THE HONOURABLE MR v. Muthuvel

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 11.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.677 of 2001Gopala Ramanath .. Appellant/complainantvs.Muthuvel .. Respondent/1st accused This Criminal Appeal is filed against the judgment passed by thelearned Additional Chief Metropolitan Magistrate, Egmore, Chennai inC.C.No.5800 of 1989 dated 11.06.2001.For Appellant : Mr.V.KannanFor Respondent : Ms MadhumathiJUDGMENTThis appeal has been preferred against the Judgment in C.C.No.5800 of1989 on the file of the learned Additional Chief MetropolitianMagistrate, Egmore, Chennai. The complainant, who had lost his casebefore the trial Court in a private complaint preferred by him underSection 200 of Cr.P.C. against the accused for an offence under Sections341,342,384,385 and 506(ii) of IPC r/w 34 of IPC, is the appellant herein.2. The short facts narrated in the complaint by the complainantagainst the accused are that the complainant is doing Real Estate businessin the name and style of "M/s IVY Real Estate" and that P.W.2 is theManager of the said business. During September 1988, one Selvarathinam hadapproached the complainant and offered his land measuring 9 acres 83 centsat Vadanemmeli Village, Chengleput District for sale and also entered intoan agreement with the complainant. When the complainant was in search ofa prospective purchaser of the said land, A2 a real estate broker broughtone Sankaran and introduced him to the accused as a prospective buyer.After visiting the lands, Sankaran did not pursue the matter. Thereafter,one J.Mohan Joseph, Real Estate Agent had introduced Anilkumar andJagadishkumar to the complainant and they have expressed their desire topurchase the said land and in pursuance of it, they have paid an advanceamount of Rs.2,00,000/- to the complainant on 21.12.1988 and that the sale https://hcservices.ecourts.gov.in/hcservices/ deed was also executed in their favour in respect of the said land on20.1.1989. According to the complainant, A2 has not rendered any servicein respect of the sale of the land in favour of Anilkumar andJagadishkumar. In the mean time, A2 had preferred a complaint against thecomplainant with Teynampet Police on 17.2.1989. Two policemen came to thehouse of the complainant along with A2 and took him to the TeynampetPolice Station informing that he was wanted by A1, the Inspector of Policewhere A1 abused the complainant and also his Manager(P.W.2) and hadassaulted both of them with hands and lathy and under threat and undercriminal intimidation, A1 demanded Rs 1,00,000/- to the complainant to bepaid to A2. Fearing the arrest and harassment by A1, the complainantproceeded to his house escorted by constables Babu, Ayyampillai and A2 andwithdrew Rs.50,000/- from the South Indian Bank,Mylapore Branch,Chennaiand returned to the police station with money and produced before A2 whichwas received by A1 and kept in his cubboard. When the complainant demandeda receipt, again A1 threatened to arrest the complainant, if he divulgedthe matter to anyone. A2 also abused the complainant in filthy language.The complainant has also approached the Principal Sessions Court, Chennaifor Anticipatory Bail. But the said application was dismissed on theground that no case was filed against the complainant. Hence the complaint.3. After taking cognizance of the complaint preferred by thecomplainant, the learned trial Judge, after securing the accused, onsummons, furnished copies under Section 207 Cr.P.C. and framed chargesunder Sections 341,342,384,385 and 506(ii) of IPC r/w 34 of IPC, whenquestioned, the accused pleaded not guilty.4. On the side of the complainant, P.Ws 1 to 8 were examined and ExsP1 to P5 were examined.4a. P.W.1 is the complainant, who would narrate what he had stated inthe complaint. P.W.2 is the Manager of P.W.1, who would corroborate theevidence of P.W.1. P.W.3 is the owner of land measuring 9 acres and 83cents at the relevant point of time, who had executed a sale deed infavour of one Anilkumar and Jagadishkumar through P.W.1. P.W.4 also speaksabout the transaction which took place between P.W.1 and A1. P.W.5 alsospeaks about the transaction which took place between P.W.1 and Anilkumarand Jagadishkumar. P.W.6 is Jagadishkumar, one of the purchasers of theland from Selvarathinam. P.W.7 is the wife of P.W.1. She would depose thaton 17.2.1989 at about 6.00a.m her husband P.W.1 was taken to the policestation by two police constables. P.W.8 is the Manager of the South IndiaBank Ltd., Mylapore Branch, Chennai. According to him, P.W.1 hadwithdrawn a sum of Rs.50,000/- on 17.2.1989 from his account by way of ExP3 cheque. Ex P4 is the ledger extract maintained in the said bank inrespect of the account relating to P.W.1. Ex P5 is the statement ofaccount of P.W.1. https://hcservices.ecourts.gov.in/hcservices/

