property in
Sy.No.533/6 to the Sub-Registrar, Palamaner
and did not inform not to entertain any
registrations from the date of handing over
the possession of the property to APIIC/
Government i.e., on 25.02.2002.
26. In the light above discussion,
whether the possession was taken or not,
as alleged in the complaint, has to be
established in a proper Forum i.e., in a Civil
Court. Essentially, these disputed questions
of fact constitute a civil case, which has
to be adjudicated in a Civil Court by
adducing evidence. Instead, the 2 nd
respondent initiated the present proceedings
by giving a colour of a criminal offence.
 S.Ghousia Vs. Uppaluru Mohammad Yusuf & Ors., 31
It does not meet the strict standard of proof 2023(3) L.S. 31 (A.P.)
required to sustain a criminal accusation.
IN THE HIGH COURT OF
27. In view of the foregoing discussion, ANDHRA PRADESH
this Court finds that the 2nd respondent
made an attempt to abuse the authority Present
The Hon’ble Mr. Justice
so as to do injustice. It would be an abuse
A. Ravindra Babu
of process of the Court to allow any action,
which would result injustice and prevent the
S.Ghousia, ..Appellant
promotion of justice. In exercise of the
Vs.
powers, Court would be justified to quash
Uppaluru Mohammad
any proceedings, if it finds that the initiation
Yusuf & Ors., ..Respondents
or continuance of it amounts to abuse of
process of the Court or quashing of these CIVIL PROCEDURE CODE -
proceedings would otherwise, serve the ends REJECT THE PLAINT - Challenging the
of justice. In fact, no offence is committed Order in I.A., Appellant/Plaintiff in the
by the petitioner/A.1. Therefore, this Court suit, filed the present appeal -
finds that it is a fit case to exercise the Defendant, filed an I.A. under Order
inherent jurisdiction of this Court under 7 Rule 10(1) of C.P.C. with a prayer to
Section 482 Cr.P.C to quash the proceedings reject the plaint on the ground that the
in Crime No.123 of 2014 of Palamaner Police plaint does not disclose cause of action.
Station, Chittoor District, registered for the
offence under Section 420 IPC against the HELD: Trial Court did not
petitioner/A.1. understand that I.A. is filed under wrong
provision of law - Trial Court simply
28. Resultantly, the criminal petition is allowed application only on the ground
allowed and the proceedings against the that the Plaintiff did not deposit the suit
petitioner/A.1 in Crime No.123 of 2014 of costs - Impugned Order is wholly
Palamaner Police Station, Chittoor District, unsustainable under law and it is liable
are hereby quashed. to be set aside restoring the plaint on
its file.
As a sequel, the miscellaneous
petitions, pending if any, shall stand G. Ramesh Babu, Advocate for the
disposed of. Appellant..

--X-- J U D G M E N T

Challenging the order, dated

05.11.2022 in I.A.No.1003 of 2022 in

41
A.S.No.111/2023 Date: 31.08.2023
32 LAW SUMMARY
O.S.No.26 of 2013, on the file of II Additional
District Judge, Kadapa at Proddatur, the
appellant, who is the plaintiff in the said
suit, filed the present appeal.
2) The parties to this appeal will
hereinafter be referred to as described before
the trial Court for the sake of convenience.
3) As evident from the grounds of
appeal as well as the enclosures thereof,
it is pertinent to refer here the circumstances
in which the respondent/plaintiff is compelled
to file the present appeal.
4) Originally, the respondent/plaintiff
viz., Smt. S. Ghousia filed O.S.No.145 of
2004, on the file of Senior Civil Judge Court,
Proddatur, against the defendants viz., (1)
Uppulur Fakruddin, (2) Mahammad Yusuf,
(3) M. Chandraleela, (4) B. Obulamma and
(5) Syed Jalekha Bee, seeking partition of
the suit schedule property into two portions
and allot one half share to plaintiff by taking
good and bad qualities and for grant of
mesne profits during the pendency of the
suit. While so, during the pendency of the
suit, the said plaintiff filed I.A.No.807 of
2009 in O.S.No.145 of 2004, seeking
permission to withdraw the suit and to file
5)
a fresh suit. The learned Senior Civil Judge
I.A.No.1003 of 2022 in O.S.No.26 of 2013
at Proddatur, allowed I.A.No.807 of 2009
is as follows:
permitting the plaintiff to withdraw the suit
and to file a fresh suit subject to condition
of payment of suit costs to the first
defendant. Further the order discloses that
a memo filed by the plaintiff withdrawing
the suit is recorded and the suit shall be
dismissed with costs to the first defendant
as withdrawn. Subsequently, Smt.S.
Ghousia filed a suit in O.S.No.26 of 2013,
on the file of II Additional District Judge, 42
(A.P.) 2023(3)
Kadapa at Proddatur against the defendants
viz., (1) Uppaluri Mohammad Yousaf, (2)
M. Chandraleela, (3) B. Obulamma and (4)
Syed Jaleka Bee, with a prayer to partition
the suit schedule properties into three equal
shares and to allot one such share to the
plaintiff by taking good and bad qualities
and put the plaintiff into a separate
possession and to direct the defendants
to pay the mesne profits and to declare
that the registered sale deed bearing No.209/
2004, dated 08.01.2004, registered sale
deed bearing No.927/2004, dated
30.04.2004 and registered sale deed bearing
No.848/2004, dated 12.04.2004 as null and
void. During the pendency of O.S.No.26 of
2013, the first defendant filed a petition
under Order 7 Rule 10(1) of C.P.C. with a
prayer to reject the plaint on the ground
that the plaint does not disclose cause of
action. Though it appears that the first
defendant did not quote the proper provision
of law, but undoubtedly, the above said
application was filed to reject the plaint
which is regulated by Order 7 Rule 11 of
C.P.C. So, mere quoting of wrong provision
of law in the Interlocutory Application has
no significance.
The case of the first defendant in
The plaintiff filed suit against him and
others for partition and separate
possession of the suit schedule
properties. Earlier, she filed
O.S.No.145 of 2004 seeking partition
and separate possession and to
overcome the chief examination of
R.W.1 and her witness, she filed
 S.Ghousia Vs. Uppaluru Mohammad Yusuf & Ors., 33
I.A.No.807 of 2009 seeking 8) The first respondent having received
permission to withdraw the suit and notice did not make any appearance.
to institute a fresh suit on the same Respondent Nos.2 to 4 are not necessary
cause of action. The petition was parties to this appeal.
allowed on condition to pay the suit
costs to the petitioner. O.S.No.145 9) Now, in deciding this appeal, the
of 2004 was dismissed as withdrawn. points that arise for consideration are as
Without complying the order in the follows:
above said Interlocutory Application
(1) W hether the order, dated
to pay the suit costs, the present
05.11.2022 in I.A.No.1003 of 2022 in
suit is filed. The plaintiff has no right
O.S.No.26 of 2013, in rejecting the plaint
to institute the present suit. No cause
is sustainable under law and facts?
of action arose against the petitioner
and others to file the suit and to (2) To what relief?
proceed in the trial.
Point No.1:
6) As against the above Interlocutory
Application, the plaintiff filed a counter 10) Sri G. Ramesh Babu, learned
denying the allegations and contending that counsel for the appellant, would contend
he filed the present suit against the petitioner that the rejection of the plaint is regulated
and others for partition and separate by Order 7 Rule 11 of C.P.C. The first
possession. He pleaded cause of action defendant failed to bring his case under the
clearly in para No.9 of the plaint, as such, purview of Order 7 Rule 11 of C.P.C. He
the contention of the petitioner is untenable. filed I.A.No.1003 of 2022 alleging that there
The cause of action is a bundle of facts is no cause of action. In para No.9 of the
and the court cannot reject the plaint basing plaint in O.S.No.26 of 2013, there is a clear
on the averments in the written statement. whisper about the bundle of facts relating
Unless and until full pledged trial takes to cause of action. Though the suit in
place, plaint cannot be rejected at threshold. O.S.No.145 of 2004 was dismissed on
Hence, the petition is liable to be dismissed. payment of costs to the first defendant, but
the learned Senior Civil Judge at Proddatur
7) The learned II Additional District did not make any further condition putting
Judge, Kadapa at Proddatur, on hearing any date for compliance of the condition.
both sides in I.A.No.1003 of 2022 passed On the other hand, the judgment was
an order rejecting the plaint on the ground delivered dismissing the suit as withdrawn.
that the plaintiff did not pay the suit costs So, even if the costs are not paid, the
as ordered in O.S.No.145 of 2004, as such, remedy open to the defendants was to
the suit in O.S.No.26 of 2013 is not execute the decree so as to recover the
maintainable. It is that order which is now suit costs. The intention of the learned
under challenge in the present appeal. Senior Civil Judge at Proddatur in imposing
the costs while permitting the plaintiff to
43
34 LAW SUMMARY
withdraw the suit was only to allow the
costs in favour of the first defendant, as
the plaintiff sought to withdraw the suit. If
the intention of the learned Senior Civil Judge
at Proddatur was to dismiss the suit in
O.S.No.145 of 2004 for non- payment of
costs, he would have put up another date
for complying the condition. When that is
so, the learned II Additional District Judge,
Kadapa at Proddatur is not at all justified
in rejecting the plaint on the ground that
the plaintiff in O.S.No.145 of 2004 did not
pay costs to the first defendant. Para No.9
of the plaint discloses the bundle of facts
as to the cause of action. The suit in
O.S.No.26 of 2013 is absolutely
maintainable. The plaintiff clearly pleaded
bundle of facts in para No.9 of the plaint
about the cause of action. The learned II
Additional District Judge, Kadapa at
Proddatur, did not understand the purport
of the order in O.S.No.145 of 2004 and
erroneously rejected the plaint driving the
appellant to approach this Court. O.S.No.26
of 2013 was an old suit. It was unnecessarily
rejected on 05.11.2022 erroneously without
looking into the Order 7 Rule 11 of C.P.C.,
as such, the appeal is liable to be allowed.
11) Firstly, this Court would like to refer
here the circumstances in which the plaint
can be rejected. Order 7 Rule 11 of C.P.C.
runs as follows:
11. Rejection of plaint.
The plaint shall be rejected in the following
cases-
(a)where it does not disclose a cause
of action;
44
(A.P.) 2023(3)
(b)where the relief claimed is
undervalued, and the plaintiff, on
being required by the Court to correct
the valuation within a time to be fixed
by the Court, fails to do so;
(c)where the relief claimed is properly
valued, but the plaint is returned upon
paper insufficiently stamped, and the
plaintiff, on being required by the Court
to supply the requisite stamp-paper
within a time to be fixed by the Court,
fails to do so;
(d)where the suit appears from the
statement in the plaint to be barred
by any law;
(e)where it is not filed in duplicate;]
(f)where the plaintiff fails to comply
with the provisions of rule 9;]
[Provided that the time fixed by the
Court for the correction of the
valuation or supplying of the requisite
stamp-paper shall not be extended
unless the Court, for reasons to be
recorded, is satisfied that the plaintiff
was prevented by any cause of an
exceptional nature for correcting the
valuation or supplying the requisite
stamp- paper, as the case may be,
within the time fixed by the Court
and that refusal to extend such time
would cause grave injustice to the
plaintiff.]
12) Now, as evident from I.A.No.1003
of 2022 in O.S.No.26 of 2013, the first
respondent filed the same to reject the
plaint on the ground that the plaintiff has
 S.Ghousia Vs. Uppaluru Mohammad Yusuf & Ors., 35
no cause of action to file the suit as she 10.03.2000 when she executed
did not comply the condition of payment confirmation of oral gift and
of suit costs in O.S.No.145 of 2004 to the subsequently died on 15.04.2000
first defendant. leaving behind her, her husband U.
Fakruddin, plaintiff and first defendant
13) A perusal of the copy of judgment as her legal heirs and first defendant
on O.S.No.145 of 2004 reads that and the plaintiff are in joint
I.A.No.807 of 2009 was allowed permitting possession and the first defendant
the plaintiff to withdraw the suit and to file cultivating the lands on behalf of the
a fresh suit subject to condition of payment plaintiff and subsequently first
of suit costs to the first defendant. defendant and U. Fakruddin did not
Accordingly, a memo filed by the plaintiff show love and affection towards the
was recorded and the suit was dismissed plaintiff and U. Fakruddin part of fist
as withdrawn. Therefore, it is not the intention item of suit schedule property in
of the learned Senior Civil Judge at Proddatur favour of 2 to 4 defendants and
to put a date to comply the payment of subsequently when the plaintiff filed
suit costs as a condition precedent to the suit in O.S.No.145 of 2004 on
withdraw O.S.No.145 of 2004. On the other the file of Senior Civil Judge’s Court,
hand, the memo filed by the plaintiff was Proddatur, and subsequently
recorded withdrawing the suit, as such, the withdraw the suit with the permission
suit was dismissed as withdrawn with costs of the Court to file fresh suit and
to the first defendant. Admittedly, the subsequently U. Fakruddin died and
grievance of the first defendant in the plaintiff demanded first defendant
I.A.No.1003 of 2022 is that the suit in for partition and as he refused and
O.S.No.26 of 2013 is not maintainable for trying to alienate the property
non-payment of suit costs in O.S.No.145 depriving the share of the plaintiff and
of 2004, as such, the plaint is to be rejected. as the first defendant has not come
forward for division and hence the
14) As seen from the copy of plaint
plaintiff obliged to file the suit for
in O.S.No.26 of 2013, plaintiff categorically
partition and separate possession
pleaded in para No.9 of the plaint cause
and the suit schedule property are
of action. It is pertinent to extract here para
situated at Kamalapuram within the
No.9 of the plaint in O.S.No.26 of 2013:
territorial limits of this Hon’ble Court
“9.The cause of action for the suit and this Hon’ble Court has got
arose on 20.10.1989 when the mother jurisdiction to entertain the suit.”
of the plaintiff orally gifted the suit
15) As evident from the above cause
schedule items in favour of plaintiff
of action, the plaintiff pleaded bundle of
and first defendant herein out of love
facts to constitute the cause of action.
and affection towards them in
What is one of the things for rejection of
thepresence of two respectable
plaint under Order 7 Rule 11 of CPC is as
persons and subsequently on 45
36 LAW SUMMARY
to whether the plaint discloses the cause
of action or not. Undoubtedly, para No.9
of the plaint discloses the cause of action.
The dismissal of the suit in O.S.No.145
of 2004 is one aspect in the bundle of facts
constituting the cause of action. In fact,
the learned Senior Civil Judge at Proddatur
permitted the plaintiff to institute the fresh
suit and the suit in O.S.No.145 of 2004
was withdrawn. If positive interpretation is
made about the contents of the judgment,
it means that the plaintiff in O.S.No.145
of 2004 is liable to pay the suit costs to
the first defendant. Therefore, if the plaintiff
fails to pay the suit costs to the first
defendant, his remedies are elsewhere.
He can as well execute the decree in
O.S.No.145 of 2004 by filing an Execution
Petition. Even the learned Senior Civil Judge
at Proddatur, proceeded to dismiss the
suit as withdrawn by awarding costs in
favour of the first defendant. The word
“condition” appears to have been put in
the judgment as usual without any further
condition. The word “condition” used in the
judgment in O.S.No.145 of 2004 cannot
be taken as a condition precedent to
withdraw the suit. If the intention of the
learned Senior Civil Judge at Proddatur is
as such he would not have recorded the
memo granting permission to withdraw the
suit.
16) A look at order in I.A.No.1003 of
2022 i.e., the impugned order means that
as the plaintiff did not pay the suit costs
to the first defendant, the suit is not
maintainable. As seen from the above, the
learned II Additional District Judge, Kadapa
at Proddatur did not look into the purport
of judgment in O.S.No.245 of 2004 properly.
46
(A.P.) 2023(3)
It appears that the learned II Additional
District Judge, Kadapa at Proddatur even
did not look into the essential ingredients
of Order 7 Rule 11 of C.P.C. and the contents
of para No.9 of the plaint constituting the
cause of action. The quoting of wrong
provision of law is not a ground to reject
the prayer, if the petitioner is otherwise
entitled to the prayer. However, the learned
II Additional District Judge, Kadapa at
Proddatur did not understand that
I.A.No.1003 of 2022 is filed under wrong
provision of law. In my considered view, the
mechanical rejection of the plaint only on
the ground that the plaintiff in O.S.No.145
of 2004 did not pay the suit costs to the
first defendant is absolutely not in
accordance with law. Instead of looking
into as to whether the case of the petitioner
in I.A.No.1003 of 2022 would come under
the purview of Order 7 Rule 11 of C.P.C.,
the learned II Additional District Judge,
Kadapa at Proddatur, simply allowed
application only on the ground that the
plaintiff did not deposit the suit costs in
O.S.No.145 of 2004. The findings of the
learned II Additional District Judge, Kadapa
at Proddatur that the suit filed by the plaintiff
in O.S.No.26 of 2013 is not maintainable
without payment of suit costs in O.S.No.145
of 2004 absolutely erroneous. The learned
II Additional District Judge, Kadapa at
Proddatur did not think over into the aspect
that the petitioner in I.A.No.1003 of 2022
has every right to execute the decree in
O.S.No.145 of 2004 with regard to the costs
awarded in his favour. The failure on the
part of the plaintiff to comply the payment
of costs would not nullify the bundle of facts
pleaded in para No.9 of the plaint
constituting the cause of action.
 B.Prabhakar @ B.Prabhakar
17) In the light of the above, I am of
the considered view that the impugned order
is wholly unsustainable under law and it
is liable to be set aside. Already the plaintiff
instituted the suit way back in the year
2013 and the plaint was rejected on
05.11.2022.
18) Having regard to the above, I am
of the considered view that as the suit in
O.S.No.26 of 2013 is an old one, appropriate
directions are to be given to the trial Court
to dispose the suit expeditiously while
setting aside the order in I.A.No.1003 of
2022.
19) In the result, the appeal is allowed
with costs, setting aside the order, dated
05.11.2022 in I.A.No.1003 of 2022 in
O.S.No.26 of 2013 thereby restoring the
plaint on its file. The learned II Additional
District Judge, Kadapa at Proddatur, is
directed to dispose O.S.No.26 of 2013 in
accordance with law, as expeditiously as
possible, preferably not later than six months
from the date of receipt of this judgment.
20) The Registry is directed to forward
the copy of the judgment to the trial Court
as above without fail on or before 06.09.2023.
Consequently, miscellaneous applications
pending, if any, shall stand closed.
--X--
47
Naidu Vs. Hari Prasad 37
2023(3) L.S. 37 (A.P.)
IN THE HIGH COURT OF
ANDHRA PRADESH
Present
The Hon’ble Mr. Justice
Ravi Nath Tilhari
B.Prabhakar @ B.Prabhakar
Naidu ..Petitioner
Vs.
Hari Prasad ..Petitioner
(INDIAN) EVIDENCE ACT, Sec.45
- Civil revision petition by the Petitioner
challenging the Order, rejecting the I.A.
filed by the Petitioner in O.S.
HELD: No time limit can be fixed
for filing applications under Section 45
of the Indian Evidence Act, 1872 - It is
within the discretion of the Court to
consider, if the application so filed,
belatedly, is to be allowed or rejected,
depending upon the facts and
circumstances of each case - Suit was
filed in the year 2017 for recovery of
money based on promissory note -
Application was filed in the year 2022
after five years, after closure of
evidence.
Defendant’s disputed signature
on suit promissory note are not
comparable with his signatures on
w ritten statement or/and vakalat
executed in the same suit, for expert
opinion - Civil revision stands
dismissed.
CRP.No.1660/2023 Date: 21.08.2023
38 LAW SUMMARY
T.Janardhan Rao, Advocate for the Revision-
petitioner.
V.Nitesh, Advocate for the Respondent.
O R D E R
Heard Sri T.Janardhan Rao, learned
counsel for the revision-petitioner/defendant
and Sri Chilukuri Karthik, learned counsel
representing on behalf of Sri V.Nitesh,
learned counsel for the respondent/plaintiff.
2. This civil revision petition has been
filed by the revision-petitioner/defendant
under Article 227 of the Constitution of India,
challenging the Order, dated 03.04.2023,
„Rejecting the I.A.No.367 of 2022 filed by
the revision-petitioner/defendant under
Section 45 of the Indian Evidence Act, 1872
in O.S.No.260 of 2017 on the file of Additional
Senior Civil Judge s Court, Chittoor.
3. The respondent/plaintiff filed
O.S.No.260 of 2017 for decree, directing
the revision-petitioner/defendant to pay
the suit claim under promissory note together
with future interest at the rate of 24% per
annum and consequential reliefs.
4. The revision-petitioner/defendant in
the written statement denied borrowing any
amount from plaintiff. He also denied
execution of any promissory note. He
also pleaded that his signatures on the
promissory note were forged and fabricated.
5. Both the parties lead evidence. After
closure of the evidence, the revision-
petitioner filed I.A.No.367 of 2022 under
Section 45 of the Indian Evidence Act,
1872, to send the promissory note, dated
09.07.2016 (Exhibit A.1) along with his
48
(A.P.) 2023(3)
admitted signatures for comparison and
opinion of handwriting expert, to the Director,
Forensic Science Laboratory, Mangalagiri
of Guntur District.
6. Along with I.A.No.367 of 2022, the
revision-petitioner did not file any document
which might have contained his admitted
signatures.
7. The respondent/plaintiff filed counter
to I.A.No.367 of 2022. He inter alia denied
the contents of the interlocutory application
and the affidavit in support thereof. He further
submitted that the Court had the power to
compare the signature of the defendant
with the admitted signature. It was further
submitted that the defendant was in the
habit of changing language and type of his
signature. He requested to reject the
application I.A.No.367 of 2022.
8. The learned Trial Court framed the
following point for determination: -
“Whether the petitioner/plaintiff is
entitled to send the suit promissory
note to the Handwriting Expert,
APFSL, Mangalagiri to compare the
signatures on Ex.A.1 promissory note
dt.09.07.2016 as prayed for?”
9. The learned Trial Court vide Order,
dated 03.04.2023 „Rejected the petitioner
s I.A.No.367 of 2022 application.
10. Challenging the Order, dated
03.04.2023 the present civil revision-petition
has been filed.
11. The learned Trial Court „Rejected
the application, on the grounds, that the
application was filed after closure of
 B.Prabhakar @ B.Prabhakar Naidu Vs. Hari Prasad 39
the evidence of both the parties; and that admitted signatures for comparison with
the revision- petitioner did not file his the disputed signatures. So, the Trial
admitted contemporary signatures to Court correctly observed in that regard.
compare the same with the signatures on So far as the defendant/petitioner s
the suit promissory note. signatures on his written statement and
vakalat are concerned, he submits that
12. Sri T.Janardhan Rao, learned the comparison of the disputed signatures
counsel for the revision- petitioner/defendant cannot be made with the signatures on
submits that the grounds of rejection the written statement and the vakalat.
are unsustainable. The application could
not be rejected on the ground that it 17. Learned counsel for the respondent
was filed after closure of evidence. placed reliance in the cases of Dara
Srinivasa Rao v. Nallamilli Venkara
13. He further submits that it could Reddy2021 (3) ALD 203 and Byalla Devadas
be filed at such a stage, as well. He v. Sivapuram Rama Yogeswara Rao2022
further submits that the signatures of the (5) ALT 614.
revision-petitioner were available in his
written statement and the vakalat. So, the 18. I have considered the submissions
Trial Court erred in observing that the advanced by the learned counsels for the
admitted contemporary signatures of the parties and perused the material on record.
petitioner/ defendant, to compare with the
disputed signature on the promissory note, 19. In view of the submissions
was not filed. advanced, the point for consideration is:

