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Tuesday, May 31, 2016

Deposit of title deed requires stamp duty & if it is mortgage , it requires registration though styled as Deposit of title deed = It is relevant here to state that letter dated 29th March, 2007 of the Finance Commissioner inter alia makes instrument of deposit of title-deeds compulsorily registerable under Section 17(1)(c) of the Registration Act. However, the parties may choose to have a memorandum prepared only showing deposit of the title-deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates right, liability or extinguishes those, same requires registration.=The document was executed on a white paper. Article 7 of Schedule 1-A of the Indian Stamp Act, 1899 was amended by substituting the said Article under the Act 19 of 2005 w.e.f. 01-08-2005 requiring proper stamp duty. Article 35 of Schedule 1-A of the Act deals with Mortgage deed. In either of the cases, it requires stamp duty and if it is a mortgage deed, it further requires registration though it is styled as Memorandum of Deposit of Title deeds.

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            

CIVIL REVISION PETITION No.432 of 2015  

23-11-2015

Satti Venkateswara ReddyPetitioner

Mallidi Venkata Reddy Respondent  

Counsel for the Petitioner : Sri J.Sreenivasa Rao

Counsel for the Respondent: Sri Gangadhar Chamarthy

<Gist :

>Head Note :

? Cases referred

1.AIR 1965 Supreme Court 1591
2.1996 (3) Andhra Law Times 605
3.2014 (1) Andhra Legal Decisions 13 (SC)


HONBLE SRI JUSTICE A. RAMALINGESWARA RAO          
Civil Revision Petition No.432 of 2015

ORDER:

        The defendant in O.S.No.109 of 2010 is the petitioner herein and the
respondent/plaintiff filed the said suit on the file of IV Additional District
Judge, Tanuku, seeking a preliminary decree for Rs.8,95,101/- against the
defendant based on equitable mortgage created in respect of the property of
dry land of an extent of Ac.0.10 cents in R.S.No.437/1 and an extent of
Ac.0.64 cents in R.S.No.437/2 situated in Penugonda village and Mandal,
West Godavari District.  When PW.1 was being examined, he wanted to  
mark the document styled as Memorandum of Deposit of Title Deed,
which was executed subsequent to the execution of promissory note dated
28-03-2008 and the defendant objected to the marking of the same.  The
defendant raised the objection that the said document is compulsorily
registerable as required under Section 17 (1) (c) of the Registration Act.
There was no dispute with regard to the document being unregistered.  The
trial Court overruled the objection by order dated 27-01-2015 and
challenging the same, the present Civil Revision Petition is filed.
        The document in question was styled as Memorandum of Deposit of
Title Deed dated 30-03-2008.  It states that on 28-03-2008 the executant
took a loan of Rs.6,00,000/- on the basis of promissory note and the lender
required the lendee to secure the said loan by some immovable property on
29-03-2008 and in furtherance of the said requirement, he wanted to
create a security of the property, which was registered under document
No.433 of 2003 in favour of lendee and handed over the original document
as security with a condition that after payment of full amount under the
promissory note, the original document along with the promissory note
would be taken back.  The document also recites that the lender is entitled
to recover the amount against the property given as security.  The
document in Telugu reads as follows:
        ?? ?????? ???? ??.28.3.2008? ??.??.?????? ?? ???? ????? ??.6,00,000-  
00 ?? ??????? ??? ???????????? ?????? ?????? ????????? ????????? ??      
???? ????? ???????? ??????? ????????? ???? ???????? ???? ?????????      
?????? ????????.  ???? ???????? ???? ????? ???? ?????? ??????    
???????? ????? ??????? ???????????? ??????? ???? ????? ??29.3.2008?      
??.??.?????? ????????? ?????? ???? ?????????? ?? ???? ???? ???????? ? ??    
???? ??????????? 433 ??? 2003???? ?? ???? ?????????? ?????? ????? ?????????      
?? ?????? ?? ????? ??????? ???? ???? ????? ?????? ??????    
??????? ???? ?? ???????? ??????????? ???? ?????? ?????? ????????      
???????? ???????? ?????????? ?????? ???? ?????????? ????? ????????? ??      
???????? ????????? ????? ???????? ???? ?????? ???? ???????? ?????.  ?????      
???? ????? ???? ???? ????? ????? ??????? ????? ?????? ???? ?? ????    
?????????? ???? ???? ?????????? ???????????    

        Learned counsel for the defendant relied on various decisions before
the trial Court, whereas the learned counsel for the plaintiff relied on the
judgment of the Supreme Court reported in State of Haryana and others v.
Navir Singh and another ((2014 (1) ALD 13 SC).  The trial Court by relying
on a Division Bench judgment of this Court in Durga Emporium,
Vijayawada v. M/s. Munaga Brothers Cloth Merchants, Cuddapah (2002  
(5) ALD 135 DB) overruled the objection.  The trial Court mainly held that
the document was executed subsequent to taking of the loan and since it
was executed for the past transaction and for the purpose of security for
the debt, the document creates only equitable mortgage under Section 58
(f) of the Transfer of Property Act, 1882 and it is not compulsorily
registerable document as required under Section 17 (1) (c) of the
Registration Act.
        The relevant portion of Section 17 of the Registration Act, 1908
reads as follows:
17. Documents of which registration is compulsory-

(b) other non-testamentary instruments which purport or operate to
create, declare, assign, limit or extinguish whether in present or in
future, any right, title or interest whether vested or contingent, of the
value of one hundred rupees and upwards, to or in immovable
property;

        (c) non-testamentary instruments which acknowledge the receipt or
payment of any consideration on account of the creation, declaration,
assignment, limitation or extinction of any such right, title or
interest