5. Pending trial, A2 was absconding and as against him the case hasbeen spilt up as C.C.No.9239 of 1993. 6. When incriminating circumstances were put to the accused, A1 woulddeny his complicity with the crime. 7.After going through the oral and documentary evidence, the learnedTrial judge has come to a conclusion that the charges levelled against theaccused have not been proved beyond any reasonable doubt and accordinglyacquitted the accused. Aggrieved by the findings of the Trial Judge, thecomplainant has preferred this appeal. 8. Now the point for determination in this appeal is whether thefindings of the learned trial Judge is perverse in nature to warrant anyinterference from this Court?9. The POINT: It is seen from the evidence of P.W.3 to P.W.6 that there were sometransactions in connection with the real estate business between P.W.1 andA2. One Selvarathinam had approached the complainant for selling his landmeasuring 9 acres 83 cents at Vadanemmeli Village, Chengleput District.When the complainant was in search of a prospective buyer, A2 approachedthe complainant with a prospective buyer by name Sankaran but aftervisiting the lands, the said Sankaran could not pursue the matter further.But subsequently, the land was sold to P.W.6 Jagadishkumar. It is thecase of the complainant that subsequently, A2 had preferred a complaintwith A1, who took P.W1 and P.W.2 to the police station and beat them withhands and lathy and criminally intimidated them and directed P.W.1 to paya sum of Rs.50,000/- to A2 towards brokerage and also another sum ofRs.5,000/- to him. It is in evidence through P.W.8 that the said amountof Rs,50,000/- was drawn by P.W.1 and was handed over to A2 who in turnhad handed over the same to A1 and that the receipt was issued by A2 toP.W.1. According to P.W.1,the occurrence had taken place on 17.2.1989 butadmittedly the private complaint was preferred only on 4.5.1989. Thereason offered by P.W.1 is that A1 being a police officer may file a falsecase against him. But the learned trial Judge had acquitted the accused onthe ground that there is no proper explanation for the long delay inpreferring the complaint and also on the basis of the discrepancies in theevidence of P.W1 and P.W.2. As correctly pointed out by the learnedcounsel appearing for the appellant in Lachman Singh-v- State of Haryana(2007(1) Supreme Court Cases(cri) 123), the minor discrepancies in theevidence of P.W.1 and P.W.2 can be ignored but the fact remains why thereis a long inordinate delay in preferring the complaint before a Court oflaw.10. Yet another circumstances glares at the face of the case of thecomplainant is that he had moved the Principal Sessions Court, Chennaiunder Ex P1 for Anticipatory bail. The natural conduct of a person, who is https://hcservices.ecourts.gov.in/hcservices/ under the constant threat of a police officer, will be to approach thehigher officials like Commissioner of Police to prefer a complaintagainst the concerned police officials. Even after handing over the saidamount of Rs.55,000/- to the accused concerned, P.W.1 has not chosen toprefer any complaint with the higher police officials.11. The learned counsel appearing for the appellant relying on adecision reported in Trimukh Maroti Kirkan-v- State of Maharashtra(2007(1) Supreme Court Cases(cri) 80) and contended that the complainantP.W.1 is not in a position to let in evidence in respect of a thing whichhad happened inside the police station. The relevant paragraph relied onby the learned counsel for the appellant in the above cited decision runsas follows:"If an offence takes place inside the privacy of ahouse and in such circumstances where the assailantshave all the opportunity to plan and commit theoffence at the time and in circumstances of theirchoice, it will be extremely difficult for theprosecution to lead evidence to establish the guiltof the accused if the strict principle ofcircumstantial evidence, as noticed above, isinsisted upon by the Courts. A judge does notpreside over a criminal trial merely to see that noinnocent man is punished. A judge also presides tosee that a guilty man does not escape. Both arepublic duties,(See Stirland.v Director of PublicProsecutions(1944 AC 315:(1944)2 AII ER 13(HL) quotedwith approval by Arijit Pasaypat,J in State ofPunjab-v- Karnail Singh(2003) 11 SCC 271: 2004 SCC(cri) 135). The law does not enjoin a duty on theprosecution to lead evidence of such character whichis almost impossible to be led or at any rateextremely difficult to be led. The duty on theprosecution is to lead such evidence which it iscapable of leading, having regard to the facts andcircumstances of the case. Here it is necessary tokeep in mind Section 106 of the Evidence Act whichsays that when any fact is especially within theknowledge of any person, the burden of proving thatfact is upon him. Illustration ( b)appended to thissection throws some light on the content and scope ofthis provision and it reads: (b) A is charged withtravelling on a railway without ticket. The burden ofproving that he had a ticket is on him."There cannot be two opinion with regard to the principles laid down bythe Honourable Apex Court in the said ratio. But in the present facts ofthe case, the non explanation of inordinate delay in preferring thecomplaint atleast before the Judicial Magistrate will cut at the root ofthe case of the complainant. https://hcservices.ecourts.gov.in/hcservices/

12. Under such circumstances, I do not find any reason to interferewith the findings of the learned trial Judge who on the basis of theavailable evidence has come to a correct conclusion that the chargeslevelled against the accused have not been proved beyond any reasonabledoubt.13. In fine, the appeal is dismissed confirming the Judgment of thelearned Additional Chief Metropolitan Magistrate, Egmore, Chennai inC.C.No.5800 of 1989 dated 11.6.2001.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The Additional Chief Metropolitan Magistrate, Egmore, Chennai2. The Chief Judicial Magistrate, Egmore, Chennai.Crl.A.No.677 of 2001 KG(CO)RVL 24.07.2007