14. Learned counsel for the petitioner “Whether the Rejection of the
relied in the cases of Janachaitanya petitioner’s application in I.A.No.367
Housing Ltd. v. Divya Financiers2008 of 2022 in O.S.No.260 of 2017 is
(4) ALD 339 (DB). and Mudi Reddy Tirupathi justified or it calls for interference?”
Reddy v. T.Linga Reddy and Others2015
20. The first ground of Rejection is
(6) ALT 512.
that the application was filed belatedly
15. Sri Chilukuri Karthik, learned after closure of the evidence of both the
counsel representing Sri V. Nitesh, learned parties.
counsel for the respondent/plaintiff, submits
21. On this aspect, in Janachaitanya
that the application was filed belatedly after
Housing Ltd (supra) on a reference made
closure of the evidence of both the parties.
to the larger Bench, noticing two inconsistent
So, the Trial Court did not err in rejecting
views taken by the learned Single Judge
the same.
in different cases, the Division Bench of this
16. He further submits that the revision- Court held that no time could be fixed for
petitioner/ defendant did not file any filing application under Section 45 of the
contemporary document containing the Indian Evidence Act, for sending the disputed
49 signatures or writings to the handwriting
40 LAW SUMMARY
expert for comparison and opinion. The same
shall be left open to the discretion of the
Court; for exercising such discretion when
exigencies so demand, depending upon the
facts and circumstances of the each case.
22. The relevant part of Para Nos.8 and
9 of Janachaitanya Housing Ltd (supra)
is reproduced as
under:”8. “…In view of the same,
we are of the opinion that the
Court cannot lay down any hard- and-
fast rules controlling the discretion
of the Court to send the disputed
documents/writings for the opinion of
the expert or to examine him in
support of such opinion. On sending
the document to handwriting expert
and on receiving report, parties, on
showing sufficient cause, may call
upon the Court to permit them to
examine hand-writing expert or any
witness in support or rebut the same
opinion…”
“9. For the reasons aforementioned,
we answer the reference thus: “No
time could be fixed for filing
applications under Section 45 of
the Indian Evidence Act for sending
the disputed signature or writings to
the handwriting expert for
comparison and opinion and same
shall be left open to the discretion
of the Court; for exercising such
discretion when exigencies so
demand, depending upon the facts
and circumstances of the each case.”
23. So, in view of the Division Bench
Judgment, no hard and fast rule can be
50
(A.P.) 2023(3)
applied. No time limit can be fixed for filing
applications under Section 45 of the Indian
Evidence Act, 1872; It is within the discretion
of the Court to consider, if, the application
so filed, belatedly, is to be allowed or
rejected, depending upon the facts and
circumstances of each case.
24. In the present case, the Trial Court
in the exercise of its discretion, under the
facts and circumstances of the case,
considered not to allow the belated
application filed after closing the evidence
of both the parties. Learned counsel for the
petitioner tried to submit that as no time
limit has been fixed, it can be filed at any
stage. The submission deserves rejection.
„No time limit does not mean at any time.
The stage, at which the application is
filed, is left to the discretion of the Trial
Court considering the facts and
circumstances of each case to take
decision. The suit was filed in the year
2017 for recovery of money based on
promissory note. The application was filed
in the year 2022 after about five (05) years,
after closure of evidence. Under such
circumstances, the Trial Court having
exercised the discretion one way in rejecting
the application, on the ground of belated
application, this Court, in the exercise of
jurisdiction under Article 227 of Constitution
of India does not find any reason to interfere
with such exercise of discretion.
25. The second ground of rejection is
that the revision- petitioner/defendant did
not file any contemporary document
containing his admitted signatures, for
comparison with the disputed signature.
26. Learned counsel for the petitioner
 B.Prabhakar @ B.Prabhakar Naidu Vs. Hari Prasad 41
submits that such comparison could be or vakalat. It is also not a case where the
made from the admitted signatures of the signatures of the plaintiff were to be
petitioner on his written statement and the compared from the plaintiff s signatures on
Vakalat. He contends that in the case of the plaint and vakalat. It was a case of
Mudi Reddy Tirupathi Reddy (supra), the comparing the signature of the defendants,
application for verification of the disputed but it could not be from the plaint as the
signatures was permitted for comparison defendants would have no signatures on
of the signatures in the plaint and vakalat. the plaint or the vakalat of plaintiff. The
So, on the analogy, the disputed signatures „plaint and „vakalat as mentioned in para
on the written statement and vakalat could No.2 of the judgment in Mudi Reddy
also be sent for comparison with the Tirupathi Reddy (supra) (in last sentence),
disputed signature on pronote. it appears to be an error. However, there
is clarity that the comparison was to be
27. The said submission deserves made from the admitted signatures of the
rejection. The Judgment in Mudi Reddy defendants on Exs.B.1 to Ex.B.4 in Mudi
Tirupathi Reddy (supra), does not support Reddy Tirupathi Reddy (supra). The said
the submission of the learned counsel for case is therefore of no help to the petitioner.
the petitioner. His submission proceeds on
wrong assumption of fact and law. In Mudi 29. In Dara Srinivasa Rao (supra), it
Reddy Tirupathi Reddy (supra) the plaintiff has been clearly laid down that the defendant
therein filed the suit for Specific Performance s signatures on his vakalat and written
of an Agreement of Sale Receipt, dated statement, cannot be considered as
04.04.2004. The defendant therein denied signatures of assured standard for
his signatures on the said document. When comparison with his disputed signatures.
the case was at the stage of examination
of D.W.1, the plaintiff filed application under 30. It is apt to reproduce para Nos.9
Section 45 of the Indian Evidence Act, 1872, to 11 of Dara Srinivasa Rao (supra)
to send the said document to an expert as under:
in handwriting to compare the signatures
“9. On perusal of the impugned order
thereon, with the admitted signatures of
under this revision and also the
defendants on Ex.B.1 to Ex.B.4. From
material available on record, it
the facts of the judgment, it is evident that
appears that the disputed signature
the disputed signatures of the defendants
in Ex.A1/suit promissory note is
on the Agreement of Sale Receipt were
dated 15.01.2012 and the suit was
sought to be compared with their admitted
filed in the year 2015. The present
signatures on the documents Ex.B.1 to
revision petition is filed in the year
Ex.B.4.
2019 to send the suit promissory
28. The Mudi Reddy Tirupathi note for comparison of signature with
Reddy (supra) is not a case of comparing admitted signatures of the petitioner
the disputed signatures of the defendant; over Vakalat and Written Statement.
from the signatures on the written statement 51 Admittedly, there is a gap of three
42 LAW SUMMARY
years between both of them. As such,
the proposition of law laid down by
this Court in Bande Siva Shankara
Srinivasa Prasad v. Ravi Surya
Prakash Babu AIR 2016 (Hyd.) 118,
relied by the learned counsel for the
petitioner is no useful to support his
contention basing on the facts and
circumstances of the present case.
10.In the judgment relied by the
learned counsel for the respondent
in Chennadi Jalapathi Reddy v.
Baddam Pratapa Reddy (dead)
through Legal Representatives and
another(2019) 14 SCC 220, the Hon
ble Apex Court at Para No.24, it was
held as under:
“There is another reason why we are
not inclined to place reliance on the
opinion of the expert DW2. From a
perusal of his report Ext. B2, it is
evident that barring the signature on
a written statement in a prior suit,
all other admitted signatures of the
first defendant are of a period
subsequent to the filing of the plaint
(i.e., on the vakalatnama and the
written statement filed in this suit
itself). These admitted signatures
taken subsequent to the filing of the
suit could not have been used as
a valid basis of comparison, and their
use for this purpose casts serious
doubt on the reliability of the entire
report Ext. B2. Thus, the report was
liable to be discarded on this ground
alone, and was wrongly relied upon
by the High Court.”
11. This Court has an 52
(A.P.) 2023(3)
occasion to consider the similar issue
in P.Padmanabhaiah v. G.Srinivasa
Rao AIR 2016 AP 118 (FB) and held
as under:
“In the well considered view of this
Court, the defendant s signatures
on the Vakalat and the written
statement cannot be considered
as signatures of comparable and
assured standard as according to
the plaintiff even by the date of the
filing of the Vakalat the defendant is
clear in his mind about his stand
in regard to the denial of his
signatures on the suit promissory
note and the endorsement thereon
and as the contention of the plaintiff
that the defendant might have
designedly disguised his signatures
on the Vakalat and the written
statement cannot be ruled out prima
facie. The view point being projected
by the plaintiff that if the defendant
is called upon to furnish his
signatures in open Court, he might
designedly disguise his signatures
while making his signatures on
papers in open Court is also having
considerable force and merit. Unless
the defendant makes available to the
Court below any documents, with
his signatures, of authentic and
reliable nature more or less of a
contemporaneous period, and unless
such documents are in turn made
available to the expert along with the
suit promissory note, the expert will
not be in a position to furnish an
assured opinion, in the well
considered view of this Court.”
 B.Prabhakar @ B.Prabhakar
31. In Byalla Devadas (supra), also,
the same proposition of law has been
laid down. It has been held that the
signatures on the vakalat and the written
statement of the defendant cannot be send
for comparison to the disputed signatures.
There would be no point in sending to an
expert the documents of doubtful nature
and character and add one more piece
of unreliable evidence. It is unsafe to
obtain the signatures of the defendant
in open Court and send the said signatures
and also his vakalat and written statement
to an expert for obtaining opinion after
comparison. It was further observed and
held that the defendant s signature on the
vakalat and the written statement cannot
be considered as signatures of comparable
and assured standard, as by that time i.e.,
filing of the vakalat and written statement,
the defendant is clear in his mind about
his stand in regard to the denial of his
signatures on the suit promissory note. The
endorsement thereon cannot be ruled out
as the defendant might have designedly,
disguised his signatures on the vakalat
and written statement.
32. Para Nos.9 and 10 in Byalla
Devadas (supra), are reproduced as under:
“9. At this juncture, it is appropriate
to refer to the orders passed by a
learned Judge in P.Padmanabhaiah
and the case of Dara Srinivasa Rao.
In P.Padmanabhaiah case referred
supra, the defendant in O.S.No.324
of 2010 on the file of Court of the
Additional Senior Civil Judge, Kurnool
filed an application under Section 45
of the Indian Evidence Act to send
the vakalat and written statement 53
Naidu Vs. Hari Prasad 43
containing his signatures along with
the promissory note (Ex.A1) for
handwriting expert for comparison of
his signatures on the vakalat and
written statement with the signatures
said to be of him on Ex.A.1 and
furnish a report with opinion as to
the genuineness or otherwise of the
disputed signatures on the said
exhibits. The said application was
allowed. The learned Judge of this
Court while interfering with the orders
of the Trial Court had extensively
dealt with the matters with reference
to comparison of signatures on
vakalat and written statement with
the disputed documents, inter alia,
held as follows:
“In the well considered view of this
Court, the defendants signatures on
the Vakalat and the Written
Statement cannot be considered as
signatures of comparable and assured
standard as according to the plaintiff
even by the date of the filing of the
vakalat the defendant is clear in his
mind about his stand in regard to
the denial of his signatures on the
suit prom issory note and the
endorsement thereon and as the
contention of the plaintiff that the
defendant might have designedly
disguised his signatures on the
Vakalat and the Written Statement
cannot be ruled out prima facie. The
view point being projected by the
plaintiff that if the defendant is called
upon to furnish his signatures in open
Court, he might designedly disguise
his signatures while making his
44 LAW SUMMARY
signatures on papers in open Court
is also having considerable force and
merit. Unless the defendant makes
available to the Court below any
documents, with his signatures, of
authentic and reliable nature more
or less of a contemporaneous period,
and unless such documents are in
turn made available to the expert
along with the suit promissory note,
the expert will not be in a position
to furnish an assured opinion, in the
well considered view of this Court.
……..There is no point in sending
to an expert the documents of
doubtful nature and character and
add one more piece of unreliable
evidence and burden the record by
wasting the time and money of the
parties. When there are no signatures
of comparable and assured standard
on the material record before the trial
Court, it is unsafe to obtain the
signatures of the defendant in open
Court and send the said signatures
and also his vakalat and written
statement to an expert for obtaining
his opinion after comparison of the
signatures thereon with the disputed
signatures on the suit promissory
note, as any such opinion obtained
from a handwriting expert on such
material is not going to be of any
help to the trial Court in effectively
adjudicating the lis more particularly
in the light of the admitted legal
position that expert s opinion evidence
as to handwriting or signatures can
rarely, if ever, take the place of
substantive evidence.”
54
(A.P.) 2023(3)