        With regard to deposit of title deeds, way back, the Madras High
Court in Muthiah Chetty v. Kodandarama Swami Naidu (31 MLJ 347) held
that if the document contains a clause that the lender may sell the property
in default of payment on the agreed date, the power of sale creates an
interest not only in the property but also in the title deeds and the said
transaction of the document is chargeable as a regular mortgage deed.  The
law on this aspect was summarized by the Supreme Court in United Bank
of India Ltd., v. M/s. Lekharam Sonaram and Co. and others  as follows:
A mortgage by deposit of title deeds is a form of mortgage
recognised by Section 58(f) of the Transfer of Property Act which
provides that it may be effected in certain towns (including Calcutta)
where a person " delivers to a creditor or his agent documents of title to
immovable property with intent to create a security thereon." In other
words, when the debtor deposits with the creditor title deeds of his
property with an intent to create a security, the law implies a contract
between the parties to create a mortgage and no registered instrument is
required under Section 59 as in other classes of mortgage. It is essential
to bear in mind that the essence of a mortgage by deposit of title deeds
is the actual handing over by a borrower to the lender of documents of
title to immovable property with the intention that those documents
shall constitute a security which will enable the creditor ultimately to
recover the money which he has lent. But if the parties choose to reduce
the contract to writing, this implication of law is excluded by their
express bargain, and the document will be the sole evidence of its terms.
In such a case the deposit and the document both form integral parts of
the transaction and are essential ingredients in the creation of the
mortgage. It follows that in such a case the document which constitutes
the bargain regarding security requires registration under Section 17 of
the Indian Registration Act, 1908, as a non-testamentary instrument
creating an interest in immovable property, where the value of such
property is one hundred rupees and upwards. If a document of this
character is not registered it cannot be used in the evidence at all and the
transaction itself cannot be proved by oral evidence either. In the case of
Kedarnath Dutt v. Shamloll Khettry, 11 Ben. L.R. (O.C.J.) 405 Couch
C.J. stated as follows :
" The rule with regard to writings is that oral proof cannot be substituted
for the written evidence of any contract which the parties have put into
writing. And the reason is that the writing is tacitly considered by the
parties themselves as the only repository and the appropriate evidence
of their agreement. If this memorandum was of such a nature that it
could be treated as the contract for the mortgage and what the parties
considered to be the only repository and appropriate evidence of their
agreement, it would be the instrument by which the equitable mortgage
was created, and would come within Section 17 of the Registration
Act.
        A learned single Judge of this Court in Thota Venkata Narasamma v.
S.V.M. Srinivasan  considered the case of execution of promissory note on
30-05-1983 followed by execution of Memorandum of Title deeds on
02-06-1983.  When a suit was filed on the basis of equitable mortgage by
deposit of title deeds to realize the pronote amount and the objection of the
defendant was overruled by the trial Court, this Court, considering the
recitals of the agreement held that it was a compulsorily registerable
document under Section 17 of the Registration Act.
        The Supreme Court in State of Haryana and others v. Navir Singh
and another  examined the case of the mortgage by deposit of title deeds
and held as follows:
        Mortgage inter alia means transfer of interest in the specific
immovable property for the purpose of securing the money advanced by
way of loan. Section 17(1)(c) of the Registration Act provides that a
non-testamentary instrument which acknowledges the receipt or
payment of any consideration on account of the creation, declaration,
assignment, limitation or extension of any such right, title or interest,
requires compulsory registration. Mortgage by deposit of title-deeds in
terms of Section 58(f) of the Transfer of Property Act surely
acknowledges the receipt and transfer of interest and, therefore, one may
contend that its registration is compulsory. However, Section 59 of the
Transfer of Property Act mandates that every mortgage other than a
mortgage by deposit of title-deeds can be effected only by a registered
instrument. In the face of it, in our opinion, when the debtor deposits
with the creditor title-deeds of the property for the purpose of security, it
becomes mortgage in terms of Section 58(f) of the Transfer of Property
Act and no registered instrument is required under Section 59 thereof as
in other classes of mortgage. The essence of mortgage by deposit of
title-deeds is handing over by a borrower to the creditor title-deeds of
immovable property with the intention that those documents shall
constitute security, enabling the creditor to recover the money lent. After
the deposit of the title-deeds the creditor and borrower may record the
transaction in a memorandum but such a memorandum would not be an  
instrument of mortgage. A memorandum reducing other terms and  
conditions with regard to the deposit in the form of a document,
however, shall require registration under Section 17(1)c) of the
Registration Act, but in a case in which such a document does not
incorporate any term and condition, it is merely evidential and does
not require registration.
This Court had the occasion to consider this question in the case of
Rachpal v. Bhagwandas, AIR 37 1950 SC 272, and the statement of law
made therein supports the view we have taken, which would be evident
from the following passage of the judgment:
4. A mortgage by deposit of title-deeds is a form of mortgage
recognized by S. 58(f), T.P. Act, which provides that it may be effected
in certain towns (including Calcutta) by a person delivering to his
creditor or his agent documents of title to immovable property with
intent to create a security thereon. That is to say, when the debtor
deposits with the creditor the title-deeds of his property with intent to
create a security, the law implies a contract between the parties to create
a mortgage, and no registered instrument is required under S.59 as in
other forms of mortgage. But if the parties choose to reduce the contract
to writing, the implication is excluded by their express bargain, and the
document will be the sole evidence of its terms. In such a case the
deposit and the document both form integral parts of the transaction and
are essential ingredients in the creation of the mortgage. As the deposit
alone is not intended to create the charge and the document, which
constitutes the bargain regarding the security, is also necessary and
operates to create the charge in conjunction with the deposit, it requires
registration under S.17, Registration Act, 1908, as a non-testamentary
instrument creating an interest in immovable property, where the value
of such property is one hundred rupees and upwards. The time factor is
not decisive.
The document may be handed over to the creditor along with the title-
deeds and yet may not be registerable This Court while relying on
the aforesaid judgment in the case of United Bank of India v. M/s.
Lekharam Sonaram & Co., AIR 1965 SC 1591 reiterated as follows:
7. It is essential to bear in mind that the essence of a
mortgage by deposit of title-deeds is the actual handing over by a
borrower to the lender of documents of title to immovable property with
the intention that those documents shall constitute a security which will
enable the creditor ultimately to recover the money which he has lent.
But if the parties choose to reduce the contract to writing, this
implication of law is excluded by their express bargain, and the
document will be the sole evidence of its terms. In such a case the
deposit and the document both form integral parts of the transaction and
are essential ingredients in the creation of the mortgage. It follows that
in such a case the document which constitutes the bargain regarding
security requires registration under Section 17 of the Indian Registration
Act, 1908, as a non-testamentary instrument creating an interest in
immovable property, where the value of such property is one hundred
rupees and upwards. If a document of this character is not registered it
cannot be used in the evidence at all and the transaction itself cannot be
proved by oral evidence either. Bearing in mind the principles
aforesaid, we proceed to consider the facts of the present case. It is
relevant here to state that letter dated 29th March, 2007 of the Finance
Commissioner inter alia makes instrument of deposit of title-deeds
compulsorily registerable under Section 17(1)(c) of the Registration
Act. In such contingency, registration fee and stamp duty would be
leviable. But the question is whether mortgage by deposit of title-deeds
is required to be done by an instrument at all. In our opinion, it may be
effected in specified town by the debtor delivering to his creditor
documents of title to immoveable property with the intent to create a
security thereon. No instrument is required to be drawn for this purpose.
However, the parties may choose to have a memorandum prepared only   
showing deposit of the title-deeds. In such a case also registration is not
required. But in a case in which the memorandum recorded in writing
creates right, liability or extinguishes those, same requires registration.
In our opinion, the letter of the Finance Commissioner would apply in
cases where the instrument of deposit of title-deeds incorporates terms
and conditions in addition to what flow from the mortgage by deposit of
title-deeds. But in that case there has to be an instrument which is an
integral part of the transaction regarding the mortgage by deposit of title-
deeds. A document merely recording a transaction which is already
concluded and which does not create any rights and liabilities does not
require registration.
Nothing has been brought on record to show existence of any instrument
which has created or extinguished any right or liability. In the case in
hand, the original deeds have just been deposited with the bank. In the
face of it, we are of opinion that the charge of mortgage can be entered
into revenue record in respect of mortgage by deposit of title-deeds and
for that, instrument of mortgage is not necessary. Mortgage by deposit of
title-deeds further does not require registration. Hence, the question of
payment of registration fee and stamp duty does not arise. By way of
abundant caution and at the cost of repetition we may, however, observe
that when the borrower and the creditor choose to reduce the contract in
writing and if such a document is the sole evidence of terms between
them, the document shall form integral part of the transaction and same
shall require registration under Section 17 of the Registration Act. From
conspectus of what we have observed above, we do not find any error in
the judgment of the High Court.
(emphasis supplied)
        In the instant case, the document in question contains two
statements viz., 1) the document relating to the land, which was registered
as document No.433 of 2003 was handed over as security for the loan
amount; 2) in case of failure to repay the amount, the lender was given full
rights to recover the amount against the property secured. If it is a simple
document depositing title deed as a security, it would not have required
registration, but when authorised the lender to take action for recovery of
money on the basis of such deposit of title deed coupled with
Memorandum, it requires registration.  This distinction was not maintained
by the trial Court.
      The document was executed on a white paper.  Article 7 of Schedule
1-A of the Indian Stamp Act, 1899 was amended by substituting the said
Article under the Act 19 of 2005 w.e.f. 01-08-2005 requiring proper
stamp duty.  Article 35 of Schedule 1-A of the Act deals with Mortgage
deed.  In either of the cases, it requires stamp duty and if it is a mortgage
deed, it further requires registration though it is styled as Memorandum of
Deposit of Title deeds.
        Accordingly, the order dated 27-01-2015 in O.S.No.109 of 2010
passed by the IV Additional District Judge, Tanuku is set aside and the
objection raised by the defendant is upheld. The Civil Revision Petition is
accordingly allowed.  No costs.
_________________________  
A.RAMALINGESWARA RAO, J      
Date: 23-11-2015

Rasta rights - Requires No Registration =licence is granted to Satyanarayana, the plaintiff, to use the same passage which was already in existence and which was provided for the lands of the said Krishna Rao @ Krishnamurthy, the executant of the document. Admittedly, no title or ownership over the said passage is created under the document in favour of Satyanarayana, the plaintiff, who is the beneficiary under the document. He was only permitted to reach his lands through the said passage, which passage the executant of the document has already provided for his lands. Therefore, to my mind the document in question created no right in immovable property; and, only irrevocable permission was accorded under it to use the existing passage by granting licence so to say. Viewed thus, this court finds that the document in question does not require registration.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI        

Civil Revision Petition no.261 of 2012

17-02-2016

Dwara Satyanarayana. Petitioner
                               

Malladi Bhanumathi and 6 others . Respondents  

Counsel for the Petitioner: Sri M.S.N. Prasad

Counsel for Respondents 1, 2 &7 :  Sri T.S. Anand
Counsel for respondents 3 to 6 : none

<Gist :

>Head Note:

?Cases referred:

1.AIR 1929 Madras 79


THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          


Civil Revision Petition No.261 of 2012

ORDER:

        This civil revision petition under Article 227 of the Constitution of
India
by the petitioner/plaintiff is directed against the orders dated 10.11.2011 of
the learned Principal Junior Civil Judge, Kovvur wherein and whereby the
learned Principal Junior Civil Judge refused to admit in evidence the document
dated 15.05.1996 tendered in evidence during the further examination in chief
of PW1 (the plaintiff) on the ground that the said document, which is
unregistered, cannot be admitted in evidence for want of registration.
2.      I have heard the submissions of the learned counsel for the revision
petitioner/plaintiff (the plaintiff, for short) and the learned counsel for
the
respondents/defendants (the defendants, for short).  I have perused the
material record including the copy of the document in question.
3.      The facts, which fall for consideration, in brief, are as follows:
      The plaintiff brought the suit against the defendants for declaration of
right in ABCDEF schedule passage [also shown in the plaint plan] to reach his
lands and for a consequential injunction restraining the defendants from
interfering with the plaintiffs peaceful possession and enjoyment of the right
in regard to the said passage and not to cause any obstructions for ingress and
egress and for carrying on agricultural produce through the passage to the
Southern side Vadapalli to Chandravaram road  (punta).  The defendants are
resisting the said suit.  At trial, during the further examination in chief of
PW1,
the plaintiff tendered for marking the document dated 15.05.1996 in support of
his claim in regard to the plaint schedule passage.  However, the learned
counsel for the defendants had raised an objection for marking the said
document on the ground that the said document discloses an easement by way  
of passage and creates some interest in property, though no title and
ownership are given, and that the said document is inadmissible in evidence as
it is unregistered.  In support of the said objection raised, he had placed
reliance on a decision in Hamir Ram v. Varisng Raimal [1999(1) ALT 18.4 (DN)
(OHC).  On the other hand, the learned counsel for the plaintiff had submitted
that the transaction under the document is incapable of valuation and that the
contents of the document can be taken into consideration though the
document is unregistered.  In support of his contentions, he had placed
reliance on the decision in Varghese Paul and others v. Narayanan Nair and
others [AIR 1999 Kerala 417].  Having heard the submissions of the learned
counsel for both the sides and having referred to the provisions of Sections
2(6)
and 17 of the Registration Act and following the ratio in the decision of Orissa
High Court in Hamir Rams case (supra), the trial Court had held that the
document in question created some interest in the property, that is, in regard
to the usage of passage and that, therefore, the document requires
registration; and that the document is a compulsorily registerable document.
The trial Court had accordingly upheld the objection raised on behalf of the
defendants and had refused to admit the said document in evidence.
4.      Feeling aggrieved, the plaintiff filed this revision petition.  It is
inter
alia contended on behalf of the plaintiff as follows:  The trial Court had
erroneously held that the document in question requires registration without
properly considering the ratio in the decision in Varghese Paul cited on behalf
of the plaintiff and by wrongly applying the ratio in the decision of the Orissa
High Court in Hamir Rams case, which is inapplicable.  The document in
question is not registerable much less compulsorily registerable under Section
17 of the Registration Act as under the said document only permission is given
to the plaintiff to use the passage for tractors, bullock carts, cattle and for
carrying on agricultural implements, but no right is created in the immovable
property comprised in the passage.  Therefore, the provisions of the Indian
Registration Act, which require compulsory registration, are not applicable to
the document in question.  The trial Court did not properly appreciate the
nature of the transaction encompassed in the document and also the provisions
of law and had arrived at an incorrect conclusion that the document requires
registration and that it is a compulsorily registerable document.  The learned
counsel for the plaintiff placed reliance on the decision in Musunoori
Satyanarayana Murti v. Chekka Lakshmayya and others .
5.      On the other hand, the learned counsel for the defendants while
supporting the findings of the trial Court had inter alia contended that the
suit
is filed for declaration in regard to the plaint schedule passage, which is
shown
in the plaint plan, and that in the suit for declaration, an easement in regard
to
a passage is claimed and that though under the document an easement in
regard to way or passage is created some interest in the immovable property is
also there and that though no title or ownership are given under the said
document in regard to the said passage, the document, as rightly held by the
Court below, is compulsorily registerable and that the court below has rightly
applied the ratio in the decision of the Orissa High Court as an easement by
way of passage creates some interest in the property but no title or ownership
in the same.  He had finally urged that the document requires registration and
hence, the revision petition is liable to be dismissed.
6.      In the decision in Musunoori Satyanarayana Murti, the issue is in regard
to the plaintiffs right to let out drainage water through the drainage channel
passing through the defendants fields and such right is based upon an
easementary right granted to the plaintiff under a document executed by the
father of the defendant and it is a letter.  The Madras High Court noted that
under Section 6(c) of the TP Act an easement cannot be transferred apart from
the dominant heritage and that Section 54 of the TP Act taken along with
Section 6(c) would appear to contemplate the transfer of an existing easement
as distinguished from the creation of the imposition of a new easement and
that there is a clear distinction between the transfer of an existing easement
and the creation or grant of a new easement and that the transfer of an
existing easement is the act of the dominant owner and is inseparable from the
transfer of the dominant heritage, while the creation of a new easement is the
act of an owner imposing a burden on his property.  On the above reasoning the
Madras High court held that the grant of an easement does not involve such a
transfer of ownership in immovable properties as is contemplated by Section 54
of the TP Act and hence, the said document does not require registration.  In
the cited decision, the decision in Bhagwan Sahai v. Narasingh Sahiah [(1909)
31 ALL.612] was referred to, wherein it was held as follows:

