IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 1200 of 2007() ------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.266/2007 Dated 26/06/2007 CC.772/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT(S): COMPLAINANT ------------------------- K.PRADEEPAN, S/O.KUMARAN, AGED 45 YEARS, KOKKADAN HOUSE, VILAYANCODE, P.O.PILATHARA, KANNUR. BY ADV. MR.M.V.AMARESAN RESPONDENT(S): ACCUSED ---------------------- 1. K.C.JOSE, S/O.CHIYAN, O.VS QUARTERS, NEAR TRICHAMBARAM SREE KRISHNA TEMPLE, TRICHAMBARAM, TALIPARAMBA, KANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.MR.M.P.MADHAVANKUTTY FOR R1 MR.K.K.SUNIL KUMAR (IDUKKI) FOR R1 BY GOVT. PLEADER SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1200 OF 2007 = = = = = = = = = = = = = = = Dated this the 7th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-Payyannur in C.C.772/02. It is the case of the complainant therein hat there was an agreement to sell the vehicle and as the accused failed to comply with the conditions of sale the vehicle was repossessed by the complainant and ultimately in the presence of Dy.S.P. it was agreed to return back the vehicle to the accused on payment of Rs.75,000/- to the complainant. It is alleged that on 27.11.01 the accused paid a sum of Rs.20,000/- and handed over the vehicle bearing Reg.No.KL.10-2424, towards the discharge of balance of Rs.55,000/- accused issued a cheque bearing date 5.4.2002 which when presented for encashment returned with the endorsement of insufficiency of funds and hence the prosecution. The defence of the accused is that there was no Crl.A. 1200 OF 2007 -2- such transaction and it was all done under duress and therefore the action is liable to fail. The Court below on appreciation of the materials disbelieved the case of the complainant and rejected his case by acquitting the accused. It is against that decision the complainant has come up in appeal. 2. The point that arises for determination is whether there are any grounds to interfere with the decision rendered by the Court below. Point: 3. As stated by me earlier the case of the complainant is that the accused had issued a cheque towards the discharge of a liability which was due under a vehicle transaction which when presented for encashment was not encashed, hence the action. The defence is of a total denial of the transaction and that the cheque was obtained under duress. 4. The most interesting aspect in this case is that the complainant has given a total topsy turvey to the case Crl.A. 1200 OF 2007 -3- advanced by him in C.C.164/99. Now the complainant wants to project before Court that there was a vehicular transaction between him and the accused and as the accused did not pay the amount the vehicle was repossessed and as per the mediation of the police it was decided to give back the vehicle to the accused on condition that he pays Rs.75,000/-. It is his case that the accused had given Rs.20,000/- and towards the balance consideration of Rs.55,000/- had issued the disputed cheque which has given rise to this case. The learned Magistrate had relied upon the documents, exhibits D1 to D3 to assess the acceptability of the case of the complainant. It has to be remembered that when the complainant herein was cross-examined in C.C.164/99 and a question was put with respect to a transaction with reference to the vehicle bearing Reg.No.KL.10-2424, he pretended a total ignorance and when he was confronted with the notice he had stated that he does not remember. In that case the present accused had set up a defence that there was a vehicular transaction with one Balan and as the registration certificate was not handed over to the Crl.A. 1200 OF 2007 -4- accused he did not pay the amount but when he got down at Taliparamba on 6.10.98 the complainant Balan and others coercively took signed cheques and papers and initiated action. Now the very same complainant who had pretended ignorance about the sale of the vehicle KL10-2424 projects Ext.P8 as an agreement entered into between him and the accused with respect to the sale of the vehicle. A very perusal of that agreement would reveal that all is not well with the case of the complainant. The complainant in this case should have at least examined the Dy.S.P. who according to the complainant was instrumental for the settlement so that the court should have known what had transpired. But it has to be remembered here is the complainant who goes on changing his case and when there is a previous litigation with respect to the dishonour of the cheque was pending according to him he enters into a compromise and gets a post-dated cheque for the amount due to him. It is quiet unbelievable especially in the backdrop that the accused had contended that everything is obtained under duress with the help of the police. Therefore Crl.A. 1200 OF 2007 -5- unless there are concrete materials to establish it is very difficult to accept the case of the complainant. The complainant in total had deviated in the two cases in the most inconsistent manner which makes a court of law disbelieve him in both the cases for the reason that nobody could find out the truth from a case which is so inconsistent. So as done by the Court below I have also to disbelieve PW1 and the case set up by him and dismiss the appeal. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-