Muthukumar vs N.Kathirvel & Anr.

This is an appeal against the Order of acquittal passed by the learned Judicial Magistrate-VII, Coimbatore in C.C.No.45 of 2006.

Heard both sides and perused the records.

The appellant/complainant filed a complaint u/s 200 of the Code of Criminal Procedure in C.C.No.45 of 2006 before the learned Judicial

Magistrate-VII, Coimbatore against the respondent/accused 1. N.Kathirvel and 2. K.Nagaraj for the alleged offences punishable u/s 323, 352,

420 and 506(ii) of the IPC. The learned Judicial Magistrate-VII, Coimbatore took cognizance of the aforesaid offences and on appearance of the

accused furnished copies of records. P.W.1 to P.W.5 were examined on the side of the appellant/complainant and Ex.P.1 to Ex.P.17 were

marked.

The brief case of the facts of the appellant/complainant :

The appellant/complainant was known to the accused-1 & 2. They entered into an agreement Ex.P.1 dated 14.03.2005 for construction of houses

in the lands belonging to the accused at the rate of Rs.400 per sq.ft., and the accused also agreed to pay the amount in a phased manner

depending upon the stage of the construction. According to the appellant/complainant, 1st accused should pay a sum of Rs.76,676/-(Rupees

Seventy Six Thousand Six Hundred and Seventy Six Only) and the 2nd accused should pay a sum of Rs.1,87,407/-(Rupees One Lakh Eight

Seven Thousand Four Hundred and Seven Only) and towards part payment, both the accused issued cheques Ex.P.4 and Ex.P.5 for a sum of

Rs.4000/- and Rs.9000/-respectively. When the cheques were presented by the appellant/complainant through his bankers, both the cheques

were returned for the reason ""insufficient funds"". When the complainant approached the bank Manager, he informed the appellant/complainant that

both the accused were paid the entire loan amount obtained by them for construction of the houses. The accused, immediately issued a notice

through a telegram cancelling the agreement (Ex.P.1) entered into between them. The appellant/complainant when approached the accused-1 & 2

and demanded them to pay the money, the accused-1 & 2 threatened the appellant/complainant that they would kill him if he demands money from

them. Thereafter, the appellant/complainant lodged a complainat with the Sub-Inspector of Police, Pothanur P.S., on 04.08.2005 which was

registered as a miscellaneuous peititon as evidenced by the challan (Ex.P.6) issued by the police.

On 12.08.2005, the appellant/complainant went to the house of the 1st accused where the 2nd accused was also present. On seeing the

complainant, the 1st accused caught hold of the collar of the appellant/complainant and slapped him on his face. The 2nd accused twisted the arms

of the appellant/complainant and pushed him down. According to the appellant/complainant, Durai Raj (P.W.2) and other general public witnessed

the occurence. When the general public tried to pacify the accused and the appellant/complainant, the accused-1 took 16mm rod and accused-2

took garden hoe (used for digging) and both of them attempted to hit the appellant/complainant and also threatened to kill him.

Thiru.Durairaj (P.W.2) who was assisting the appellant/complainant in the construction of houses of the accused has deposed that during August

2005, when he and the appellant/complainant went to the house of A1, both the appellant/complainant and accused had wordy quarrel, as a result

of which the 1st accused caught hold of the collar of the appellant/complainant and slapped him on his face and that the 2nd accused twisted the

arms of the appellant/complainant and pushed him down. He has further deposed that, A1 took an iron rod and A2 took a garden hoe and

attempted to hit the appellant/complainant. According to P.W.2, he and the general public pacified them. However A1 & A2 threatened to kill

P.W.1 if demands money from them.

Tr.Viswanathan (P.W.3) who went to the house of the accused for construction work on 12.08.2005 had deposed that he witnessed the

occurence. P.W.4 & P.W.5 are the Managers of the State Bank of India, Kurichi Branch and Bank of India, Vellaloor Branch respectively. They

have spoken to about the obtention of loan by A1 & A2 from their respective banks http://www.judis.nic.in and also adduced the documents

pertaining to the loans as Ex.P.7 to Ex.P.17.