It seems clear to me that the creation of a right of easement by grant is
not such a transfer of ownership as is contemplated by S.54 of the Act.
Where under that section an easement is transferred it must be so
transferred along with the dominant heritage.  There is no other way of
transferring it and this arises by reason of the nature of the right.  It exists
only for the benefit of the heritage and to supply its wants.  There is
nothing in law which necessitates the creation of an easement being
evidenced by writing.

7.      I have given detailed and thoughtful consideration to the facts and the
submissions.  I have carefully gone through the contents of the document; as,
not nomenclature but the content of the document determines the nature of
the transaction.
8.      The said document was executed on 15.05.1996 in favour of the plaintiff
by Krishnarao @ Krishnamurthy, S/o Satyanarayanamurthy, who is said to be
the father of the defendants 1 and 2.  In this document, it is stated that the
said Krishnarao, the executant of the document, had self acquired the
properties in Rs.Nos.290/1, 276, 275/1 and 275/6 and that he had provided a
way to the Northern portion of his lands from Vadapalli Chandravaram punta
which is on the South and that the plaintiff Satyanarayana is provided way from
the said passage to the land sold to him i.e., land in S.No.275/1 and 275/6 to
go to his lands from Southern side Vadapalli to Chandravaram punta.  It is
further stated in this document that through the said passage tractors, carts,
cattle and agricultural implements can be taken and for the same no objection
would be raised and that the document is executed with consent.  The
document was signed by the said Krishnarao @ Krishnamurthy and was attested  
by two witnesses and also bears the signature of the scribe.  It was executed on
non judicial stamp paper of the value of Rs.100/-.  A plain reading of the
document shows that already the executant of the document had provided a
right of way from a punta to his lands and that he had permitted the said
Satyanarayana to use the same passage to reach his land, which was sold to
him i.e., the land in S.No.275/1 and 275/6.  Therefore, under this document,
in the well considered view of this Court, licence is granted to Satyanarayana,
the plaintiff, to use the same passage which was already in existence and
which was provided for the lands of the said Krishna Rao @ Krishnamurthy, the
executant of the document.  Admittedly, no title or ownership over the said
passage is created under the document in favour of Satyanarayana, the
plaintiff, who is the beneficiary under the document.  He was only permitted to
reach his lands through the said passage, which passage the executant of the
document has already provided for his lands.  Therefore, to my mind the
document in question created no right in immovable property; and, only
irrevocable permission was accorded under it to use the existing passage by
granting licence so to say.  Viewed thus, this court finds that the document in
question does not require registration.  Though one of the contentions of the
defendants, who are objecting for marking of the document on the ground that
it requires registration, is also that the said document is a forged document,
that aspect need not be considered by this Court in this Revision petition as it
is for the trial Court to go into the said aspect at the appropriate stage, in
case
the document is eventually admitted in evidence and necessary evidence is
adduced by both the sides to prove and disprove the document.
9.      Having regard to the facts and reasons, this Court holds that the order of
the Court below is liable to be set aside. As a result, the trial Court is
directed
to admit the suit document in evidence provided the plaintiff pays the stamp
duty and penalty, if any, payable on the said document as per the provisions
applicable to the transaction of licence.
10.     In the result, the Civil Revision Petition is, accordingly, allowed.
There
shall be no order as to costs.
        Miscellaneous petitions pending, if any, in this civil revision petition
shall stand closed.

__________________  
M. SEETHARAMA MURTI, J    
Date:17.02.2016

Monday, May 30, 2016

A divorced Muslim woman is entitled for maintenance during the iddat period in view of Section 3 (i) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CRL.P.No.6645 OF 2010  

28-03-2016

S.Rehana Sulthana @ Rehana Begum ...Petitioner  

B.Mohammad Ghouse & Another...Respondent    

Counsel for Petitioner  : Sri K.V.Subba Reddy

Counsel for the respondent: Sri M. Bhaskar

<GIST:

>HEAD NOTE:  

?Cases referred
1 2003 (1) ALT (Cri.) 369
2 (2002) 7 SCC 518
3 (2007) 6 SCC 555
4 (2008) 13 SCC 689
5 (2011) 12 SCC 347

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CRIMINAL PETITION No.6645 OF 2010    

