IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 740 of 2002() ----------------------- CC.136/2002 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT(S): COMPLAINANT: --------------------------------------------------- A.J.JOHN, ANDUPARAMBIL, RUBBER BOARD P.O., KOTTAYAM-9. BY ADVS. MR.P.RAVINDRA BABU, MR.SURIN GEORGE IPE. RESPONDENT(S): ACCUSED/STATE OF KERALA: -------------------------------------------------------------------------- 1. K.N.SASIKUMAR, KOLLAPPALLY HOUSE, NATTASSERY P.O., S.H.MOUNT, KOTTAYAM 686 006. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. MR.P.V.GEORGE(ONAKKOOR), MR.REJI GEORGE. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 740 OF 2002 = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.136/02 before the Chief Judicial Magistrate Court, Kottayam. The brief facts are as follows. It is the case of the complainant that the accused had entered into a sale agreement with the complainant in respect of 20 cents of land and towards the same he had advanced a sum of Rs.1,00,000/- on 20.1.98 and thereafter another Rs.59,500/-. When the accused failed to execute the sale deed, in discharge of the liability including damages, a cheque for Rs.1,69,750/- was drawn and when it was presented, it returned with the endorsement of insufficiency of funds. Thereafter the prosecution has been launched. 2. On the other hand, the accused would contend that the said cheque is not supported by consideration and it was only received to coerce the accused to comply with the terms Crl. Appeal NO. 740 OF 2002 -:2:- of the agreement. The Court below on appreciation of the materials found that the cheque is not issued towards the discharge of liability as alleged by him. I think the conduct of the complainant itself is sufficient to show that what he says is not correct. It is the definite case of the complainant that there was an agreement to sell 20 cents of land by the accused to the complainant and towards the consideration an amount of Rs.1,59,500/- had been paid and when the accused failed to execute the sale agreement the matter was negotiated and it was decided to pay a sum of Rs.1,69,750/- to the complainant and towards the discharge of the same had issued Ext.P1 cheque which is the subject matter of this prosecution. But I am surprised to see the very same complainant had initiated a civil action for specific performance of a contract on the basis of the same transaction with an alternative prayer for realisation of the amount. If the facts spoken to by the complainant is true and correct certainly he would not have filed a civil litigation for enforcing the agreement for specific performance. Ext.D1 which is the copy of the plaint would show that the complainant has averred that he is always ready and willing to perform his part of the Crl. Appeal NO. 740 OF 2002 -:3:- contract. So when Ext.D1 plaint is read the very approach of the complainant to the effect that the terms of the agreement has been put an end to and an amount has been arrived at for the purpose of discharging his liability does not appear to be true and correct. To crown all these things he would say that if the sale document is executed everything will be over. This shows that the complainant's case that the agreement has been put an end to and a cheque has been issued for the discharge of the liability does not appear to be true and correct. Therefore I do not find any ground to interfere with the decision rendered by the learned Chief Judicial Magistrate Court and the order of acquittal does not call for any interference but I make it clear that this decision will not have any effect on the civil litigation. Therefore this appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 740 OF 2002 -:4:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 740 OF 2002 = = = = = = = = = = = J U D G M E N T 26th May, 2009