10. In the light of the above
well considered view of the learned
Judge, this Court is not inclined to
interfere with the order passed by
the learned Trial Judge, though the
reason assigned by it for dismissing
the I.A. in question to the effect that
no steps were taken before
commencement of Trial is not
sustainable. In the light of the above
conclusions, Civil Revision Petition
fails and the same is liable to be
dismissed.”
33. It is thus settled in law that the
defendant s disputed signature on suit
promissory note are not comparable with
his signatures on written statement or/and
vakalat executed in the same suit, for expert
opinion.
34. In view of the above consideration,
this Court does not find any illegality in the
impugned order passed by the learned Trial
Court.
35. No case for interference is made
out in the exercise of supervisory jurisdiction
under Article 227 of the Constitution
of India and particularly, considering both
the grounds together, for rejection of the
petitioner s application.
36. The petition is devoid of merit and
deserves to be dismissed.
37. The Civil Revision Petition is
Dismissed. No order as to costs.
Pending miscellaneous petitions, if any,
shall stand closed in consequence.
--X--
 S.Reddeiah Vs. The State of A.P., & Ors.,
2023(3) L.S. 45 (A.P.)
IN THE HIGH COURT OF
ANDHRA PRADESH
Present
The Hon’ble Mr. Justice
Duppala Venkata Ramana
S.Reddeiah ..Petitioner
Vs.
The State of A.P.,
& Ors., ..Respondent
CRIMINAL PROCEDURE CODE,
Sec.482 - Criminal Petition seeking to
quash the proceedings against
Petitioner/A1 in C.C. for the offence
u/Secs.420 and 423 read with 34 IPC.
HELD: Petitioner/A.1 executed
a registered sale agreement-cum-GPA
in favour of A.2 and in turn A.2 executed
a sale deed in favour of the 2nd
respondent/de-facto Complainant -
Subsequently, 2nd Respondent sold the
said property to L.W.2, who in turn
issued issued a legal notice to the 2nd
respondent about the fraud committed
by him contending he does not have
title - 2nd Respondent in turn filed a
criminal complaint against the
Petitioner/A.1 to A.4 with a view to
pressurize the parties to settle the
dispute of payment of sale
consideration.
No fraudulent intention of the
Petitioner/A.1 to deceive the 2nd
Respondent by selling the property since
Crl.P.No.14541/2013 Date:5-9-2023 55
45
there was another transaction between
A.2 and the 2nd Respondent with regard
to the same subject property - Criminal
petition stands allow ed and the
proceedings in C.C. against the
Petitioner/A.1 stand quashed.
V.Nitesh, Advocate for Petitioner.
Asst.Public Prosecutor (State), Advocate
for Respondents .
T.Janardhan Rao, Advocate for R.2.
O R D E R
In this Criminal Petition filed under
Section 482 Cr.P.C., the petitioner/A.1
seeks to quash the proceedings against
him in C.C.No.469 of 2012 on the file of
the Court of III Additional Judicial First Class
Magistrate, Tirupati for the offence under
Sections 420 and 423 read with 34 IPC.
2. The private complaint filed by the
2nd respondent herein was referred to the
Police by the learned III Additional Judicial
First Class Magistrate, Tirupati under
Section 156(3) Cr.P.C for investigation and
the same was registered by Tiruchanur
Police, Tirupati Urban as a case in Crime
No.203 of 2011 for the offence under
Sections 420 and 423 read with 34 IPC.
The said crime was investigated and
eventually, having found prima facie evidence
against the petitioner/A.1 and A.2 to A.5
regarding their complicity in commission of
the said offences, the investigating officer
has filed a charge sheet in the trial Court
and the same was numbered as C.C.No.469
of 2012 which is now pending trial before
the trial Court.
46 LAW SUMMARY
3. Heard Sri V.Nitesh, learned counsel
for the petitioner/A.1; Sri Y.Jagadeeswara
Rao, learned Assistant Public Prosecutor
for the 1 st respondent/State and Sri
T.Janardhana Rao, learned counsel for the
2nd respondent/de facto complainant.
4. Briefly, the case of the prosecution
is that, the plot in an extent of 224 square
yards as two items situated in Sy.No.33/
2A of Avilala Village accounts, originally
belongs to A.5-B.Ramanjineyulu and he sold
the said property to the petitioner/A.1 under
a registered sale deed dated 07.10.2005.
In turn, the petitioner/A.1 executed an
Agreement-cum-General Power of Attorney
dated 21.04.2007 in favour of A.2 authorizing
him to deal with the said property and
subsequently, A.2 sold the same to the 2nd
respondent/de facto complainant on
10.04.2008 under a sale deed vide
Doc.No.1412 of 2008 by receiving the sale
consideration of Rs.12,30,000/-(the
Government Value of Rs.3,70,000/-).
Thereafter, the 2nd respondent/de facto
complainant sold the said property to
N.Munichandra(LW 2) for a valid
consideration under a registered sale deed
vide Doc.No.1442 of 2010, dated
30.04.2010. W hen the purchaser
N.Munichandra(LW2) entered into the
subject property, he came to know that the
same was under civil litigation, which is the
subject matter of O.S.657 of 2005 filed by
L.W.5-N.Satya Prasunamba seeking the
relief declaration and permanent injunction
against A.5 and others, on the file of the
Court of V Additional Junior Civil Judge,
Tirupati. A.5, who is the vendor of A.1, was
56
(A.P.) 2023(3)
the 4 defendant in the said suit. On that,
th
L.W.2(N.Munichandra) issued a notice to
the 2nd respondent/de facto complainant
about the fraud committed by them and in
turn, the 2 nd respondent/de facto
complainant approached A.1 to A.4
requesting them to return the sale
consideration paid by him, but they did not
respond. As such, the 2nd respondent/de
facto complainant filed a complaint before
the Court of III Additional Judicial First Class
Magistrate, Tirupati, the same was forwarded
to Tiruchanur Police Station, Tirupati Urban
for investigation. The said crime was
investigated, and eventually having found
prima facie evidence against the petitioner/
A.1 and A.2 to A.5 regarding their complicity
in commission of the said offence and
causing loss of Rs.12,30,000/- to the 2nd
respondent/de facto complainant, the
charge sheet was filed.
5. Learned Counsel for the petitioner/
A.1 would submit that A.5-B.Ramanjineyulu
sold the subject property to the petitioner/
A.1 by suppressing the fact of pendency
of the civil litigation, though he was a party
to the said suit proceedings as 4th defendant
in a suit in O.S.No.657 of 2005 filed by
N.Satya Prasunamba(L.W.5) for declaration
of title and permanent injunction and the
said suit was decreed in her favour and
subsequent to his purchase, many
transactions were made in between A.2,
2nd respondent/de facto complainant and
L.W.2(N.Mmunichandra).
6. Learned Counsel for the petitioner/
A.1 would further submit that if petitioner/
 S.Reddeiah Vs. The State of A.P., & Ors., 47
A.1 knows about the pendency of the and the claim against petitioner/A.1, A.3
litigation, he would not have purchased the and A.4 was dismissed, the present
property by paying the sale consideration complaint filed the 2nd respondent/de facto
in the year 2005. Subsequently, the complainant is false and vexatious. Further,
petitioner/A.1 sold the said property to A.2. he would submit that the private complaint
In turn, A.2 sold the very same property filed by the 2 nd respondent/de facto
to the 2nd respondent/de facto complainant complainant on the file of III Additional Judicial
in the year 2008 and the 2nd respondent/ Magistrate of First Class, Tirupati was
de facto complainant sold the same to forwarded to the Police for investigation
L.W.2(N.Munichandra) on 30.04.2010 and without fulfilling the requirements under
when he entered into the said property, he Priyanka Srivastava Vs. State of Utter
came to know about the civil litigation. Pradesh(2015) 3 ALT (Cri.) 26 (SC) Since
Immediately, the 2nd respondent/de facto the 2nd respondent/de facto complainant
complainant filed a suit in O.S.53 of 2013 did not file his sworn affidavit, the learned
for recovery of sale consideration of Magistrate ought not to have forwarded the
Rs.12,30,000/- with interest against complaint to the Police without recording
petitioner/A.1 and A.2 to A.4 and the said the sworn statement of the 2nd respondent/
suit was decreed against A.2 directing him de facto complainant. He further argued
to pay the amount of Rs.3,70,000/- as per that it is a cardinal principle that when the
the market value, and the said suit was complaint allegations essentially disclose
dismissed against the petitioner/A.1, A.3 a civil dispute and recovery of amount, which
and A.4. He would further submit that if the were decreed in favour of the 2nd respondent/
petitioner/A.1 had knowledge about the de facto complainant against A.2, and not
pendency of the civil litigation, he would a criminal offence, continuation of criminal
not have purchased the property and he proceedings against the petitioner/A.1 would
was falsely implicated in this case and he amount to an abuse of process of the Court.
has not committed any offence, much less He, thus, prayed to quash the proceedings
the alleged offence. arising out of C.C.No.469 of 2012 on the
file of the Court of III Additional Judicial First
7. Learned Counsel for the petitioner/ Class Magistrate, Tirupati against the
A.1 further submits that, as per the petitioner/A.1.
allegations made in the complaint, no case
is made out against the petitioner and the 8. Learned Assistant Public
petitioner is nothing to do with the alleged Prosecutor would submit that the complaint
offence. Further, he would submit that when allegations amply disclose the offence
the civil suit is decreed in favour of the 2nd committed by the petitioner/A.1, inasmuch
respondent/de facto complainant for as he executed an agreement-cum-GPA in
recovery of amount of Rs.3,70,000/- against respect of the subject property in favour of
A.2, who received the sale consideration, A.2 and in turn, A.2 sold the subject property
57
48 LAW SUMMARY
in favour of the 2 respondent/de facto
nd
complainant without having any right or title
or interest therein and with the aid of such
sham and collusive documents, in turn A.2
sold the same property to the 2nd respondent/
de facto complainant from whom L.W.2-
N.Munichandra purchased the property
under a registered sale deed dated
30.04.2010. Later, he came to know about
the pendency of the civil litigation. Therefore,
the acts of the petitioner/A.1 disclose
criminal offence. Further, he argued that the
2nd respondent/de facto complainant filed
a private complaint before the learned
Magistrate and same was forwarded to the
Police and investigated and filed charge
sheet. He would further submit that there
are specific allegations made against the
petitioner/A.1 and A.2 to A.4 who suppressed
the fact of pendency of the civil litigation
and thereby, the 2nd respondent/de facto
complainant sustained huge loss of an
amount of Rs.12,30,000/- paid to A.2
towards sale consideration. As such, the
matter requires trial to ascertain the truth
or otherwise of the said allegations. He
would further submit that there is no merit
in the contention of the petitioner/A.1 that
there is no allegation against him with regard
to the commission of the offence. Therefore,
he would pray for dismissal of the criminal
petition.
9. Learned counsel for the 2 nd
respondent/de facto complainant conceded
with the arguments advanced by the learned
Assistant Public Prosecutor.
10. Having perused the relevant facts
and contentions made by the learned 58
(A.P.) 2023(3)
counsels both for the petitioner and the
respondents, in my considered opinion, the
foremost issue, which requires determination
in the instant case is,
Whether the allegations made against the
petitioner/A.1 would attract the accusation
made against him and whether there are
any merits in the criminal petition to allow?
POINT:
11. In a decision reported in State of
Haryana & Others Vs. Ch.Bhajanlal and
Others AIR 1992 SC 604, the Hon’ble Apex
Court held that in exercise of extraordinary
power conferred under Article 226 of
Constitution of India or the inherent powers
under Section 482 Cr.P.C, the following
categories of cases are given by way of
illustration, wherein, such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise clearly
defined and sufficiently channelized and
inflexible guide, myriad kinds of cases
wherein, such power should be exercised.
The relevant guidelines read as under:
“(1) where the allegations made in
the First Information Report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case
against the accused;
(2) where the allegations in the First
Information Report and other
 S.Reddeiah Vs. The State of A.P., & Ors., 49
materials, if any, accompanying the proceedings and/or where there is a
F.I.R. do not disclose a cognizable specific provision in the Code or the
offence, justifying an investigation concerned Act, providing efficacious
by police officers under Section redress for the grievance of the
156(1) of the Code except under an aggrieved party;
order of a Magistrate within the
purview of Section 155(2) of the (7) where a criminal proceeding is
Code; manifestly attended with mala fide
and/or where the proceeding is
(3) where the uncontroverted maliciously instituted with an ulterior
allegations made in the FIR or motive for wreaking vengeance on
‘complaint and the evidence collected the accused and with a view to spite
in support of the same do not him due to private and personal
disclose the commission of any grudge.”
offence and make out a case against
the accused; 12. As can be seen from the decision
supra, the 1st guideline is to the effect that
(4) where the allegations in the FIR even if the complaint allegations are
do not constitute a cognizable accepted to be true on their face value, if
offence but constitute only a non- they do not constitute any offence, then
cognizable offence, no investigation the criminal proceedings against the
is permitted by a police officer petitioner/A.1 can be quashed.
without an order of a Magistrate as
contemplated under Section 13. In Chandran Ratnaswami Vs.
155(2) of the Code; K.C.Palanisamy and others(2013) 6 SCC
740, the Hon’ble Apex Court held at Para
(5) where the allegations made in the 60 as follows:
FIR or complaint are so absurd and
inherently improbable on the basis “60. We are of the definite opinion
of which no prudent person can ever that the complainant has manipulated
reach a just conclusion that there and misused the process of court
is sufficient ground for proceeding so as to deprive the appellants from