ORDER:
1       This Criminal Petition is filed under Section 482 Cr.P.C. seeking
to quash the order dated 08.06.2009 passed in Crl.R.P.No.110 of
2007 by the learned Principal District & Sessions Judge, Ananthapur,
wherein and whereby the order dated 22.10.2007 passed by the
learned Judicial Magistrate of I Class, Ananthapur in M.C.No.38 of
2006 was confirmed.
2       The learned counsel for the petitioner would submit that the
Courts below misconstrued the scope of Sub-Section 4 of Section 125
Cr.P.C. and dismissed the petition.  He would further submit that the
Courts below failed to appreciate that the petitioner left the
matrimonial home because of the harassment meted out by the
respondent and his family members.  It is his further submission that
the Courts below failed to appreciate that Talaqnama dated
14.09.2006 has no legal sanctity for non-following the procedure
contemplated under Mahomedan Law.  He further submitted that the
findings of the courts below are perverse as the same are not based
on any material.   He further submitted that no notice was served on
the petitioner intimating the pronouncement of Talaq by the
respondent.
3       Per contra, the learned counsel for the respondent submitted
that this Court shall not lightly interfere with the concurrent findings
of fact recorded by the Courts below.  He further submitted that the
findings recorded by the Courts below are supported by oral and
documentary evidence more so legally admissible evidence.  He
further submitted that it is not a fit case to quash the impugned order
by invoking the inherent jurisdiction of this Court under Section 482
Cr.P.C.
4       The facts of the case that led to the filing of the present petition
are succinctly as follows:
5       The petitioner filed a petition under Section 125 Cr.P.C.
claiming maintenance of Rs.6,000/- p.m. from the respondent inter
alia stating that her marriage with the respondent was performed on
22.01.2006 as per Muslim rites and caste customs. As per the
allegations made in the petition, the parents of the petitioner gave
Rs.2.00 lakhs of cash and 12 tulas of gold to the respondent at the
time of marriage towards dowry.  Immediately after the marriage, she
joined the respondent to lead marital life.  The respondent and his
family members subjected her to cruelty and hence she lodged
complaint with the Station House Officer, Mahila Police station,
Ananthapur, who in turn registered a case in Cr.No.26 of 2006 under
Section 498-A of IPC. Two months prior to the filing of the petition for
maintenance the respondent necked out the petitioner from
matrimonial home without honouring the advice of the elders. Several
panchayats held to settle the dispute between the parties but in vain.
The respondent is a government employee and getting salary of
Rs.10,000/- per month.  Hence the petition.
6       The respondent filed counter admitting the factum of marriage,
inter alia, contending that the petitioner stayed in the house of the
respondent for a period of ten days only.  The petitioner insisted the
respondent for setting up of separate family for which the respondent
refused. Therefore, the petitioner left the house of the respondent.  On
06.05.2006 the respondent got issued a notice to the petitioner
requesting her to join with him.  On 18.5.2006 the petitioner executed
an agreement in the presence of the elders agreeing that she will not
insist for separate family and join with him.  On 14.8.2006 the
petitioner lodged a false complaint to the Station House Officer,
Mahila Police station, Ananthapur who in turn registered it as a case
in Cr.No.26 of 2006 against the respondent and his family members
for the offence under Section 498-A of IPC.  Having no other
alternative, the respondent pronounced Talaq in the presence of
elders on 14.09.2006 and sent notice to the petitioner informing
pronouncement of talaq along with demand drafts, which was
returned as unserved.  The petitioner is a divorced woman and hence
she is not entitled to claim maintenance from the respondent.  The
petitioner has been working as Hindi Pandit in Vivekananda High
School, Gooti and getting salary of Rs.3,000/-p.m. The respondent is
working as Lineman in A.P.TRANSCO and getting salary of Rs.4,000/-
p.m. Hence the petition may be dismissed.
7       Before the trial Court on behalf of the petitioner P.Ws.1 and 2
were examined but no document was marked.  On behalf of the
respondent R.Ws.1 and 2 were examined and Exs.R.1 to R.17 were  
marked.
8       The trial Court after having thoughtful consideration to the oral
and documentary evidence available on record, arrived at a
conclusion that the petitioner herself left the matrimonial home
without any justifiable reason.  The trial Court further observed that
the petitioner is a divorced woman, therefore, she is not entitled to
claim maintenance from the respondent and dismissed the petition.
9       Feeling aggrieved by the order of dismissal dated 22.10.2007
passed by the trial Court in M.C.No.38 of 2006, the petitioner
preferred Crl.R.P.No.110 of 2007 before the learned Principal District
& Sessions Judge, Ananthapur. The learned Principal District &
Sessions Judge, Ananthapur after reappraising the material available
on record, fully endorsed the findings recorded by the trial Court and
dismissed the Criminal Revision Petition.  Hence the present Criminal
Petition.
10      Now the points that arise for consideration in this Criminal
Petition are:
i.      Whether the petitioner is entitled to claim
maintenance from the respondent?
2.      Whether the findings recorded by the trial
Court are perverse, warranting interference
of this Court?
POINT Nos.1 & 2:
11      Both the points are intertwined with each other and hence I am
inclined to address these two points simultaneously in order to avoid
recapitulation of facts and evidence.
12      The chronological dates and events may throw some light on
the real controversy.  The marriage of the petitioner was performed
with respondent on 22.01.2006 as per Muslim rites and caste
customs. In the presence of elders the petitioner and the respondent
entered into an agreement on 18.05.2006 in order to lead peaceful
and happy married life.  Be that as it may, unfortunately bad weather
prevailed in the family life of the petitioner and respondent within no
time from the date of marriage.  Basing on the complaint lodged by
the petitioner, the Station House Officer, Mahila Police station,
Ananthapur registered a case in Cr.No.26 of 2006 under Section 498-
A of IPC against the respondent and his family members on
14.8.2006.  On 22.08.2006 the petitioner filed the petition before the
trial Court.
13      In order to claim maintenance, the petitioner has to satisfy the
ingredients of Sub-Sections (1) & (4) of Section 125 Cr.P.C. which
read as follows:
125. Order for maintenance of wives, children and parents: (1) If any
person having sufficient means neglects or refuses to maintain:
a)      his wife, unable to maintain herself; or
b)      his legitimate or negligence minor child, whether married or not,
unable to maintain itself; or
c)      his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is, by reason of any
physical or mental abnormality or injury unable to maintain itself; or
d)      his father or mother, unable to maintain himself or herself,
        Sub-Section (4) of Section 125 Cr.P.C.
                No wife shall be entitled to receive an (allowance for the
maintenance or the interim maintenance and expenses of proceeding,
as the case may be) from her husband under this Section if she is
living in adultery, or if, without any sufficient reason, she refuses to
live with her husband, or if they are living separately by mutual
consent.
(Underlined by me)
14      A fascicular reading of the above two provisions clearly
demonstrates that if the husband wilfully and intentionally neglects to
provide maintenance to his wife, then she can approach the Court
seeking maintenance. At the same time, wife is not entitled to claim
maintenance from her husband if she left the matrimonial home
without any cause much less justifiable cause.
15      To substantiate the case, the petitioner examined herself as
P.W.1.  Her father was examined as P.W.2.  To demolish the case of
the petitioner, the respondent examined himself as R.W.1 and got
marked Exs.R.1 to R.17. R.W.2 was examined to prove  
pronouncement of Talaq.   The petitioner knocked the doors of the
Court on 22.08.2006 seeking maintenance from the respondent as
she is unable to maintain herself.   The underlying object of Section
125 Cr.P.C. is to wipe off the tears of the destitute wife and the
children who were mercilessly thrown out of the matrimonial home,
for no fault of them.
16      As per the testimony of P.W.1, the respondent and his family
members subjected her to cruelty and hence she left the matrimonial
home on 12.08.2006.  As per the testimony of R.W.1, the petitioner
stayed with him for hardly ten days and left the house on the ground
that he did not heed her request to set up separate family.  The
respondent got issued legal notice on 06.05.2006 (Ex.R.4 is the office
copy of the legal notice) requesting the petitioner to join with him to
lead marital life.  Ex.R.6 is the acknowledgement.  Whatever deposed
by R.W.1 is reflecting in Ex.R.4 legal notice.   For one reason or the
other the petitioner did not choose to issue reply to Ex.R.4.  If rally
the respondent and his family members subjected the petitioner to
cruelty what prevented her to give a befitting reply narrating the
alleged torture being undergone by her at her in-laws home?  In the
cross examination P.W.1 in unequivocal terms deposed that she
executed an agreement  Ex.R.7 in the presence of elders with an
undertaking that she will not insist the respondent for setting up
separate family.  If really the petitioner did not pester the respondent
persistently to set up separate family, what made her to subscribe her
signature on Ex.R.7 agreement?  The Court shall not lose sight of the
human conduct while appreciating the rival contentions of the parties
to the proceedings, more particularly in family matters, wherein the
possibility of distortion of facts by the parties to the proceedings in
order to gain sympathy of the court cannot be ruled out completely.  If
really the petitioner has suffered in the hands of the respondent and
his family members, certainly she might have availed the opportunity
of issuing a befitting reply to the legal notice (Ex.R.4) issued by the
respondent or she might have exposed the alleged misdeeds of the
family of the respondent in the presence of the elders on 18.05.2006.
This Court is very much conscious that non-issuance of reply by the
petitioner itself is not a sufficient ground to draw adverse inference
against her without considering the other attending circumstances.
Within three months from the date of panchayat the petitioner lodged
complaint against the respondent and his family members for the
offence under section 498-A of IPC.  Though the petitioner is resident
of Gooti, for the reasons best known to her she lodged the complaint
on the file of Station House Officer, Mahila Police Station,
Ananthapur.
17      Establishment of the ingredients of Section 125 Cr.P.C. is sine
qua non for granting of maintenance.  In the instant case, the
petitioner failed to prove that she left the matrimonial home because
of the harassment meted out by the respondent and his family
members.
18      The material available on record clearly establishes that the
petitioner herself left the matrimonial home without any justifiable
reason which disentitled her to claim maintenance under Section 125
Cr.P.C.  I am fully endorsing the findings recorded by the courts
below on this aspect.
19      The learned counsel for the petitioner submitted that the
respondent has not followed the procedure as contemplated under the
Mahomedan Law either at the time of pronouncement talaq or with
regard to the proper communication of the talaqnama to the
petitioner, therefore, the talaq alleged to have been pronounced by the
respondent does not withstand judicial scrutiny. Therefore, the
petitioner is entitled to claim maintenance from the respondent under
Section 125 Cr.P.C.  In this case, it has to be seen whether the
pronouncement of talaq by the respondent and communication of the
talaqnama are not in accordance with the procedure contemplated
under Mahomedan Law; and if it is so, the petitioner is entitled to
claim maintenance from the respondent.
20      Chapter XVI of Mullas Mahomedan Law, Nineteenth Edition,
describes divorce.  Section 307 deals with different forms of divorce,
which reads as under:
                The contract of marriage under the Mahomedan Law will be
dissolved in any one of the following ways: (1) by the husband at his
will, without the intervention of a Court; (2) by mutual consent of the
husband and wife, without the intervention of a Court; (3) by a
judicial decree at the suit of the husband or wife.  The wife cannot
divorce herself from her husband without his consent, except under a
contract whether made before or after marriage, but she may, in some
cases. Obtain a divorce by judicial decree.
                When the divorce proceeds from the husband, it is called
talaq; when it is effected by mutual consent, it is called khula or
mubara at according to the terms of the contract between the parties.
21      Section 308 deals with divorce by talaq, which reads as under:
                Any Mahomedan of sound mind, who has attained puberty,
may divorce his wife whenever he desires without assigning any
cause.
22      As per Section 310, talaq may be oral or in writing. A
Talaqnama may only be the record of the fact of pronouncement of
talaq or it may be the deed by which the divorce is effected. The deed
may be executed in the presence of the Kazi or of the wifes father or
of other witnesses.  The deed is said to be in the customary form if it
is properly superscribed and addressed so as to show the name of the
writer and the person addressed.
23      In Zamrud Begum Vs. K.Md.Haneef  this Court held as follows:
        16. I am of the considered view that the alleged
talaq is not a valid talaq as it is not in accordance with
the principles laid down by the Supreme Court.  If
there is no valid talaq the relationship of the wife with
her husband still continues and she cannot be treated
as a divorced wife.  She can be treated as only a
deserted wife.
24      In Shamim Ara Vs. State of U.P  the Honble Honble apex
Court held as follows:
13.     There is yet another illuminating and weighty judicial opinion
available in two decisions of the Gauhati High Court recorded by
Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting
singly in Jiauddin Ahmed v. Anwara Begum {(1981) 1 Gau LR 358}
and later speaking for the Division Bench in Rukia Khatun v. Abdul
Khalique Laskar {(1981) 1 Gau LR 375}. In Jiauddin Ahmed case a
plea of previous divorce i.e. the husband having divorced the wife on
some day much previous to the date of filing of the written statement
in the Court was taken and upheld. The question posed before the
High Court was whether there has been valid talaq of the wife by the
husband under the Muslim law. The learned Judge observed that
though marriage under the Muslim law is only a civil contract yet the
rights and responsibilities consequent upon it are of such importance
to the welfare of humanity, that a high degree of sanctity is attached
to it. But in spite of the sacredness of the character of the marriage
tie, Islam recognizes the necessity, in exceptional circumstances, of
keeping the way open for its dissolution (para 6). Quoting in the
judgment several Holy Quranic verses and from commentaries
thereon by well-recognized scholars of great eminence, the learned
Judge expressed disapproval of the statement that the whimsical
and capricious divorce by the husband is good in law, though bad in
theology and observed that such a statement is based on the concept
that women were chattel belonging to men, which the Holy Quran
does not brook. The correct law of talaq as ordained by the Holy
Quran is that talaq must be for a reasonable cause and be preceded
by attempts at reconciliation between the husband and the wife by
two arbiters  one from the wifes family and the other from the
husbands; if the attempts fail, talaq may be effected (para 13). In
Rukia Khatun case, the Division Bench stated that the correct law of
talaq, as ordained by the Holy Quran, is: (i) that talaq must be for a
reasonable cause; and (ii) that it must be preceded by an attempt of
reconciliation between the husband and the wife by two arbiters, one
chosen by the wife from her family and the other by the husband
from his. If their attempts fail, talaq may be effected. The Division
Bench expressly recorded its dissent from the Calcutta and Bombay
views which, in their opinion, did not lay down the correct law.
25      Let me consider the facts of the case on hand on touchstone
with the provisions of Mahomedan Law and also in the light of the
principle enunciated by this Court and the Honble apex Court in the
cases cited supra.
26      As per the testimony of R.W.2, at the request of R.W.1 and his
family members they approached the petitioner and requested her
family members to come to the mosque at Gooti for settlement of the
dispute between the couple on 14.09.2006.  His testimony further
reveals that on 14.09.2006 neither the petitioner nor her parents
appeared before the Kazi in order to resolve the dispute.  As per the
testimony of R.W.1 on 14.09.2006 he pronounced talaq before the
Kazi in the presence of R.W.2, Abdul Rehman and Ibrahim.   Even as
per the testimony of R.W.2, R.W.1 pronounced talaq in the presence
of Kazi and himself.  In the cross-examination of R.Ws.1 and 2
nothing is elicited to shake their testimony so far as pronouncement
of talaq by R.W.1 on 14.09.2006 is concerned. The testimony of R.W.2
clearly reveals that Ex.R.8 Talaqnama bears his signature.
27      Before pronouncement of talaq, the respondent invited the
petitioner and her family members to come to the mosque on
14.09.2006 to resolve the dispute between them. For one reason or
the other, neither the petitioner nor her parents turn up to the said
panchayat. The respondent has taken a specific stand that he
requested the petitioner and her parents to attend the panchayat to
be held on 14.09.2006 in the mosque at Gooti.    It is not elicited in
the cross examination of R.W.1 that he did not invite the family
members of the petitioner to the mosque on 14.09.2006.  The material
placed before the trail Court clinchingly establishes that the
respondent made every attempt for reconciliation prior to the
pronouncement of talaq with a fond hope that the petitioner may join
him to lead happy marital life.  The attempt of the respondent for
reconciliation in the presence of elders and Kazi also went in vain.
28      Having regard to the facts and circumstances of the case and
also the principle enunciated in the cases cited supra, I am of the
considered view that the respondent has strictly adhered to the
procedure as contemplated under the Mahomedan Law in order to
give effect to the talaq.
29      Under Mahomedan Law, the talaq pronounced by the husband    
will come to effect from the date it was communicated to the wife. As
per the testimony of R.W.1 immediately after pronouncing talaq, he
communicated the same to the petitioner by registered post with
acknowledgement due.  Exs.R.2 and R.3 are the un-served envelopes.  
As per the endorsement made on Exs.R.2 and R.3, the petitioner was 
continuously absent for seven days.  On the same day i.e. 14.09.2006
the respondent also got issued a notice to the petitioner intimating
the pronouncement of talaq. Ex.R.9 is the office copy of the notice and
Ex.R.10 is the acknowledgement.  A perusal of the record reveals that
the respondent sent copy of the talaqnama Ex.R.11 to Ashraf of Asrar
mosque in order to comply with the religious requirement.
30      The respondent sent Exs.R.2 and R.3 to the address where the
petitioner has been ordinarily residing with her parents.  In the cross
examination P.W.1 in unequivocal terms deposed that she has been
residing in the address to which Exs.R.2 and R.3 were sent. The
crucial question for determination is whether the Courts below were
justified in drawing a presumption that notice was served on the
petitioner or not?
31      In C.C.Alavi Haji Vs. Palapetty Muhammed  the Honble
Honble apex Court held as follows:
    13. According to Section 114 of the Act, read with Illustration (f)
thereunder, when it appears to the court that the common course of
business renders it probable that a thing would happen, the court
may draw presumption that the thing would have happened, unless
there are circumstances in a particular case to show that the common
course of business was not followed. Thus, Section 114 enables the
court to presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural
events, human conduct and public and private business in their
relation to the facts of the particular case. Consequently, the court
can presume that the common course of business has been followed
in particular cases. When applied to communications sent by post,
Section 114 enables the court to presume that in the common course 
of natural events, the communication would have been delivered at
the address of the addressee. But the presumption that is raised
under Section 27 of the GC Act is a far stronger presumption.
Further, while Section 114 of the Evidence Act refers to a general
presumption, Section 27 refers to a specific presumption. For the sake
of ready reference, Section 27 of the GC Act is extracted below:
    27. Meaning of service by post.Where any Central Act or
Regulation made after the commencement of this Act 
authorises or requires any document to be served by post,
whether the expression serve or either of the expression give
or send or any other expression is used, then, unless a
different intention appears, the service shall be deemed to be
effected by properly addressing, pre-paying and posting by
registered post, a letter containing the document, and, unless
the contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course of
post.
    14. Section 27 gives rise to a presumption that service of notice
has been effected when it is sent to the correct address by registered
post. In view of the said presumption, when stating that a notice has
been sent by registered post to the address of the drawer, it is
unnecessary to further aver in the complaint that in spite of the
return of the notice unserved, it is deemed to have been served or that
the addressee is deemed to have knowledge of the notice. Unless and
until the contrary is proved by the addressee, service of notice is
deemed to have been effected at the time at which the letter would
have been delivered in the ordinary course of business. This Court
has already held that when a notice is sent by registered post and is
returned with a postal endorsement refused or not available in the
house or house locked or shop closed or addressee not in
station, due service has to be presumed. (Vide Jagdish Singh v.
Natthu Singh {(1992) 1 SCC 647} State of M.P. v. Hiralal {(1996) 7 SCC
523} and V. Raja Kumari v. P. Subbarama Naidu {(2004) 8 SCC 774}.
It is, therefore, manifest that in view of the presumption available
under Section 27 of the Act, it is not necessary to aver in the
complaint under Section 138 of the Act that service of notice was
evaded by the accused or that the accused had a role to play in the
return of the notice unserved.