When the accused was questioned by the learned Judicial Magistrate-VII, Coimbatore with regard to the circumstances appearing in evidence

against them U/s 313 of the Code of Criminal Procedure, they denied of having committed any offence.

The appellant/complainant is doing the construction business and agreed to construct houses for A1 & A2 and both the parties entered into an

agreement Ex.P.1. According to the appellant/complainant, as per the agreement, 70% of the construction has been completed and that the 1st

accused should pay a sum of Rs.73,673/-and a sum of Rs.1,87,000/-on behalf of the 2nd accused. The cheques dated 12.06.2004 issued by the

accused-1 & 2 for a sum of Rs.9000/-and Rs.4000/-respectively were dishonoured for the reason ""insufficient funds"". When the

appellant/complainant approached the accused-1 & 2 for payment of money, both the accused threatened him with dire consequences.

According to the appellant/complainant though he lodged a complaint with the Sub-Inspector of Police, Pothanur P.S., no action was initiated

by the police.6

Thereafter, on 12.08.2005 when the appellant/complainant went over to the house of A1 where A2 was also present, A1 caught hold of the

collar of the appellant/complainant and slapped him on his face and the 2nd accused twisted his arms and pushed him down. According to the

appellant both the accused threatened him with dire conseuqences. On the othr hand it is contended by the accused that the appellant/complainant

were advised to file a civil suit by the Police, Pothanur P.S., against the accused and that inspite of that, the appellant/complainant came over to

their house and picked up wordy quarrel with them. Therefore, according to the accused-1 & 2, the appellant/complainant was the aggressor and

also filed a private complaint against the accused with false allegations.

It is pertinent to mention that the present complaint was filed only on 03.03.2006 for the alleged occurence that took place on 12.08.2005.

The inordinate delay in filing the complaint has not been satisfactorily explained by the appellant/complainant.

The learned Judicial Magistrate-VII, Coimbatore has analysed the evidence adduced on the side of the appellant/complainant and had come to

the conclusion that the accused are not guilty of the offences punishable U/s 323, 352,420 & 506(II) of the IPC.

The appellant/complainant has not also adduced any accetable evidence to show that the cheque Ex.P.4 & Ex.P.5 issued by the accused were

dishonoured for the reason ""insufficient funds"". In fact, these cheques were not issued in favour of the appellant/complainant. Apart from this, no

evidence is adduced on the side of the appellant/complainant to show that he had completed 70% of the work as agreed by him. In any event, the

evidence of P.W.1 to P.W.3 do not inspire the evidence of this Court. As regards the alleged occurence that took place on 12.08.2005, there are

contradictions in material particulars in the evidence of P.W.1 to P.W.3. The learned Judicial Magistrate-VII, Coimbatore has highlighted those

contradictions and has rightly held that the evidence of P.W.1 to P.W.3 are untrustworthy. P.W.4 & P.W.5 are bank managers and their evidence

is least useful to the case of the appellant/complainant. The appellant/complainant has also not adduced any acceptable evidence to show as to

how he arrived at the figures found in Ex.P.2 & Ex.P.3. If at all, the appellant/complainant had completed 70% of the construction work, he should

have taken appropriate steps against the accused for getting the money from them. But, the appellant/complainant failed to do so. He has also not

issued any notice to the accused in this regard. Absolutely there is no evidence that the construction materials belonging to the

appellant/complainant were kept nearer to the house of the accused. Hence, the learned Judicial Magistrate-VII, Coimbatore has rightly concluded

that the evidence U/s 420 of the IPC has not been proved by the appellant/complainant. Similarly, the appellant/complainant in his complaint has

not specificallly mentioned the exact words uttered by the accused to pin down the accused for the offence U/s 506(ii) of IPC. The learned Judicial

Magistrate-VII, Coimbatore has given cogent and acceptable reasons for finding the accused not guilty of the offences U/s 323, 352, 420 &

506(ii) of the IPC and I therefore see no reason to interfere with the findings of the learned Judicial Magistrate-VII, Coimbatore.

In the result, Crl.A.No.781 of 2009 is dismissed. The order of acquittal passed by the learned Judicial Magistrate-VII, Coimbatore in

C.C.No.45 of 2006 is confirmed.