against the accused; their basic right to move freely
anywhere inside or outside the
(6) where there is an express legal country. Moreover, it would be unfair
bar engrafted in any of the if the appellants are to be tried in
provisions of the Code or the such criminal proceedings arising out
concerned Act (under which a criminal of the alleged breach of a joint venture
proceeding is instituted) to the agreement specially when such
institution and continuance of the disputes have been finally resolved
59
50 LAW SUMMARY
by the court of competent jurisdiction.
Hence, allowing the criminal
proceedings arising out of FIR No.
7 of 2007 to continue would be an
abuse of the process of the court
and, therefore, for the ends of justice
such proceedings ought to be
quashed. Since the High Court failed
to look into this aspect of the matter
while passing the impugned order,
in our opinion, the same could not
be sustained in law.”
14. In another decision reported in
Paramjeet Batra Vs. State of
Uttarakhand and others(2013) 11 SCC
673 the Hon’ble Apex Court at Para No.12
held as follows:
“12. While exercising its jurisdiction
under Section 482 of the Code the
High Court has to be cautious. This
power is to be used sparingly and
only for the purpose of preventing
abuse of the process of any court
or otherwise to secure ends of
justice. W hether a complaint
discloses a criminal offence or not
depends upon the nature of facts
alleged therein. Whether essential
ingredients of criminal offence are
present or not has to be judged by
the High Court. A complaint disclosing
civil transactions may also have a
criminal texture. But the High Court
must see whether a dispute which
is essentially of a civil nature is given
a cloak of criminal offence. In such
a situation, if a civil remedy is
60
(A.P.) 2023(3)
available and is, in fact, adopted as
has happened in this case, the High
Court should not hesitate to quash
the criminal proceedings to prevent
abuse of process of the court.”
15. The above said judgments squarely
applicable to the present facts of this case
of nature. Admittedly, A.5 having knowledge
about the pendency of the suit in O.S.657
of 2005 filed by L.W.5(N.Satya Prasunamba)
seeking declaration of title and permanent
injunction against him and others in
connection with the subject property and
the said suit was decreed, sold the property
to the petitioner/A.1 in the year 2005. In
turn, the petitioner/A.1 executed an
agreement-cum-GPA in favour of A.2 and
subsequently, A.2 sold the property to the
2nd respondent/de facto complainant, who
sold the property to L.W2-N.Munichandra.
Further, it reveals that when L.W.2-
Munichandra tried to enter into the subject
property, he came to know that none of
the vendors have title over the subject
property and notices were exchanged in
between L.W.2(N.Munichandra) and the 2nd
respondent/de facto complainant. When
L.W.2-Munichandra demanded the 2nd
respondent/de facto complainant to repay
the sale consideration, he filed a suit for
recovery of the amount in O.S.No.53 of
2013 against the petitioner/A.1 and A.2 to
A.4 and the said suit was decreed on
11.10.2022 against A.2 directing him to pay
the sale consideration of Rs.3,70,000/- as
per the market value, the claim against the
petitioner/A.1, A.3 and A.4 was dismissed
and the copy of the judgment is filed by
 S.Reddeiah Vs. The State of A.P., & Ors.,
the petitioner’s counsel as a material paper.
This itself, is an indicator of the position
that it is essentially a dispute of civil nature.
It is evident that there is no element of
criminality which can stand attracted in a
matter which essentially involves a civil
dispute between L.W.2(Munichandra) and
the 2nd respondent/ de facto complaint. In
so far as the petitioner/A.1 is concerned,
none of the ingredients for the offence under
Sections 420 and 423 IPC have been found
to exist after the investigation was complete.
Neither the F.I.R nor the charge sheet
contains any reference to the essential
requirements under Section 420 or 423 IPC.
In this backdrop, the continuation of
prosecution against the petitioner/A.1 would
amount to an abuse of the process of law
where the civil dispute is sought to be given
the colour of criminal wrong.
16. Therefore, the issue is, assuming
the allegations in the complaint are un-
controverted, whether the offences under
Sections 420 and 423 IPC are made out
against the petitioner/A.1.
17. At this juncture, it is relevant to
refer to Section 420 IPC which reads as
under:
420. Cheating and dishonestly State of Bihar and another(2009) 8 SCC
inducing delivery of property.— 751 the Hon’ble Apex Court at Para No.8
W hoever cheats and thereby held as follows:
dishonestly induces the person
deceived to deliver any property to
any person, or to make, alter or
destroy the whole or any part of a
valuable security, or anything which
is signed or sealed, and which is
61
51
capable of being converted into a
valuable security, shall be punished
with im prisonment of either
description for a term which may
extend to seven years, and shall also
be liable to fine. At this juncture,
it is relevant to refer to Section 423
IPC which reads as under:
423. Dishonest or fraudulent
execution of deed of transfer
containing false statement of
consideration.—W hoever
dishonestly or fraudulently signs,
executes or becomes a party to any
deed or instrument which purports
to transfer or subject to any charge
any property, or any interest therein,
and which contains any false
statement relating to the
consideration for such transfer or
charge, or relating to the person or
persons for whose use or benefit it
is really intended to operate, shall
be punished with imprisonment of
either description for a term which
may extend to two years, or with
fine, or with both.
18. In a decision reported in
Mohammed Ibrahim and others Vs.
“8. This Court has time and again
drawn attention to the growing
tendency of the complainants
attempting to give the cloak of a
criminal offence to matters which are
52 LAW SUMMARY
essentially and purely civil in nature,
obviously either to apply pressure on
the accused, or out of enmity towards
the accused, or to subject the
accused to harassment. Criminal
courts should ensure that
proceedings before it are not used
for settling scores or to pressurise
parties to settle civil
disputes.………...”
19. In the instant case, a perusal of
the material on record would show that the
petitioner/A.1 had purchased the subject
property from A.5 on 07.10.2005. The
petitioner/A.1 executed a registered sale
agreement-cum-GPA dated 21.04.2007 in
favour of A.2 and in turn A.2 executed a
sale deed in favour of the 2nd respondent/
de facto complainant on 10.04.2008.
Subsequently, on 30.04.2008 the 2 nd
respondent/de facto complainant sold the
said property to L.W.2(N.Munichandra).
When L.W.2 issued a legal notice to the
2nd respondent/de facto complainant about
the fraud committed by him, without having
a title over the subject property, to overcome
the same, the 2nd respondent/de facto
complainant filed a criminal complaint on
16.11.2011 against the petitioner/A.1 and
A.2 to A.4 with a view to pressurize the
parties to settle the dispute of payment of
sale consideration. When the parties have
not come forward to settle the dispute, he
filed a suit in O.S.53 of 2013 against the
petitioner/A.1 and A.2 to A.4 who are the
defendants in the suit, for recovery of amount
62
(A.P.) 2023(3)
which was said to have been paid to his
vendor, and the said suit was decreed
against A.2, who received the sale
consideration from the 2nd respondent/de
facto complainant and the suit against the
petitioner/A.1, A.3 and A.4 was dismissed.
20. Therefore, when a sale deed was
executed by A.2 conveying the property
claiming ownership thereto, it may be
possible for the purchaser under such sale
deed to allege that the vendor has cheated
him by making a false representation of
ownership and fraudulently induced him to
part with the sale consideration. But, in this
case, L.W.2(N.Munichandra) is the
purchaser of the property from the 2nd
respondent/de facto complainant. If at all
he has any grievance, he should have filed
a complaint against his vendor. But, L.W.2
has not initiated either civil or criminal
proceedings, but his vendor i.e., the 2nd
respondent/de facto complainant initiated
the present criminal proceedings. Therefore,
there was no fraudulent intention of the
petitioner/A.1 to deceive the 2nd respondent/
de facto complainant by selling the property.
There was another transaction between A.2
and the 2nd respondent with regard to the
same subject property. Therefore, in this
case of nature, clearly brings out a situation
which is an abuse of process of the Court
or for the purpose of securing ends of justice,
the interference of this Court is absolutely
necessary. One of such cases of this nature
would be desirably fall for quashing criminal
proceedings initiated illegally and
vexatiously or as being without
jurisdiction.
 LAW SUMMARY
2023 (3)
Telangana High Court Reports
2023 (3) L.S. 1 (D.B.) (T.S)
IN THE HIGH COURT OF
TELANGANA
Present:
The Hon'ble Dr.Justice
Chillakur Sumalatha &
The Hon'ble Dr.Justice
G. Radha Rani
R. Shiva Kumar ..Petitioner
Vs.
Smt. R.Shivaranjani & Anr., ..Respondents
HINDU ADOPTIONS AND
MAINTENANCE ACT, Sec.18(2)(A) -
Family Court Appeal - Respondent No.1/
Wife and Respondent No.2/Minor son
moved an application before the Family
Court invoking Section 18(2)(A) of Hindu
Adoptions and Maintenance Act seeking
for a direction to the Appellant to pay
them a sum of Rs.10,000/- each towards
monthly maintenance - Family Court
through the impugned order granted
a sum of Rs.3,000/- per month each to
Respondents – Hence, present appeal.
HELD: When a valuable
property stands in the name of the
parents of the Appellant and when there
is no capacity for the Respondents to
maintain themselves, the Appellant-
F.C.A.No.60/2012. Date:13.03.2023 63
Husband is bound to maintain the
Respondents - Plea that he has to
maintain his parents cannot be
appreciated – Appeal stands dismissed.
Srinivas Polavarapu, For the Petitioner.
M Venkateswari, For the Respondent.
J U D G M E N T
Heard Sri Srinivas Polavarapu,
learned counsel for the appellant, as well
as Smt.M.Venkateswari, learned counsel
appearing for respondent Nos.1 and 2.
2. Challenge in this Family Court
Appeal is the order that is rendered by the
Family Court, Hyderabad, in O.P.No. 983
of 2009, dated 19.09.2011.
3. Respondent No.1 in the capacity
of wife and respondent No.2 in the capacity
of minor son moved an application before
the Family Court, Hyderabad, invoking
section 18(2)(A) of Hindu Adoptions and
Maintenance Act, 1956, seeking for a
direction to the appellant herein to pay them
a sum of Rs.10,000/- each towards monthly
maintenance. The Family Court through the
impugned order, granted a sum of Rs.3,000/
- per month each to respondent Nos.1 and
2 towards maintenance directing the
appellant herein to pay the same. Aggrieved
2 LAW SUMMARY (T.S.) 2023(3)
by the said order, the appellant is before capacity and capability of the appellant while
this Court. awarding maintenance, hence, the impugned
order is liable to be set aside.
4. Main contention is that the
appellant, who is mentally depressed due 5. Vehem ently opposing the
to the adamant attitude of his wife i.e. submission thus made, learned counsel for
respondent No.1 herein, is unable to do any the respondent, on the other hand, submits
work and therefore, he cannot pay said that the respondents have no independent
sum to respondent Nos.1 and 2 towards source of income and therefore, they moved
maintenance. Learned counsel for the an application for grant of maintenance.
appellant submits that there is no material Learned counsel submits that though a
on record to show that the appellant has request was made to award a sum of
got his own sources of income and that Rs.10,000/- each per month towards
he has capacity to maintain the respondents maintenance, the Family Court awarded a
but without observing those aspects, the meager sum of Rs.3,000/- each per month
Family Court ordered the appellant to pay to respondent Nos.1 and 2 and the appellant
huge sum as maintenance and therefore, without paying even such sum has preferred
the appellant preferred the present appeal. the present appeal. Learned counsel seeks
Learned counsel submits that the Family to dismiss the appeal as the appeal lacks
Court placed its reliance mainly upon Ex.P- merits.
7- Encumbrance Certificate and Ex.P-8-
Market Value Certificate in respect of the 6. We have perused the relevant
House bearing No.3-36-246, but indeed the material that is brought on record including
said house stands in the name of the father pleadings of the parties. The relationship
of the appellant and not in the name of the between the parties is not in dispute.
appellant and therefore, the Family Court Furthermore, by the material that is available
ought not to have taken into consideration on record, it is clear that respondent No.2
those documents to award maintenance. lost the affection of his father at the very
Learned counsel also states that the tender age i.e., below the age of one year.
appellant filed an application for restitution Also it is not in dispute that from the date
of conjugal rights and the same was decreed of the birth of the child i.e. respondent No.2,
on 25.08.2008, but respondent No.1 did not respondent No.1 being mother is taking
join the appellant. Learned counsel also care of the child. The appellant, who was
submits that thereafter, the appellant filed subjected to cross-examination while he
an application for grant of divorce and divorce was examined as RW-1 admitted that
was accordingly granted. Learned counsel respondent No.1 failed S.S.C. and remained
finally states that as the Family Court failed unemployee. He also admitted that he is
to take into consideration the financial not suffering with any physical, mental or
64
 Dyapa Nishitha Reddy & Ors., Vs. State of Telangana & Ors., 3
psychological medical problems. The age observations, the Family Court Appeal
of the appellant by the date of filing of O.P. stands dismissed without costs confirming
for maintenance is 30 years. The Family the order that is rendered by the Family
Court having observed the said age, made Court, Hyderabad, in O.P.No.983 of 2009
a pertinent mention that without any medical dated 19.09.2011.
problems for young man of 30 years, there