32      In Subodh S.Salaskar Vs. Jayprakash M. Shah  the Honble
Honble apex Court held as follows:
    24. Presumption of service, under the statute, would arise
not only when it is sent by registered post in terms of Section
27 of the General Clauses Act but such a presumption may be
raised also under Section 114 of the Evidence Act. Even when
a notice is received back with an endorsement that the party
has refused to accept, still then a presumption can be raised as
regards the valid service of notice. Such a notice, as has been
held by a three-Judge Bench of this Court in C.C. Alavi Haji v.
Palapetty Muhammed {(2007) 6 SCC 555} should be construed  
liberally.
33      As per the principle enunciated in the cases cited supra, the
Court can draw a presumption that the notice was served on the
party to the proceedings if the same was sent by registered post with
acknowledgement due to the address where he or she ordinarily
resides unless and until the contrary is proved. It is not the case of
the petitioner that at the relevant point of time, she was not residing
in the address as mentioned on Ex.R.2 and R.3 envelopes.  Having
regard to the facts and circumstances of the case and also the
principle enunciated in the cases cited supra, I am of the considered
view that the notice was served on the petitioner.
34      A divorced Muslim woman is entitled for maintenance during
the iddat period in view of Section 3 (i) (a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. As seen from the
testimony of R.W.1 he obtained demand draft for Rs.5,215/- and
Rs.3,000/- towards Mahr and Thavi respectively and sent the same to
the petitioner along with Exs.R.2 and R.3.  Therefore, the respondent
has strictly adhered to the procedure contemplated under the
Mahomedan Law and nothing is brought on record to establish that
the respondent had deviated from the procedure at the time of
pronouncing talaq or communication of the same to the petitioner.
35      The Courts below have considered all these aspects
meticulously and arrived at a conclusion that the petitioner being a
divorced wife is not entitled to maintenance from the respondent.
36      As per the recitals of the petition, the petitioner has no means
to maintain herself.  In the counter, the respondent has taken a
specific stand that the petitioner has been working as Hindi Pandit in
Vivekananda School, Gooti.  To substantiate the stand of respondent,
he placed reliance on Ex.R.1 certificate issued by the Head Master of
the said school.  As per the recitals of Ex.R.1, the petitioner worked as
Hindi Pandit from June 2005 to October 2006.  The petitioner was
having sufficient means to maintain herself as on the date of filing of
the petition i.e. 22.08.2006.   A person who suppressed material facts
is not entitled to claim relief. In the instant case, the petitioner
suppressed material facts while filing the petition under Section 125
Cr.P.C. claiming maintenance from the respondent.
37      In Padal Venkata Rama Reddy @ Ramu v Kovvuri  
Satyanarayana Reddy , the Supreme Court held as follows:
       In a proceeding under Section 482 Cr.P.C., the High Court
will not enter into any findings of facts, particularly, when the
matter has been concluded by concurrent finding of facts of two
courts below.
38      Before parting with the order, this Court feels it apposite to
refer to the prevailing scenario in the society regardless of religion,
region and caste though it is somewhat painful.  In recent days, the
number of matrimonial cases is abundantly increasing day by day
due to obvious reasons.  Lack of patience, intolerance, unconcern,
greediness and financial independence among newly married couple
may be the root cause for the family bondage to become weak.  The
present case is one such classic example.  It is a matter of common
knowledge that the real cause for differences between the spouses
may be so many else other than which they are fighting in the Courts.
If the elders of both sides intervene at appropriate time and identify
the real cause for differences between the spouses, the Courts may
not be overburdened with matrimonial cases.  Instead of resolving the
trivial issues in the presence of relatives or village elders, young
couples are knocking the doors of the Courts carried away by
emotions, egos and anger without visualising the evil consequences of
irretrievably breaking down of matrimonial tie, for which act the
parents are also some times wittingly or unwittingly becoming
instrumentalities.  It is not exaggeration to say that by the time the
litigation comes to an end, the parties to the proceedings sufficiently
become old.  It is needless to say that if the spouses approach the
Court at a young age and fight in the Courts till they become old,
thereafter, even if they realise the importance of the family life, it is
not possible for them to put the clock back. Happy departure may be
the best way, if the chances of reconciliation between the spouses are
too remote and eventually separation of spouses is inevitable under
any circumstances.  It is the duty of the parents and elders to impart
the value of marital knot to the younger couple in order to enjoy the
married life in a fruitful manner.
39      For the foregoing discussion, this Court is of the considered
view that both the courts below have scrutinized the material
available on record in right perspective and the said findings are
based on sound reasoning and hence interference of this Court under
Section 482 of Cr.P.C is unwarranted.  This petition is devoid of merit
and accordingly the same is liable to be dismissed.  Accordingly, the
points are answered.
40      In the result the criminal petition is dismissed.  As a sequel,
miscellaneous petitions, pending in this petition, if any, shall stand
closed.
____________________  
T. SUNIL CHOWDARY, J    
Date: 28th March, 2016

Thursday, May 19, 2016

Right of lateral support to the property is not a right of easement but is an incidence of proprietary title and hence a natural right protected under section 7 of the Easements Act. No matter respondent has described that right as an easement by prescription but, what is meant is the right to get lateral support for plaint A schedule item No.1 which is situated at a higher level from the property of appellants. Claim made by the respondent is to enforce his natural right. - land owner is entitled to get lateral support for his land from the adjoining land and that when that right is infringed remedy of the person threatened with injury is to seek restoration of lateral support.-right for lateral support stands as natural justice and is essential to the protection and enjoyment of the property in the soil. That right of the respondent has to be protected.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 201 of 2010()


1. SALI MATHEW,
                      ...  Petitioner
2. K.M.MATHEW,

                        Vs



1. C.K.KURIAN,
                       ...       Respondent

                For Petitioner  :SRI.M.P.MADHAVANKUTTY

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :18/03/2010

 O R D E R
                          THOMAS P JOSEPH, J.

                    ----------------------------------------

                          R.S.A.No.201 of 2010

                     ---------------------------------------

                 Dated this 18th day of March, 2010

                                 JUDGMENT
The second appeal arises from judgment and decree of learned Additional District Judge, Kottayam in A.S.No.102 of 2005 confirming judgment and decree of learned Munsiff, Vaikom in O.S.No.434 of 2000. That was a suit filed by the respondent seeking lateral support for his property from the adjoining land belonging to the appellants but, calling it a right of easement by prescription. It is not disputed that plaint A schedule item No.1 belonged to the respondent as per settlement deed No.3005 of 1994 which is now a rubber plantation and that property on the north of item No.1 belonged to the appellants. It is also not disputed that plaint A schedule item No.1 is lying at a higher level from plaint A schedule item No.2 belonging to the appellants by about 5 feet. While so, appellants started excavation of earth from their property on the north. Respondent complained it to the local Revenue Divisional Officer and Ext.B1, agreement was entered into between the parties as per which appellants were to provide lateral support for plaint A schedule item No.1 in the manner stated therein. It is the case of respondent that even after Ext.B1, appellants in violation of terms and conditions of the agreement excavated earth from plaint schedule item No.2 which resulted in further loss of lateral R.S.A.No.201 of 2010G support for their property and which resulted in a portion of the compound wall sliding down resulting in loss of about 5,000/- to the respondent. Hence the suit for declaration and mandatory injunction to direct appellants to restore lateral support by putting up granite retaining wall. Appellants resisted denying the allegations in the plaint and contending that parties are bound by Ext.B1, agreement. If at all there is any violation of that agreement remedy of respondent is to enforce that agreement and not to sue for declaration and mandatory injunction. They denied that there was any violation of terms and conditions of Ext.B1, agreement. Trial court held that act of the appellants resulted in loss of lateral support for plaint A schedule item No.1 and hence appellants are able to restore it. Accordingly declaration and mandatory injunction were granted. First appellate court refused to interfere with that finding, judgment and decree. Hence the second appeal at the instance of defendants raising by way of substantial questions of law whether in the light of Ext.B1, agreement respondent could claim right of easement as set up in the plaint and whether trial court was justified in directing construction of retaining wall. Learned counsel for appellants would contend that Ext.B1 being an agreement entered into between the parties, rights and liabilities should flow from that agreement and if at all there is a violation, remedy of respondent is to enforce the same. Learned counsel has taken me through Exts.C1 to C2(a) and the evidence of R.S.A.No.201 of 2010G PW2, Engineer who inspected the properties and assisted the commissioner in preparing Exts.C1 and C1(a).
2. Right of lateral support to the property is not a right of easement but is an incidence of proprietary title and hence a natural right protected under section 7 of the Easements Act. No matter respondent has described that right as an easement by prescription but, what is meant is the right to get lateral support for plaint A schedule item No.1 which is situated at a higher level from the property of appellants. Claim made by the respondent is to enforce his natural right. The Division Bench of this court in C.P.Mammen Vs. Kunchathy Kesavan (1956 KLT SN 46) has held that to seek restoration of lateral support it is not necessary that owner of the land must have actually suffered damages. Even in the case of apprehended damages suit of restoration of lateral support would lie. In K.J.Joseph Vs. Nandagopalan & Ors. (1983 KLT 95) it has been held that land owner is entitled to get lateral support for his land from the adjoining land and that when that right is infringed remedy of the person threatened with injury is to seek restoration of lateral support. The same view has been taken by this court in Ramakrishnan Vs. Devassy (1988(2) KLT 365). As such right of respondent to get restoration of lateral support for A schedule item No.1 if it is lost cannot be ruled out.
3. So far as the contention of appellants based on Ext.B1 is R.S.A.No.201 of 2010G concerned, that agreement is dated 23-02-2000 and entered into between the parties following the complaint preferred by the respondent before the Revenue Divisional Officer alleging excavation of earth from plaint A schedule item No.2 and seeking restoration of lateral support. The Village Officer has reported in Ext.B2 that earth has been removed from plaint A schedule item No.2 at a length of 75 meters, depth of 7 meters and up to a distance of about 1 meter from the boundary of plaint A schedule item No.1. As per Ext.B1, agreement appellants were to leave a slope of 10cms for every 1 meter while removing earth from their property. In Ext.C1, report of the Advocate Commissioner taken immediately after institution of the suit, Commissioner has reported that boundary wall of the respondent is quite old. According to the respondent even after Ext.B1, excavation in an unbridled manner continued resulting in a portion of the compound wall of plaint A schedule item No.1 collapsing. Exts.C2 and C2(a) are the report and plan obtained subsequently. PW2, Engineer inspected the properties and assisted the advocate Commissioner. Ext.C2 would show that a portion of the compound wall has slide down (a development after Ext.C1 report). It is also reported in Ext.C2 that up to a depth of about 9-10 meters from plaint schedule item No.1, further excavation has been effected. That means, there was excavation at further depth even after Ext.B1, agreement and Ext.C1, report. Learned counsel has an argument that Ext.B1 does not prohibit R.S.A.No.201 of 2010G the appellants from further excavation at further depth. But reading Ext.B1, I am unable to accept that contention. There is nothing in Ext.B1 which enabled the appellants to excavate at further depth than done up to a depth of 7 meters already done. There is merit in the contention of respondent that there was violation of Ext.B1, agreement.
4. It is also revealed from the report of PW2, Engineer that the precautions already taken by the appellants was not sufficient to provide lateral support for plaint A schedule item No.1. PW2 has given nature of soil which is found to be too loose. It is in the above circumstances that PW2, Engineer has opined that construction of retaining wall is required to provide lateral support for plaint A schedule item No.1.
5. It is not a question of enforcement of Ext.B1 or, respondent claiming damages for violation of the terms and condition of Ext.B1. I stated that the safeguard appellants were to take as per Ext.B1 is found to be insufficient by PW2, the Engineer. Humphries Vs. Brogden (1850) 12 QB 739) states that right for lateral support stands as natural justice and is essential to the protection and enjoyment of the property in the soil. That right of the respondent has to be protected.
6. In the courts below appellants had a case that construction of compound wall by the respondent has created additional burden on R.S.A.No.201 of 2010G plaint schedule item No.1 and hence he is not entitled to get lateral support from item No.2. So far as that contention is concerned, Ext.C1 shows that the compound wall is pretty old. Even if it is assumed that item No.2 has been further burdened by construction of compound wall, if the act of the appellants would result in sinking of item No.1 even in the absence of the compound wall, respondent would be entitled to get lateral support as a natural right. On the facts and circumstances of the case and considering the position of law as stated above, I am satisfied that decree of the trial court as confirmed by the first appellate court is legal and proper and no substantial question of law is involved.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE Sbna/

Monday, May 16, 2016

DNA test = the husbands plea that he had no access to the wife when the child was begotten stands proved by the DNA test report as, in the facts and circumstances of the case, it is possible to opine that the proof based on DNA test would be sufficient to dislodge the presumption under Section 112 of the Evidence Act. -The trial Court shall accordingly direct the petitioner, the respondent and the child of the respondent by name Shiva Kumar to undergo DNA test by referring them to Centre for Cellular and Molecular Biology, Habsiguda, Hyderabad. However, it is made clear that in case the respondent/wife accepts the directions that the trial court may issue in pursuance of the orders of this court, the DNA report will determine the conclusiveness of the veracity of the accusation levelled by the petitioner against her; but, in case she declines to comply with the directions, the allegations of the husband would be determined by the court below by drawing a presumption of the nature contemplated under section 114 of the Evidence Act especially in terms of illustration (h) thereof.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI          