is no point in considering the plea that he 8. As a sequel, pending
is unable to work due to mental agony. miscellaneous applications, if any, shall
Though as projected by learned counsel for stand closed.
the appellant, Exs.P-7 and P-8 goes to --X--
show that the alleged house stands in the .
name of the father of the appellant yet, one 2023 (3) L.S. 3 (T.S)
thing needs a mention. The appellant has
taken a plea that he has to maintain his IN THE HIGH COURT OF
parents. When such valuable property stands TELANGANA
in the name of the parents of the appellant
Present:
and when there is no capacity for the
The Hon'ble Smt.Justice
respondents to maintain themselves, the
G.Anupama Chakravarthy
appellant-husband is bound to maintain the
respondents. Therefore, his plea that he Dyapa Nishitha Reddy
has to maintain his parents cannot be & Ors., ..Petitioners
appreciated. Also, the amount awarded Vs.
towards maintenance i.e., Rs.3,000/- each State of Telangana
per month to respondent Nos.1 and 2 cannot & Ors., ..Respondents
be termed to be on higher end or that the
award is without any basis. Admittedly, CRIMINAL PROCEDURE CODE,
respondent No.1 is taking care of the child Sec.482 - Criminal Petition by Petitioner/
and the child is unable to maintain himself. Accused No.3 to quash the proceedings
against her in C.C. - Charge sheet has
Therefore, considering the time with which
been filed against the petitioner and
respondent No.1 is bound to dedicate
other accused for the offences under
towards the welfare of the child and as the
Sections 498-A, 406, 417, 323 and 506
child needs maintenance from his father of the Indian Penal Code and Sections
too, we are of the considered view that 3 and 4 of Dowry Prohibition Act, 1961.
there are no grounds to interfere with the
well reasoned order of the Family Court,
Hyderabad. HELD: Petitioner is the resident
of USA and she is the sister-in-law of
7. In the light of the foregoing
Crl.P.No.5156/2023. Date:09.08.2023
65
4 LAW SUMMARY (T.S.) 2023(3)
Respondent No.2 - Petitioner was not respondent No.2 filed a complaint against
in regular contact with her brother i.e., the petitioner and other accused stating
accused No.1 (husband of Respondent that her marriage with accused No.1 was
No.2) - Respondent No.1-Police have
performed on 10.08.2016 and before the
not served notice under Section 41-A
marriage, accused have cheated her by
Cr.P.C. to the Petitioner and they have
giving false information about her husband
not given sufficient time to the Petitioner
to explain her case and on the other (accused No.1) stating that he is a Software
hand, in the charge sheet, her name Engineer, settled in Ireland, getting handful
was shown as absconding – Petitioner salary and he has proper immigration status.
was roped into the case with bald and Further, accused No.1 made telephonic call
general allegations - Fit case to quash to respondent No.2 and stated that he has
the proceedings against the Petitioner Stamp-4 visa and will take her on dependant
- Criminal Petition stands allowed and visa. Thereafter, the marriage was performed.
the proceedings against the Petitioner/
At the time of marriage, as per the demand
Accused No.3 in C.C. stand
made by accused No.1 and his family
quashed.
members, the family of respondent No.2
C.H. Jayakrishna Advocate For the Petitioner gave Rs.10.00 lakhs of cash, 40 tulas of
Public Prosecutor, For the Respondent No. gold, 2.5 Kg of silver, 2 acres of agricultural
1. land at kadthal Mandal towards dowry and
O R D E R Rs.3,00,000/- towards clothes. Further, the
petitioner came to India in july, 2016 and
This Criminal Petition is filed under
the petitioner, along with one Varalakshmi,
Section 482 of Code of Criminal Procedure
demanded the parents of respondent No.2
(for short ‘Cr.P.C.) by the petitioner/accused
more and more for everything. After marriage,
No.3 to quash the proceedings against her
respondent No.2 joined the company of
in C.C. No.4854 of 2020 on the file of the
accused No.1 at her marital home, where
III Additional Junior Civil Judge-cum-III
the petitioner used to live with them. Within
Additional Metropolitan Magistrate,
two days, the petitioner, who is the sister
Cyberabad. A charge sheet has been filed
of accused No.1 and accused No.2 (mother-
against the petitioner and other accused
in-law of respondent No.2) asked respondent
for the offences under Sections 498-A, 406,
No.2 to give her savings but she told them
417, 323 and 506 of the Indian Penal Code
that she spent the money for her marriage.
(for short ‘IPC’) and sections 3 and 4 of
Therefore, the petitioner along with other
Dowry Prohibition Act, 1961.
accused have harassed respondent No.2
2. The brief facts as culled out of the both mentally and physically and also
charge sheet are that on 25.08.2020, demanded to get more gold from her parents.
It is further alleged that the petitioner slapped
66
 Dyapa Nishitha Reddy & Ors., Vs. State of Telangana & Ors.,
respondent No.2 and the father of respondent brother i.e., accused No.1 (husband of
No.2 requested accused No.1 to register respondent No.2). Further, respondent No.1-
their marriage, but accused No.1 did not
register the same intentionally and left India
in September, 2016 alone. T hereafter,
accused No.2 continued to harass
respondent No.2 and accused No.1 did not
send Visa. In September, 2017, when
respondent No.2 went to Dublin, her husband
came with a gujarathi lady and kid and
asked her to go along with them. As
respondent No.2 refused to do the same,
accused No.1 tortured and beat her
indiscriminately. Thereafter, she came to
know that he is not having any job. In the
year 2019, respondent No.2 returned to
India and went to her in-laws house, but
accused No.2 abused her, pushed her out
of the house and threatened her by stating
that she will get entry into the house only
if she sells the agricultural land and give
them money. Therefore, respondent No.2
approached the police and lodged a
complaint against all the accused.
3. Heard learned counsel for the
petitioner and Sri S. G anesh, learned
Assistant Public Prosecutor for respondent
No.1-State. Perused the record.
4. Learned counsel for the petitioner
contended that the petitioner is innocent
of the alleged offence and to wreck
vengeance respondent No.2 foisted a false
complaint against her; the petitioner is the
resident of Cumming gA 30028, USA and
she is the sister-in-law of respondent No.2;
she was not in regular contact with her
67
5
Police have not served notice under Section
41-A Cr.P.C. to the petitioner and they have
not given sufficient time to the petitioner
to explain her case and on the other hand,
in the charge sheet, her name was shown
as absconding. It is further contended that
the respondent No.1- Police have not
conducted preliminary investigation as per
the guidelines issued by the Apex Court
in Lalita Kumari v. State of Uttar pradesh
(2014) 2 SCC 1 and have directly registered
the case by colluding with respondent No.2.
T herefore, prayed to quash all the
proceedings against the petitioner.
5. To support his contentions, learned
counsel for the petitioner relied upon the
judgement passed by the Hon’ble Apex
Court in Kahkashan Kausar @ Sonam v.
State of Bihar (2022) 6 SCC 599, wherein
the Lordships have held as under:
“35. The ultimate object of justice is
to find out the truth and punish the
guilty and protect the innocent. To
find out the truth is a herculean task
in majority of these complaints. The
tendency of implicating husband and
all his immediate relations is also
not uncommon. At times, even after
the conclusion of criminal trial, it is
difficult to ascertain the real truth.
The courts have to be extremely
careful and cautious in dealing with
these complaints and must take
pragmatic realities into consideration
6 LAW SUMMARY
while dealing with matrimonial cases.
The allegations of harassment of
husband’s close relations who had
been living in different cities and never
visited or rarely visited the place
where the complainant resided would
have an entirely different complexion.
The allegations of the complaint are
required to be scrutinized with great
care and circumspection.
6. The Courts should be careful in
proceeding against the distant relatives in
crimes pertaining to matrimonial disputes
and dowry deaths. The relatives of the
husband should not be roped in on the
basis of omnibus allegations unless specific
instances of their involvement in the crime
are made out.”
(ii) In Preeti Gupta v. State of Jharkhand
(2010) 7 SCC 667, the Lordships have held
as under:
“32. Unfortunately, at the time of filing
of the complaint the implications and
consequences are not properly
visualized by the complainant that
such complaint can lead to
insurmountable harassment, agony
and pain to the complainant, accused
and his close relations.
33.The ultimate object of justice is
to find out the truth and punish the
guilty and protect the innocent. To
find out the truth is a herculean task
in majority of these complaints. The
(T.S.) 2023(3)
tendency of implicating husband and
all his immediate relations is also
not uncommon. At times, even after
the conclusion of criminal trial, it is
difficult to ascertain the real truth.
The courts have to be extremely
careful and cautious in dealing with
these complaints and must take
pragmatic realities into consideration
while dealing with matrimonial cases.
The allegations of harassment of
husband’s close relations who had
been living in different cities and never
visited or rarely visited the place
where the complainant resided would
have an entirely different complexion.
The allegations of the complaint are
required to be scrutinized with great
care and circumspection. Experience
reveals that long and protracted
criminal trials lead to rancour,
acrimony and bitterness in the
relationship amongst the parties. It
is also a matter of common
knowledge that in cases filed by the
complainant if the husband or the
husband’s relations had to remain in
jail even for a few days, it would ruin
the chances of amicable settlement
altogether. The process of suffering
is extremely long and painful.
34.Before parting with this case, we
would like to observe that a serious
relook of the entire provision is
warranted by the legislation. It is also
a matter of common knowledge that
68
 Dyapa Nishitha Reddy & Ors., Vs. State of Telangana & Ors.,
exaggerated versions of the incident representation on behalf of respondent No.2.
are reflected in a large number of Hence, the arguments of respondent No.2
complaints. The tendency of over
implication is also reflected in a very
large number of cases.
35. The criminal trials lead to
immense sufferings for all concerned.
Even ultimate acquittal in the trial
may also not be able to wipe out
the deep scars of suffering of
ignominy. Unfortunately a large
number of these complaints have not
only flooded the courts but also have
led to enormous social unrest
affecting peace, harmony and
happiness of the society. It is high
time that the legislature must take
into consideration the pragmatic
realities and make suitable changes
in the existing law. It is imperative
for the legislature to take into
consideration the informed public
opinion and the pragmatic realities
in consideration and make necessary
changes in the relevant provisions of
law.”
6. On the other hand, learned
Assistant Public Prosecutor contended that
the matter has to be decided after conducting
trial by the Court below and the Criminal
Petition cannot be quashed at this juncture.
Therefore, prayed to dismiss the Criminal
Petition.
7. In spite of substituted service
through paper publication, there is no
69
7
are treated as nil.
8. A perusal of the record, it is evident
that the marriage of respondent No.2 and
accused No.1 took place on 10.08.2016
and the petitioner left India on 31.08.2016.
Further, respondent No.2 left India to Dublin
in the month of September, 2017. However,
general allegations are levelled against the
petitioner. Furthermore, petitioner is the
resident of USA and she did not share the
household with respondent No.2 and
accused No.1 at any point of time and the
charge sheet reveals that the petitioner/
accused No.3 is shown as absconding.
Further, petitioner/accused No.3, who is
the sister of accused No.1, was roped into
the case, being the relative of accused
No.1 (husband of respondent No.2).
9. The Hon’ble Supreme Court in State
of Haryana v. Bhajan Lal 1992 Supp.(1)
SCC 335, has held as under:
“(5) Where the allegations made in
the FIR or complaint are so absurd
and inherently improbable on the
basis of which no prudent person
can ever reach a just conclusion that
there is sufficient ground for
proceeding against the accused.
...
...
(7) Where a criminal proceeding is
8 LAW SUMMARY (T.S.) 2023(3)
manifestly attended with mala fide the facts and circumstances of the case.
and/or where the proceeding is
11. The record reveals that the
maliciously instituted with an ulterior
petitioner herein is the resident of USA and
motive for wreaking vengeance on
she attended the marriage of her brother
the accused and with a view to spite
in the year 2016 and left in the same year.
him due to private and personal
In spite of the same, she was roped into
grudge.”
the case with bald and general allegations
(b) In Geeta Mehrotra v. and in the charge sheet, she was shown
State of Uttar pradesh (2012) 10 as absconding. Therefore, this Court is of
SCC 741, the Hon’ble Supreme Court the considered view that it is a fit case to
specifically held that the continuation quash the proceedings against the
of proceedings against whom petitioner.
specific instances of harassment are
12. Accordingly, the Criminal Petition
not alleged in the charge-sheet or
is allowed and the proceedings against the
in the statement, would amount to
petitioner/accused No.3 in C.C. No.4854 of
abuse of process of law.
2020 on the file of the III Additional Junior
(c)In K. Subba Rao v. The State Civil Judge-cum-III Additional Metropolitan
of Telangana (2018) 14 SCC 452, Magistrate, Cyberabad, are hereby
the Hon’ble Supreme Court observed quashed.
as under:
Pending miscellaneous
“6. The Courts should be careful in applications, if any, shall stand closed.
proceeding against the distant
--X--
relatives in crimes pertaining to
matrimonial disputes and dowry .
deaths. The relatives of the husband
should not be roped in on the basis
of omnibus allegations unless
specific instances of their involvement
in the crime are made out.”