Civil Revision Petition no.5290 of 2011

11-02-2016 

Govindula Sathaiah. Petitioner

Govindula Manjula .Respondent   

Counsel for the Petitioner:Sri P.V. Narayana Rao

Counsel for Respondent: Sri P. Laxma Reddy  

<Gist :

>Head Note: 

? Cases referred:

1.AIR 1993 SC 2295  
2.AIR 2015 SC 418  
3.2015(4) ALT 157 

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI           


Civil Revision Petition No.5290 of 2011

ORDER:  

        The unsuccessful petitioner/husband filed this civil revision petition
under
Article 227 of the Constitution of India assailing the orders dated 21.09.2011
of
the learned Senior Civil Judge at Jagtial passed in IA.No.378 of 2011 in
OP.No.18  
of 2008 filed under Section 45 of the Indian Evidence Act requesting to refer
the
petitioner, the respondent/his wife and her son Shiva Kumar for DNA test at
Centre for Cellular and Molecular Biology, Habsiguda, Hyderabad for
determination of parentage of the said male child Shiva Kumar by the Centre.
2.      I have heard the submissions of the learned counsel for the petitioner and
the learned counsel for the respondent.  I have perused the material record.
3.      The facts, which are necessary for consideration, in brief, are as
follows:
        The petitioner and the respondent are man and wife.  The petitioner filed
the original petition before the trial Court for grant of divorce by dissolution
of
the marriage between the parties and in that original petition, he had taken a
plea that he is not responsible for the birth of the male child-Shiva Kumar by
the
respondent and that he had no access to the respondent, who is the mother of
the said male child-Shiva Kumar and that the respondent had conceived the male
child on account of the illicit intimacy with one Mutyala Sathaiah and that,
therefore, it is, in the interests of justice, to refer the parties and the male
child
of the respondent to the said Centre to undergo DNA test.  The said application
was resisted by the respondent/wife by denying the allegations and inter alia
contending that no criminal case is filed on the grounds of adultery against the
respondent and the alleged person, who is said to be the father of the male
child; and, that the petition is filed to harass and defame the respondent and
to
create some ground to avoid payment of maintenance to the respondent; and, 
that the respondent cannot be compelled to undergo DNA examination; and, that 
the son is aged 3 years and that after lapse of three years, for the first time,
the
false allegations are made.  The trial Court, having considered the pleadings
and 
submissions made before it and following the ratio in the decision of the
Supreme Court in Goutham Kundu v. State of West Bengal  had dismissed   
the application of the petitioner/husband.
4.      Feeling aggrieved, the present revision petition is filed and it is inter
alia
contended that the child Shiva Kumar to whom the respondent gave birth is not
the Son of the petitioner and that the respondent conceived the said child on
account of her illicit intimacy with one Mutyala Sathaiah and that to
substantiate
the allegation of infidelity urged in the divorce OP, the petitioner had made an
application before the Court below for directing the parties and the said child-
Shiva Kumar to undergo DNA test and that such a direction to the parties is
necessary to establish whether or not the petitioner had fathered the male child
born to the respondent/wife and that the Court below, in the facts and
circumstances of the case, ought to have ordered the petition as the petitioner
has gone to the extent of even naming the person who was the father of the
child born to the respondent/wife.  So contending, the learned counsel for the
petitioner had placed reliance on the decisions in Dipanwita Roy v. Ronobroto
Roy  and Manjudari Neerada @ Radhi v. M.P. Narasimha Rao .  He would   
submit that the Supreme Court in the latest decision had also considered not
only the decision which was followed by the trial Court but also the other
decisions holding the field and that the Supreme Court had finally held that the
husbands plea that he had no access to the wife when the child was begotten
stands proved by the DNA test report and that in the face of such a report, the
Court cannot compel the husband to bare the fatherhood of a child, when the
scientific report proves the contrary and that, therefore, in view of the latest
decision, the order of the trial Court brooks interference.   He had also
pointed
out from the decision cited, the following observations: We are conscious that
an innocent child may not be bastardised as the marriage between her
mother and father was subsisting at the time of her birth, but in view
of the DNA test reports and what we have observed above, we cannot
forestall the consequence.  It is denying the truth. Truth must
triumph is the hallmark of justice.
5.      On the other hand, the learned counsel for the respondent/wife would
submit that in the cited decision, which was followed by the trial Court, it was
laid that Courts in India cannot order DNA test as a matter of course and that
there must be a strong prima facie case and that the husband must establish non
access in order to dispel the presumption arising under Section 112 of the
Evidence Act and that it is for the court to carefully examine what would be the
consequence of ordering the blood test and that in the affidavit filed in
support
of the petition, the husband has baldly alleged non access but did not plead the
details as to during which period he did not have access to his wife and that in
the facts and circumstances of the case, the order impugned is sustainable and
needs no interference.
6.      I have bestowed my attention to the facts and the submissions.  I have
gone through the precedents cited.
7.      Reverting to the facts of the case, it is to be noted that the
petitioner/husband made categorical assertions regarding the infidelity of his
wife
in the petition filed by him for divorce and also in the affidavit filed in
support of
the instant petition.  He has gone to the extent of naming the person, who was
the father of the male child-Shiva Kumar born to the respondent/wife.  On the
ground that the wife gave birth to a child, who was not fathered by the
petitioner, the divorce was sought.  The law is now well settled that depending
upon the facts and circumstances of the case, it would be permissible for a
Court
to direct for holding of a DNA test to determine the veracity of the allegations
which constitute one of the grounds on which the petitioner would either
succeed or lose.  In the decision in Dipanwita Roy (2nd cited), the Supreme
Court having noted the provision of Section 112 of the Indian evidence Act held
as follows:
We may remember that Section 112 of the Evidence Act was enacted   
at a time when the modern scientific advancement and DNA test 
were not even in contemplation of the legislature. The result of DNA
test is said to be scientifically accurate. Although Section 112 raises
a presumption of conclusive proof on satisfaction of the conditions
enumerated therein but the same is rebuttable. The presumption
may afford legitimate means of arriving at an affirmative legal
conclusion. While the truth or fact is known, in our opinion, there is
no need or room for any presumption. Where there is evidence to the
contrary, the presumption is rebuttable and must yield to proof. The
interest of justice is best served by ascertaining the truth and the
court should be furnished with the best available science and may
not be left to bank upon presumptions, unless science has no answer
to the facts in issue. In our opinion, when there is a conflict between
a conclusive proof envisaged under law and a proof based on
scientific advancement accepted by the world community to be 
correct, the latter must prevail over the former.
Here in the present case, the husband has categorically pleaded that he has no
access to the wife and that he had not fathered the child.  Therefore, there is
a
likelihood that the husbands plea that he had no access to the wife when the
child was begotten stands proved by the DNA test report as, in the facts and
circumstances of the case, it is possible to opine that the proof based on DNA
test would be sufficient to dislodge the presumption under Section 112 of the
Evidence Act.  This Court is in agreement with the argument of the learned
counsel for the petitioner that but for the DNA test it would be impossible for
the
petitioner/husband to establish and confirm the assertions made in the
pleadings.  Therefore, this court is satisfied that a direction can be issued as
prayed for in the petition of the husband.  Having regard to the above analysis
and the precedential guidance in the decision in Dipanwita Roy (2nd cited),
which is binding on the parties as the facts of the case before the Supreme
Court
bear close similarity to the facts of the case which this Court is dealing
presently,
this Court finds that the order impugned brooks interference.
8.      In the result, the Civil Revision Petition is allowed and the order
impugned 
is set aside.  The trial Court shall accordingly direct the petitioner, the
respondent and the child of the respondent by name Shiva Kumar to undergo 
DNA test by referring them to Centre for Cellular and Molecular Biology,
Habsiguda, Hyderabad.  However, it is made clear that in case the
respondent/wife accepts the directions that the trial court may issue in
pursuance of the orders of this court, the DNA report will determine the
conclusiveness of the veracity of the accusation levelled by the petitioner
against
her; but, in case she declines to comply with the directions, the allegations of
the
husband would be determined by the court below by drawing a presumption of 
the nature contemplated under section 114 of the Evidence Act especially in
terms of illustration (h) thereof.
      There shall be no order as to costs.
      Miscellaneous petitions pending, if any, in this civil revision petition
shall
stand closed.
_____________________    
M. SEETHARAMA MURTI, J      
11th February 2016

Wednesday, May 11, 2016

the version that when the second respondent asked the petitioner to repay the misappropriated amount, an altercation took place between both of them and in the course of the said altercation, the petitioner abused the second respondent in his caste name seems to be inherently improbable and ex facie false. It would clearly appear that the said allegation was invented by the second respondent for the purpose of fixing the petitioner in a false charge under the Act.

HON'BLE SRI JUSTICE R.KANTHA RAO      

CRIMINAL PETITION NO.12725 OF 2010    

24-03-2014

Punugoti Naga Kiran Kumar..Petitioner/Accused  

State of Andhra Pradesh, Rep.by its Public Prosecutor, High Court of A.P.,
Hyderabad and another..Respondents.  

Counsel for the Petitioner: Sri Nimmagadda Satyanarayana

Counsel for Respondents: Addl. Public Prosecutor, High
                          Court of A.P., Hyderabad

<Gist :

>Head Note:

?Cases referred:

THE HONBLE SRI JUSTICE R.KANTHA RAO        

CRIMINAL PETITION NO.12725_2010    


ORDER:

        Heard the learned counsel appearing for the
petitioner and the learned Additional Public Prosecutor
representing the State.  Though served with notice, the
second respondent did not appear in person or through
counsel.

2.      This Criminal petition is filed to quash the charge
sheet in S.C.No.29 of 2010 on the file of the Special
Judge for trial of Cases under S.C. and S.T (POA) Act,
Prakasam District at Ongole, filed against the petitioner
alleging commission of offences punishable under Section
506 of I.P.C., and Section 3(1)(x) of the Schedule Castes
and Schedule Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as the Act).
3.      The brief facts of the case, which is sought to be
quashed may be stated as follows:-  The petitioner is the
Panchayat Secretary of Vallur village, Tangutur Mandal
of Prakasam District.  Earlier, he worked as Panchayat
Secretary of Boddulurivaripalem village of Ongole rural
Mandal.  The second respondent-de facto complaint was
the Sarpanch of Boddulurivaripalem village Gram
Panchayat and he belongs to Madiga community, which  
is a schedule caste.  The petitioner belongs to Brahmin
community, which is a forward caste.
        According to the second respondent-de facto
complainant, taking advantage of his innocence and
illiteracy, the petitioner who was discharging duties as
Panchayat Secretary from 1-6-2006 to August, 2007 of
Gram Panchayat, Boddulurivaripalem village, made him
to put his signatures on some cheques and other papers,
withdrew the funds of Gram Panchayat and utilized them
for his own purposes.  The second respondent reported
the matter to the higher authorities and the District
Panchayat Officer, Ongole caused an enquiry conducted
in this regard and obtained a report.  In the meanwhile,
the petitioner was transferred to Vallur village.
        While so, on 24-3-2008 around 6.00 PM., the
second respondent went to MPDOs Office, Ongole and
noticed the petitioner in front of MPDOs Office and
requested him to reimburse the misappropriated public
fund of Rs.35,500/- (Rupees thirty five thousand, five
hundred only) pertaining to Gram Panchayat
Boddulurivaripalem village.  On that a wordy quarrel
took place between the petitioner and second respondent,
during which the petitioner allegedly abused the second
respondent in filthy language, touching his caste, stating
that he would not pay the amount and the second
respondent could do whatever he wanted.  Lws.2 to 8
witnessed the incident, pacified the issue and sent both
of them away.
        Two days later i.e., on 26-3-2008 at 9.00 PM., the
second respondent lodged a type written report with the
Assistant Sub Inspector of Police, II Town Police Station,
Ongole. Basing on the said report, a case in Crime No.72
of 2008 for the offences punishable under Section 506 of
I.P.C., and Section 3(1)(x) of the Act was registered.  The
Sub Divisional Police Officer, Ongole conducted
investigation and filed charge sheet against the
petitioner, which is now pending as S.C.No.29 of 2010 on
the file of the Special Judge for trial of cases under SC
and ST (POA) Act, Prakasam District at Ongole.

4.      It is submitted by the learned counsel appearing for
the petitioner that in fact, the second respondent
misappropriated the funds of Gram Panchayat, on the
representations made by some of the villagers of Gram
Panchayat, the District Panchayat Officer caused an
enquiry to be conducted into the allegations of
misappropriation and the Officer conducted an enquiry
and submitted a report to the District Panchayat Officer.
Before the Enquiry Officer, the petitioner submitted a
detailed statement to the District Panchayat Officer
stating that the entire records pertaining to the Gram
Panchayat were handed over to the Sarpanch on
8-11-2006 and the Sarpanch kept them in his custody
and also passed a receipt to him and the said fact was
also brought to the notice of other members of Gram
Panchayat and Upa-Sarpanch and obtained their
signatures.  In the said statement, which was submitted
much prior to the First Information Report in the present
case, the petitioner categorically stated that the second
respondent threatened him to implicate in a false case
under the Act as the second respondent belongs to
schedule caste.
        It is further submitted by the learned counsel that
after receiving enquiry report, the District Panchayat
Officer cancelled the cheque power of the second
respondent.  Challenging the same, the second
respondent filed W.P.No.7970 of 2008 before this Court
and the said writ petition was dismissed, holding that an
alternative remedy was available to him under the
provisions of Andhra Pradesh Panchayat Raj Act, 1994
by way of an appeal.

5.      On the other hand, the learned Additional Public
prosecutor submitted that since the allegations leveled in
the First Information Report prima facie make out an
offence punishable under Section 506 of I.P.C., and
Section 3(1)(x) of the Act, the contentions urged by the
petitioner can only be decided during the course of trial
after the evidence is let in by both parties and this is not
a fit case to quash the proceedings at the threshold.

6.      For the purpose of pronouncement upon the issue
as to whether the charge sheet can be quashed by
invoking the powers under Section 482 of Cr.P.C., certain
crucial aspects in this case have to be examined.

7.      Basing on the enquiry report received, the District
Panchayat Officer suspended the petitioner, who was the
panchayat secretary on the ground that he failed to
conduct meetings of the Gram Panchayat properly.  But,
at no point of time, the panchayat secretary was held
guilty of misappropriation and no amounts were ordered
to be recovered from him.  In fact, the Collector,
Panchayat Wing issued a notice dated 25-5-2008 to the
second respondent stating that he misused his powers
and misappropriated Rs.35,500/- (Rupees thirty five
thousand, five hundred only) and failed to give an
explanation to the show-cause notice issued and
therefore, he has to repay the aforesaid amount within
seven days from the date of receipt of the notice.
        In the explanation to the show-cause notice issued
to him, the petitioner gave a statement to the Divisional
Panchayat Officer on 16-11-2007, stating that the
Sarpanch threatened him to incorporate false resolutions
in the minutes book by abusing him in filthy language
and also threatened him stating that he belongs to
schedule caste and he would foist false cases against him
under the provisions of the Act and he would be sent to
jail.  This statement was given much prior to the report
lodged by the second respondent with the police.

8.      Further, the villagers of Boddulurivaripalem
submitted a report to the Collector, Prakasam District
stating that the Sarpanch, without paying heed to the
words of the petitioner who was the panchayat secretary,
withdrew the panchayat funds and misused the said
amount, when the petitioner asked the second
respondent Sarpanch to submit the receipts, the second
respondent told him that he need not show any receipts
for the amounts drawn by him and if the petitioner
complains against him to the higher authorities, he
would foist false case against him under the Act.  The
said representation was sent to the Collector by 51
villagers on 8-10-2007.  The aforesaid representation was
also much prior to the lodging of the report by the second
respondent.  Subsequently, the suspension order passed
against the petitioner was revoked and he was reinstated.

9.      More over, the MPDO, Mandal Prishad Tanguturu
addressed a letter to the Sub Divisional Police Officer,
Ongole, stating that on 24-3-2008 the petitioner who was
a panchayat secretary was on duty at Mandal Parishad
Office, Tangutur from 11.00 AM., to 3.00 PM., and
subsequent thereto, he worked in Computerisation
Progoramme of Indiramma Pensions Scheme along with  
one R.Sanjeeva Rao-Panchayat Secretary till 7.00 P.M.,
on his instructions.

10.     This Court is conscious of the fact and it should not
assume the role of trial Court and evaluate evidence.  At
the same time, while exercising the jurisdiction under
Section 482 of Cr.P.C., this Court cannot adopt a casual
or mechanical approach to the facts before it.  It is under
a duty to scrutinize the facts in the light of the
circumstances of the case.  Merely because the First
Information Report contains some allegations attracting
the offence punishable under Section 3(1)(x) of the Act
and the fact that a charge sheet was lodged after
investigation, it cannot refrain from examining the
absurdity or falsity of allegations mentioned in the
FIR/charge sheet.  If the allegations mentioned in the
FIR/charge sheet are inherently improbable or
apparenttly absurd, this Court can proceed to quash the
FIR/charge sheet in exercise of powers under Section 482
of  Cr.P.C notwithstanding the fact that the allegations
mentioned in the FIR/charge sheet technically attract the
offence punishable under the Act or any other offence
under the Penal Code.

11.     In the instant case, the most crucial aspect which
requires consideration is that long prior to the lodging of
report, the second respondent-de fact complainant
threatened the petitioner to implicate him in false cases
under the provisions of the Act.  This fact was brought to
the notice of the Collector, Panchayat Wing by the
petitioner in his statement submitted to him and also by
the villagers in their representation to the Collector.
Thus, it is submitted on behalf of the petitioner that
earlier to the lodging of the report, the second respondent
threatened the petitioner to implicate him in false
charges under the provisions of the Act which finds place
in the above two documents.  Therefore, there is
documentary proof in regard to the statement made by
the petitioner and obviously threats were hurled by the
second respondent to implicate the petitioner in false
charges under the provisions of the Act much prior to the
lodging of report by him in the present case.

12.     The  version of the second respondent is that when
he  asked the petitioner who was present in front of the
MPDOs Office to repay the misappropriated amount, the
incident took place.  In fact, the Collector directed the
second report to repay the misappropriated amount.  The
petitioner was never directed to repay any such amount.
The petitioner was suspended only on the charge of not
properly conducting the meetings of Gram Panchayat and
subsequently he was reinstated.  When no notice was
served on the petitioner to repay the misappropriated
amount, he cannot be expected to repay the same.
Therefore, the version that when the second respondent
asked the petitioner to repay the misappropriated
amount, an altercation took place between both of them
and in the course of the said altercation, the petitioner
abused the second respondent in his caste name seems  
to be inherently improbable and ex facie false.  It would
clearly appear that the said allegation was invented by
the second respondent for the purpose of fixing the
petitioner in a false charge under the Act.

13.     The main object of exercise of powers under Section
482 of Cr.P.C., is to prevent abuse of process of law and
miscarriage of justice.  For such purpose, this Court can
certainly subject the allegations leveled in the FIR/charge
sheet to scrutiny to find as to whether there is falsity or
absurdity which is inherent in the very allegations.  In
the instant case, the allegations made in the First
Information Report and also in the charge sheet are
prima facie absurd and false and if on the basis of the
said allegations, the petitioner who is a panchayat
secretary is forced to undergo the ordeal of Sessions trial,
it is nothing but abuse of process of law.  This Court
therefore is of the considered view that this is a fit case,
wherein the charge sheet can be quashed in exercise of
powers under Section 482 of Cr.P.C.

14.     For the foregoing reasons, the entire proceedings in
Sessions Case No.29 of 2010 on the file of the Special
Judge for trial of Cases under S.C. and ST (Prevention of
Atrocities) Act, Prakasam District at Ongole are quashed.
        Accordingly, the Criminal Petition is allowed.  The
Miscellaneous Petitions pending if any shall stand closed.
___________________  
R.KANTHA RAO,J  
Date: 24-3-2014