10. The above judgements and also

the judgement of Kahkashan Kausar @
Sonam v. State of Bihar (2 supra) relied
upon by the learned counsel appearing for
the petitioner are very much applicable to
70
 United India Insurance Co Ltd Vs. V. Mukthabai & Ors
2023 (3) L.S. 9 (T.S)
IN THE HIGH COURT OF
TELANGANA
Present:
The Hon'ble Smt.Justice
Lalitha Kanneganti
United India Insurance
Co Ltd ..Petitioner
Vs.
V. Mukthabai & Ors ..Respondents
MOTOR VEHICLES ACT - Appeal
by the Insurance Company aggrieved
by the Award of Motor Accidents Claims
Tribunal – When deceased was going
on his motor cycle, a tractor came in
a rash and negligent manner and hit
the deceased - While undergoing
treatment, he was declared brain dead
on the same day.
HELD: Evidence of the owner
of the vehicle is clear that the vehicle
is involved in the accident - Mere delay
in giving the complaint itself cannot be
a ground to disentitle the claimants from
claiming the compensation - Court
below had rightly held that Insurance
Company is liable to pay compensation
- Appeal stands dismissed.
A Malathi, For the Petitioner.
Venkateshwar Varanasi, For the
Respondent.
M.A.C.M.A.No.472/2012 Date:13.03.2023.
71
9
J U D G M E N T
The present Appeal is preferred by
the Insurance Company aggrieved by the
Award dated 03.06.2011 in O.P.No. 379 of
2006 on the file of the learned Chairman,
Motor Accidents Claims Tribunal-cum-
District Judge at Karimnagar.
2. The case of the claimants is that
on 03.02.2005, Sri V. Raghupathi Reddy
(deceased) was going on his motor cycle,
when he reached Marrimuchula Village, a
tractor came in a rash and negligent manner
with high speed in the same direction
without following traffic rules and hit the
deceased. As a result, he fell down and
sustained injuries. He was shifted to
Siddipet Hospital, from there on the advice
of doctors, he was shifted to NIMS and from
there to Yashoda Hospital. While undergoing
treatment, he was declared brain dead on
the same day and for donation of his organs,
he was shifted to NIMS Hospital. The police
registered a case in Crime No. 16 of 2005
under Section 337 IPC. and subsequently,
section of law was altered as Section 304-
A and 201 IPC. Claimant No.1 is wife,
claimants 2 and 3 are daughter and son
of the deceased.
3. The Insurance Company filed the
counter-affidavit denying all the material
allegations. It is stated that this Petition
is bad for non-joinder of necessary parties
i.e. owner and insurer of Hero Honda motor
cycle bearing No.AP 23 F 7458. It is further
stated that the tractor-trailer bearing No.
AP 15 U 6417/6418 is not insured by the
10 LAW SUMMARY (T.S.) 2023(3)
2nd respondent with the Insurance Company. as R.W.1. He stated that he purchased the
Hence, the Insurance Company is not liable tractor-trailer about six years back and sold
to pay the compensation. away the same but he was owner of the
tractor at the time of accident. He came
4. In support of their case, the
to know about the accident to his tractor
claimants examined P.Ws.1 to 3 and got
at Marrimuchula Village at a distance of
marked Exs.A1 to A7. On behalf of the
15 to 20 K.Ms. from their village and one
Insurance Company, R.Ws.1 to 5 were
Balaiah was the driver. He further stated
examined and Exs.B1 to B12 were marked.
that by the time he came to know about
5. The Tribunal had gone through the the accident, he removed the driver. It was
evidence before it and held that the accident stated that he does not know whether the
occurred due to the rash and negligent driver himself surrendered before the police.
driving of the respondent No.1 and The evidence of the owner of the vehicle
accordingly, awarded Rs.10,97,540/- to the is clear that the vehicle is involved in the
claimants with interest at 7.5% per annum accident which is supported by other
from the date of petition till the date of evidence i.e. Exs.A1 and A2 charge sheet
deposit. and FIR. Hence, mere delay in giving the
complaint itself cannot be a ground to
6. Learned Standing Counsel for the disentitle the claimants from claiming the
Insurance Company submits that the compensation. The Court below had rightly
complaint was given after six months from held that the Insurance Company is liable
the date of the accident. It is submitted to pay the compensation. This Court is not
that this was a hit and run case and inclined to interfere with the said Award.
whereabouts of the tractor and other details The Appeal is therefore, liable to be
were not known. According to the learned dismissed.
counsel, the complaint which was given
after six months shows that as an after- 8. The Appeal is accordingly,
thought to gain the compensation, this case dismissed. No order as to costs.
was filed. Learned counsel submits that the
9. Pending miscellaneous petitions,
Tribunal should have taken into consideration
if any, shall stand closed.
this particular aspect and dismissed the
claim petition. --X--

7. In this case, the claimants are wife

and children of the deceased. The deceased
met with an accident and he succumbed
to the injuries. The Insurance Company
examined the owner of the tractor and trailer
72
 Enagandula Venkateswarlu Vs. Erra Ram Shankar
2023 (3) L.S. 11 (T.S)
IN THE HIGH COURT OF
TELANGANA
Present:
The Hon'ble Smt.Justice
Juvvadi Sridevi
Enagandula Venkateswarlu ..Petitioner
Vs.
Erra Ram Shankar ..Respondent
(INDIAN) EVIDENCE ACT, Sec.45
r/w Sec.151 of CIVIL PROCEDURE CODE
- Civil Revision Petition by Petitioners/
Defendants, challenging the Order
passed in I.A., requesting the Court
below to send the joint promissory note
to the handw riting expert for
comparision with admitted signatures.
HELD: When a plea of fraud
is made by claiming that a particular
document has been forged, trial Court
ought not to have stood in the way of
relevant evidence being brought on
record, even at the stage of adducing
further evidence of defendants -
Opinion of the handwriting expert on
the genuineness of the signatures of
the defendants on the subject joint
promissory note, would be necessary
to resolve the conflict between the
parties to the litigation - Civil Revision
stands allowed - Let the joint promissory
note, dated 14.01.2015, be sent to
CRP.No.333/2023. Date: 28.02.2023
73
11
handwriting expert along with the
admitted signatures of the defendants
and with the age of INK, for his opinion,
at the cost of the defendants.
Karunakar Reddy, For the Petitioner.
Erigi Ganesh, For the Respondent.
O R D E R
This Civil Revision Petition, under
Article 227 of the Constitution of India, is
filed by the petitioners/defendants,
challenging the order, dated 14.10.2022,
passed in I.A.No.1 of 2022 in O.S.No.213
of 2017 by the Principal Senior Civil Judge
at Kothagudem.
2. I have heard the submissions of Sri
Karunakar Reddy, learned counsel for the
petitioners/defendants, Sri Erigi Ganesh,
learned counsel for the respondent/plaintiff
and perused the record.
3. For the sake of convenience, the
parties are hereinafter referred to, as per
their array in the subject O.S.No.213 of
2017.
4. The plaintiff filed the subject suit
before the Court below against the
defendants for recovery of money basing
on the alleged joint promissory note, dated
14.01.2015. In the said suit, the defendants
filed the subject application under Section
45 of Evidence Act read with section 151
of CPC requesting the Court below to send
the joint promissory note to the handwriting
12 LAW SUMMARY
expert for comparision with admitted
signatures of the defendants along with the
age of INK, contending that the said joint
promissory note is not supported by the
consideration; the signatures on the revenue
stamp of the said joint promissory note are
forged by the plaintiff in collusion with the
attestors and scribe for the purpose of
wrongful gain; the plaintiff is not known to
the defendants at any point of time; hence,
the said joint promissory note is required
to be sent to handwriting expert along with
the admitted signatures of the defendants
to ascertain the genuineness of signatures
and age of INK, else the defendants would
suffer irreparable loss.
5. The plaintiff filed counter in the
subject application contending that the joint
promissory note was executed by the
defendants after borrowing Rs.4,00,000/-
from the plaintiff, in the presence of attesting
witnesses; the subject application is filed
to drag on the proceedings; if at all the
suit joint promissory note is a forged one,
the defendants would have filed the subject
application along with the written statement;
the subject application is filed at a belated
stage; and the subject application is not
maintainable.
6. On merits, the Court below
dismissed the subject application. Aggrieved
by the same, the defendants filed this Civil
Revision Petition.
7. Learned counsel for the petitioners/
74 interest
(T.S.) 2023(3)
defendants would submit that the defendants
and the plaintiff are strangers to each other
and hence, the question of execution of
subject promissory note does not arise.
The subject joint promissory note is a forged
one, created for the purpose of wrongful
gain of the plaintiff. Since the suit is based
on subject joint promissory note, dated
14.01.2015, and since the defendants are
disputing their signatures on the said
promissory note, it is just and necessary
to send the subject promissory note to
handwriting expert to ascertain the
genuineness of the same and for effective
adjudication of the dispute between the
parties and ultimately prayed to set aside
the order under challenge and allow the
Civil Revision as prayed for. In support of
his contentions, the learned counsel relied
on the decision of the Hon’ble High Court
of Punjab and Haryana in Chamkaur Singh
v. Mithu Singh, Decided on 29.10.2013
in CR No.3434 of 2013 and a decision of
the Hon’ble High Court of Madras in Selvaraj
v. Kolandayee, Decided on 17.07.2013 in
Civil Revision Petition (PD) no.1472 of
2010.
8. Per contra, the learned counsel for
the respondent/plaintiff would submit that
the defendant No.2 is the wife of defendant
No.1 and they are closely acquainted with
the plaintiff. They borrowed an amount of
Rs.4,00,000/- from the plaintiff and executed
a joint promissory note dated 14.01.2015,
agreeing to repay the said amount with
@ 24% per annum. In spite of
 Enagandula Venkateswarlu Vs. Erra Ram Shankar
several oral demands, the defendants did
not repay the amount. Vexed with the
attitude of the defendants, the plaintiff filed
the subject suit for recovery of money. Filing
of the subject application to send the joint
promissory note along with admitted
signatures of the defendants to handwriting
expert is nothing but a deliberate attempt
to drag on the suit proceedings. The Court
below rightly dismissed the subject
application assigning reasons. T here is
nothing to interfere with the order under
challenge and ultimately prayed to dismiss
the Civil Revision Petition.
9. In view of the above rival
contentions, the point that arises for
determination in this Civil Revision Petition
is as follows:
“Whether the impugned order, dated
14.10.2022, passed in I.A.No.1 of
2022 in O.S.No.213 of 2017 by the
Principal Senior Civil Judge at
Kothagudem, is liable to be set
aside?”
POINT:-
10. Admittedly, the suit revolves around
the subject joint promissory note, dated
14.01.2015. The case of defendants is that
the signatures on the subject joint
promissory note are not their signatures
and they are forged. The subject application
filed by the defendants has been dismissed
on the ground that the suit is of the year
2017 and it was coming for defendant’s 75 defences available to him/her. Fair trial is
13
further evidence and that defendants have
filed the subject application at a belated
stage and the same is intended only to
protract the matter. But, in my opinion, the
subject application cannot be dismissed on
the ground of belatedness. Even though
the opinion of the handwriting expert cannot
be conclusive, it is an important piece of
evidence to hold whether the suit document
is forged document or not. Though, no doubt,
the Courts have also got power under Section
73 of the Evidence Act to compare the
disputed signature in order to give a finding
on the issue involved, but at the same time,
the Courts normally take the assistance
of the handwriting expert. In Tarak Nath
Sha v. Bhutoria Bros. Pvt. Ltd and others,
AIR 2002 SC 2063, the Hon’ble Apex Court
held as follows:-
“Ordinarily, the Court should not take
upon itself the responsibility of
comparing signatures when disputed.
T hose are matters of intrinsic
technicalities requiring some amount
of technical expertise. A signature
apparently may look alike but when
examined by experts, various flaws
may be detected. But without such
expert examination, the Court cannot
for sure accept the signature of the
author denying it.”
11. Further, there can be no denial of
the fact that a party to the litigation needs
to be afforded a fair trial to exhaust all the
14 LAW SUMMARY
an important component of justice delivery
system and if fair trial is not ensured, a
trial may be vitiated. Fair trial is the sine
qua non of both civil and crim inal
jurisprudence and the same has been
recognized as a fundamental right under
Article 21 of the Constitution of India. To
prove that the signature was not made by
him/her, a party can very well request the
Court to forward the document for expert
opinion. The Court below, having stated that
subject application is filed at a belated stage,
dismissed the same as not maintainable.
Thus, this Court is of the opinion that the
Court below had unjustly prevented the
defendants from establishing an important
factual claim, by refusing to send the suit
promissory note to a handwriting expert to
give his opinion as to its genuineness. When
a plea of fraud is made by claiming that
a particular document has been forged, the
Court below ought not to have stood in the
way of relevant evidence being brought on
record, even at the stage of adducing further
evidence of defendants. Further, the
apprehension of the plaintiff that the subject
application seeking handwriting experts’
opinion is intended to drag on the
proceedings is baseless. The Court below
ought not have entertained such objection,
inasmuch as the burden of proof is only
on the plaintiff to prove that the signatures
found on the joint promissory note are that
of the defendants. It is the duty of the
plaintiff to take such steps. Instead, the
defendants have taken such steps. Therefore,
76
(T.S.) 2023(3)
there cannot be any serious and valid
objection when the defendants themselves
have chosen to take such steps. Under
these circumstances, the Court below ought
to have allowed the subject application
rather than dismissing it as not
maintainable. In the facts and circumstances
of the case, this Court is of the opinion
that obtaining handwriting expert’s opinion
would certainly help the Court to arrive at
a consistent and firm conclusion and that
the defendants are required to be granted
an opportunity to bring on record relevant
evidence, keeping in mind the larger object
of fair trial.
12. In the facts and circumstances of
the instant case, this Court deems it just
and appropriate that the opinion of the
handwriting expert on the genuineness of
the signatures of the defendants on the
subject joint promissory note, dated
14.01.2015, would be necessary to resolve
the conflict between the parties to the
litigation. It is not correct to say that
examination of the subject joint promissory
note by the handwriting expert would not
serve any purpose in the present
context.
13. For the foregoing reasons, this Civil
Revision Petition is allowed by setting aside
the order, dated 14.10.2022, passed in
I.A.No.1 of 2022 in O.S.No.213 of 2017 by
the Principal Senior Civil Judge at
Kothagudem. Consequently, the subject
I.A.No.1 of 2022 stands allowed. Let the
 Kethireddy Narayana Reddy Vs. Addagudi Shankaraiah 15
joint promissory note, dated 14.01.2015, (India) Limited v. Nanak Builders and
be sent to handwriting expert along with Investors Private Limited and Others,
the admitted signatures of the defendants (2013) 5 SCC 397, the Hon'ble Apex Court
made a categorical observation that
and with the age of INK, for his opinion,
"transferee/purchaser may be
at the cost of the defendants, within a period
impleaded in a pending suit for specific
of four (4) weeks from today. performance prior agreement to sale/
contract for sale filed by the buyer under
--X-- the said contract for sale against the
original owner." - Civil Revision stands
allowed.
2023 (3) L.S. 14 (T.S)
A. Venkatesh, For the Petitioner.
IN THE HIGH COURT OF
Sharat Chandra A, For the Respondent.
TELANGANA
O R D E R
Present:
The Hon'ble Mr.Justice This petition is filed by the
Sambasiva Rao Naidu
petitioners who are the plaintiûs in O.S.No.10
of 2017 on the ûle of VIII Additional District
Kethireddy Narayana Reddy ..Petitioner
Vs. Judge, Warangal. This revision is ûled by
Addagudi Shankaraiah ..Respondent the petitioners being aggrieved by the order
of the trial Court in I.A.No.341 of 2019 dated
CIVIL PROCEDURE CODE, Or.1, 17.11.2020 by which the request of the
Rl.10 - Civil Revision by Petitioners/
petitioners herein to implead respondent
Plaintiffs aggrieved by the Order of Trial
Court in I.A. by which the request of Nos.2 to 13 as defendants in O.S.No.10
the Petitioners to implead Respondent of 2017 was rejected. As could be seen
Nos.2 to 13 as Defendants in O.S. was from the order impugned in the present
rejected. revision, it appears that the petitioners/
plaintiûs have ûled O.S.No.10 of 2017
HELD: If the suit betw een
against respondent No.1/defendant for
Petitioners/Plaintiffs and 1st Respondent
is decided without impleading the speciûc performance of sale agreement.
proposed parties and if the suit is The respondent/defendant ûled I.A.No.182
decreed in favour of the Petitioners, of 2017 under Order 7, Rule 11 C.P.C. with
the immediate parties that will be a prayer to reject the plaint. During the
affected by the said judgment are the
pendency of the above referred interlocutory
proposed Defendants - In Thomas Press
application, the petitioners/plaintiûs ûled
CRP.No.122/2021 Date: 28.02.2023 77 I.A.No.341 of 2019 under Order 1, Rule 10
16 LAW SUMMARY (T.S.) 2023(3)
C.P.C. and sought to add 12 more defendant and the above referred sale deeds
defendants to the suit. As per the aûdavit were executed to deprive the legitimate right
ûled in support of the petition, the plaintiûs of the petitioners over the suit property.
have claimed that along with suit, they ûled
3. The respondents i.e., proposed
an interlocutory application vide I.A.No.29
defendants appeared before the Court below
of 2017 under Order 39, Rule 1 and 2 C.P.C.
and respondent No.2/proposed defendant
and sought for ad interim injunction to
No.2 ûled his counter on his behalf and
restrain the respondent/defendant from
on behalf of other respondents and informed
alienating the suit schedule property to any
the Court that the above I.A.No.341 of 2019
3rd parties. The trial Court having considered
has been ûled by the petitioners during the
the arguments of the petitioner, directed the
pendency of other petitions ûled by the
parties to maintain status quo vide Order
respondent under Order 7, Rule 11 C.P.C.
dated 27.01.2017 and the said interlocutory
Therefore, the Court below ought not to
application was posted to 17.02.2017 for
have received the present interlocutory
appearance of respondent. The respondent
application without disposing the petition
having appeared before the Court below
ûled by the defendant under Order 7, Rule
ûled an interlocutory application for rejection
11 C.P.C.
of the plaint.
4. The petitioners/plaintiûs have no
2. The petitioners/plaintiûs have further
prima facie case against the proposed
submitted that while the said petitions are
respondents. The respondents while
pending for enquiry, the respondent/
disputing the plaint averments, claimed that
defendant with malaûed intention, ignoring
the petition ûled by the petitioners is not
the agreement of sale dated 16.08.2012
maintainable and sought for dismissal of
and by violating the impugned order passed
the petition.
by the trial Court, executed a registered
sale deeds in respect of some property in 5. Learned trial Judge having
favour of the proposed defendants. The appreciated the contentions of both parties,
petitions/plaintiûs having furnished the dismissed the application vide Order dated
document numbers and the dates on which 17.11.2020. The petitioners/plaintiûs ûled
the said sale deeds were executed, sought the present revision on the following grounds:
for impleadment of respondent Nos.2 to 13
as defendants to the suit. The petitioners/ 6. The order of the Court below in
plaintiû have claimed that all the proposed I.A.No.341 of 2019 is contrary to the facts
defendants are supports of 1st respondent/ on records. The Court below failed to
78
 Kethireddy Narayana Reddy Vs. Addagudi Shankaraiah 17
appreciate that the petitioners have got good to chose as to against whom they want
case on merits, thereby ought to have to contest the suit.
allowed the petition ûled by the petitioners.
7. Learned counsel for the petitioners
The Court below did not appreciate the
has submitted that though the Court below
claim of the petitioners/plaintiûs about the
placed reliance on Thomson Press (India)
alienation of suit schedule property by
Ltd., v. Nanak Builders and Investors Pvt.
defendants in favour of the proposed
Limited reported in (2013) 5 SCC 397,
defendants during the subsistence of status
a portion of the judgment was extracted
quo orders. Therefore, the Court below ought
in the order without understanding the
to have impleaded the parties as defendant
concept of the above said judgment. Learned
Nos. 2 to 13 for adjudication of the dispute
counsel while relying on another judgment
once for all. The petitioners/plaintiûs have
between Robin Ramjibhai Patel v.
claimed that the observations made by the
Anandibai Rama and Others, (2018) 15
trial Court that the transaction between the
SCC 614 and argued that in a suit for
respondent/defendant with other
speciûc performance of contract
respondents is hit by section 52 of Transfer
subsequent transferees being likely to be
of Property Act is in correct and the Court
aûected by outcome of suit are proper
below miscarried itself by citing Thomson
parties thereby they have to be impleaded
Press (India) Ltd., v. Nanak Builders and
as defendants.
Investors Pvt. Ltd., reported in (2013) 5
SCC 397 and Vidur Impex and Traders 8. Heard both parties.
Pvt., Ltd., and others v. Tosh Apartments
Pvt., Ltd., and Others reported in 2012 9.Now the point for consideration is :
(8) SCC 384 as the facts and circumstances
1. Whether the respondent Nos.2 to
of those cases are diûerent to the case
13/proposed defendants are proper and
on hand. The petitioners/plaintiûs have
necessary parties to O.S.No.10 of 2017?
claimed that the Court below miscarried
If so, whether the Court below committed
itself by stepping into the shoes of the
an error by dismissing the application ûled
respondents and had cited the above
by the petitioners/plaintiûs?
authorities which were never relied upon by
the respondents and by applying these 2. Whether the order of the Court
authorities which are not relevant to the below in I.A.No.341 of 2019 is liable to be
present case the Court below ought to have set aside and whether the request of the
appreciated the facts that the petitioners petitioners/plaintiû to impleade respondent
are dominus litus, therefore, they are entitled 79 No.s2 to 13 as defendants Nos.2 to 13 can
18 LAW SUMMARY
be allowed?
10. POINT:
The petitioners herein are plaintiûs in
O.S.No.10 of 2017 ûled for speciûc
performance of agreement of sale between
the petitioners and 1st respondent/
defendant.
11. It is true when the petitioners/
plaintiûs ûled the above referred interlocutory
application, another application ûled by the
respondents/defendants under Order 7, Rule
11 C.P.C. was pending for adjudication.
However, as could be seen from the order
impugned in the present revision it is quite
clear that the application ûled by the
defendant under Order 7, Rule 11 C.P.C.
(for rejection of the plaint) was dismissed
by the Court below before disposing
I.A.No.341 of 2019.
12. As per the record placed before
this Court, it is also clear that along with
plaint, the petitioners/plaintiûs ûled a petition
under Order 39, Rule 1 and 2 C.P.C. and
sought for interim injunction restraining the
alienation of the suit schedule property by
respondent No.1/defendant. It seems the
Court below directed both the parties to
maintain status quo while issuing notice
to 1st respondent/defendant.
13. The respondent/defendant having
appeared before the Court below ûled a
80
(T.S.) 2023(3)
petition for rejection of the plaint. However,
he did not choose to ûle counter and submit
arguments in the petition ûled by the
petitioner vide I.A.No.341 of 2019. There is
no dispute about the status quo order that
was passed by the Court below. Similarly,
there is no dispute about the alienation of
the suit schedule property by the respondent/
defendant in favour of the respondent Nos.2
to 13/proposed defendants under various
sale deeds.
14. Learned counsel for the petitioner
has submitted that since the suit itself is
ûled for speciûc performance of sale
agreement in respect of the property that
was subsequently alienated by the defendant
to the proposed defendants, the very
purpose of the suit would be defeated if
the respondents are not impleaded as
defendants to the suit.
15. In the light of what has been
claimed by the proposed parties, it is very
clear that they have obtained diûerent sale
deeds in respect of suit schedule property.
If the suit between petitioners/plaintiûs and
1st respondent / defendant is decided
without impleading the proposed parties and
if the suit is decreed in favour of the
petitioners, the immediate parties that will
be aûected by the said judgment are the
proposed defendants.
16. Trial Court though placed reliance
on judgment in Thomson Press (India) Ltd.
 Kethireddy Narayana Reddy Vs. Addagudi Shankaraiah
v. Nanak Builders and Investors Pvt. Ltd.,
extracted only a portion of order in the
judgment without understanding the actual
purport of the Order. In the judgment relied
on by the petitioners/plaintiûs vide Robin
Ramjibhai Patel v. Anandibai Rama and
Others, the Hon’ble Apex Court was pleased
to observe that in view of the order of the
Order 1, Rule 10 C.P.C. the necessary
parties in suit for speciûc performance of
contract for sale are not only parties to
the contract or their legal representatives,
but also a person who have purchased
contracted property from the vendor. The
Hon’ble Apex Court considered its judgment
in Katuri v. Iyyamperumal, (2005) 6 SCC
733 wherein it was observed that “when
the suit ûled for speciûc performance of
contract was pending, respondent Nos.1,
4 to 11 who are not parties to the contract
has set a claim of indecent title and
possession over the contracted property
ûled an application to get themselves added
in the suit as defendants. The trial Court
allowed the application on the ground that
such respondent has direct interest in the
subject matter of the suit and hence their
presence would be necessary to decide
the controversy raised in the suit. The High
Court conûrmed the said order and then
the plaintiû approached the Hon’ble
Supreme Court. The Hon’ble Apex Court
in Para No.21 made the following
observation :
81
19
“It may be reiterated here that if the
appellant who has ûled the instant
suit for speciûc performance of
contract for sale even after receiving
the notice of claim of title and
possession by Respondents 1 and
4 to 11 does not want to join
Respondents 1 and 4 to 11 in the
pending suit, it is always done at
the risk of the appellant because he
cannot be forced to join Respondents
1 and 4 to 11 as party-defendants
in such suit. In the case of Ramesh
Hirachand Kundanmal v.
Municipal Corpn. of Greater
Bombay on the question of
jurisdiction this Court has clearly laid
down that it is always open to the
court to interfere with an order allowing
an application for addition of parties
when it is found that the courts below
had gone wrong in concluding that
the persons sought to be added in
the suit were necessary or proper
parties to be added as defendants
in the suit instituted by the plaintiû-
appellant. In that case also this Court
interfered with the orders of the courts
below and rejected the application
for addition of parties. Such being
the position, it can no longer be said
that this Court cannot set aside the
impugned orders of the courts below
on the ground that jurisdiction to
invoke power under Order I Rule 10
20 LAW SUMMARY (T.S.) 2023(3)
CPC has already been exercised by of the claim raised by the petitioners/
the two courts below in favour of plaintiûs, dismissed the application ûled by
Respondents 1 and 4 to 11.” the petitioners/plaintiûs which in fact could
have been allowed by permitting the
17. It is true in a suit, plaintiû is dominus
petitioners/plaintiûs to implead the proposed
litis and he is the master of the suit, cannot
respondents as defendants.
be forced to add any 3rd party against
whom he does not want to proceed. But 19. In the result, the revision is allowed
here it is a case where the petition is ûled with costs.
by the plaintiû with a speciûc plea that the
As a sequel, pending
1st respondent/defendant alienated the
Miscellaneous Applications, if any, shall
schedule property in spite of an order by
stand closed.
trial Court directing the parties to the suit
to maintain status quo in favour of --X--
respondent Nos.2 to 13. Therefore, as rightly
argued by the counsel for the petitioners, .
if the suit is decided without impleading the
proposed defendants and if the suit is
decreed in favour of the petitioners/plaintiûs, .
the ultimate suûers, parties aûected by the
decree are none other than the proposed
respondents/defendants.

18. In Thomas Press (India) Limited

v. Nanak Builders and Investors Private
Limited and Others, (2013) 5 SCC 397.
The Hon’ble Apex Court made a categorical
observation that “transferee/purchaser may
be impleaded in a pending suit for speciûc
performance prior agreement to sale/
contract for sale ûled by the buyer under
the said contract for sale against the original
owner.” Therefore, the Court below without
understanding the actual purport of the
judgment and without proper appreciation
82
 LAW SUMMARY
2023(3)
Summary Recent Cases
2023 (3) S.R.C. 1 (Supreme Court) heirs in the property of a deceased co-
parcener, the first step is to ascertain the
Vikram Nath, J. Union Territory
share of the deceased him self in the co-
Ahsanuddin Amanullah,J. of Ladakh
parcener property.
C.A.No.5707/2023 Vs.
--X--
Date:6-9-2023 Jammu & Kashmir
2023 (3) S.R.C. 4 (Supreme Court)
National Conference
Aniruddha Bose, J. Abhishek
The High Courts cannot refuse to Sanjay Kumar, J. Vs.
follow its binding judgment on the ground S.V.N. Bhatti State of M.P.
that a reference has been made against Crl.A.No.1457/2015
it to the larger Bench or a review is pending Date:31-8-2023
against it.
--X-- CRIMINAL PROCEDURE CODE,
Sec.482 - The High Courts can quash an
2023 (3) S.R.C. 2 (Supreme Court) FIR even if charge sheet was filed while
the petition filed under Sec.482 Cr.P.C.
J.B.Pardiwala, J. Balwantbhai Somabhai
was pending.
Manoj Misra, J. Bhandri
--X--
C.A.No.4955/2022 Vs.
Date:6-9-2023 Hiralal Somabhai
2023 (3) S.R.C. 5 (Supreme Court)
Contractor(deceased)
Ahsanuddin Amanullah, J. Satibir Singh
CIVIL CONTEMPT - Litigants will S.V.N.Bhatti, J. Vs.
be liable for “civil contempt” on willful breach SLP(Crl.)1258/2022 State of Haryana
of their behalf of by their Advocate to the Date:29-8-2023
Court.
--X-- CRIMINAL PROCEDURE CODE,
Sec.311 - The power u/Sec.311 of Cr.P.C
2023 (3) S.R.C. 3 (Supreme Court) should be invoked when “....it is essential
for the just decision of the case”.
C.P.Ravi Kumar,J. Derha
--X--
Sanjay Kumar, J. Vs.
C.A.No.4494/2010 Vishal & Anr.,
Date:1-9-2023 2023 (3)) S.R.C. 6 (Supreme Court)

A.S.Bopanna, J. Dhon Dubai

HINDU SUCCESSION ACT, 1956, Prashant Kumar Mishra, J. Vs.
Sec.6 - In order to ascertain the share of C.A.Nos.5459/2023 etc., Hanmantappa
83
2 LAW SUMMARY (SRC) 2023(3)
Date:28-8-2023 Bandappa 2022 (2) S.R.C. 9(High Court of A.P.)
Gandigudu. Lrs.,
Ravi Nath Tilhari, J. Sk.Ahmmad
MOTOR VEHICLES ACT - The Dr.K.Manmadha Rao,J. Vs.
insurance Company is not liable if the W.P.No.21489/12 State of A.P.
claimant was travelling in the Trailer Date:18-8-2023
attached to the Tractor, which was not not
insured though Tractor was insured. SERVICE LAWS - The petitioner
--X-- did not approach the authorities seeking
2023 (3) S.R.C. 7 (Supreme Court) a promotion was not a suitable ground to
deny the same.
A.S.Bopanna, J. Kubrabibi --X--
Prashant Kumar Mishra, J. Vs.
C.A.No.5461/2023 Oriental Insurance 2022 (2) S.R.C. 10 (High Court of A.P.)
Date:28-8-2023 Co., Ltd.,
B.V.L.N.Chakravarthi, J. Kottakota
CRP.No.4776/2016 Lakkappa
MOTOR VEHICLES ACT - Where Date:18-8-2023 Vs.
compensation is sought and even in the B.Lakkappagari
absence of definite proof of income - The Chikkaiah
social status of deceased is to be kept
in perspective where such persons are CIVIL PROCEDURE CODE, Or.8,
employed in unrecognized sector and the Rule 1-A(3) - The defendant should provide
national income, in any event, is required sufficient reasons if they fail to file documents
to be taken into consideration. with the written statement while filing an
--X-- application in Or.8, Rule 1-A(3) of
CPC.
2023 (3) S.R.C. 8 (High Court Telangana)
--X--
Alok Aradhe, C.J. M/s.Visweswara
T.Vinod Kumar, J. Infrastructure Pvt. Ltd., 2023 (3) S.R.C. 11 (High Court Telangana)
W.P.No.697/2023 Vs.
Date:24-8-2023 The Telangana State Surepalli Nanda, J. Amina Begum
Industrial Infrastructure W.P.No.6889/2019 Vs.
Corpn., Ltd., Date:16-8-2023 State of Telangana

CONSTITUTION OF INDIA, AADHAR CARD - Citizen of India

Art.226 - Title disputes cannot be cannot be denied his/her statutory rights
adjudicated upon by the High Court in writ for not possessing an Aadhar Card.
jurisdiction under Art.226 of Constitution of
India, since the writ proceedings are --X--
summary in nature.
--X--
84
85
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