Kerala High Court
P.K.Sakeer Hussain vs State Of Kerala on 20 November, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939
CRL.A.No. 2481 of 2009 (A)
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IN SC 448/2008 of ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE
DATED 20-11-2009
APPELLANT(S)/3RD ACCUSED:
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P.K.SAKEER HUSSAIN,
S/O. MAYIN,
PATHIRIKKODAN HOUSE,
OLAVATTUR, PALKKAL,,
EDAVANNAPPARA,
MALAPPURAM DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-07-2017, ALONG WITH CRA. 2483/2009, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
ds
P.UBAID, J.
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Crl.A. Nos. 2481 & 2483 of 2009
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Dated this the 21st day of July, 2017
J U D G M E N T
The appellants in these two appeals challenge the conviction and sentence against them under Section 489(C) of the Indian Penal Code, in S.C.No. 448 of 2008 of the Court of Session, Kozhikode.
2. Crl.A.No. 2483 of 2009 is the appeal brought by the accused Nos. 1, 2 and 4 in the said case, and Crl.A.No. 2481 of 2009 is the appeal brought by the third accused. The accused Nos. 1, 2 and 4 are members of a family, and the third accused is the person who received some fake currency from the first accused. The offence was detected by the Circle Inspector of Police, Balussery, and later, investigation was taken over by the CBCID, SIG- III, Kozhikode. The detection was made at the house belonging to the first accused. The fourth accused is his wife, and the second accused is his son. The Circle Crl.A. Nos. 2481 & 2483 of 2009 -2- Inspector conducted a search at the house of the first accused on the basis of secret reliable information, that fake currency was being possessed and transacted by the first accused. After sending search memo to the court, the Circle Inspector proceeded for search. When the police party knocked on the door, the first accused opened the door, and in the presence of the accused Nos. 1 and 2, the Circle Inspector seized a huge quantity of fake currency, concealed at one of the rooms, and contained in a trunk. Some accessories like Computer, hard disc etc., used for counterfeiting currency were also seized by the Sub Inspector along with huge quantity of currency notes. When the Circle Inspector opened the box and examined the contents in detail, he saw one fake currency of 500 rupee denomination, and 693 counterfeit currency of 100 rupee denomination. The quantity of fake currency, and also the computer and other equipments used for counterfeiting notes were seized as per a search list by the Crl.A. Nos. 2481 & 2483 of 2009 -3- Circle Inspector. The accused were arrested on the spot. On the basis of information later, that the first accused had handed over some fake currency to the third accused, the Police arrested the third accused during investigation. After investigation, the CBCID submitted final report before the Judicial First Class Magistrate-II, Perambra.
3. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc-I), Kozhikode, for trial and disposal.
4. All the accused appeared before the trial court on summons, and pleaded not guilty to the charge framed against them by the trial court under Section 489(B) & (C) IPC. The prosecution examined 13 witnesses in the trial court, and proved Exts.P1 to P25 documents. MO1 to MO38 properties, including the fake currency notes and the computer and other equipments seized by the Police from the house of the first accused, were also identified during Crl.A. Nos. 2481 & 2483 of 2009 -4- trial.
5. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances. However, no defence evidence was adduced by any of the accused.
6. On an appreciation of the evidence, the trial court found all the four accused guilty under Section 489(C) IPC, and they were found not guilty under Section489(B) IPC. On conviction, the accused Nos. 1 to 3 were sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of 50,000/- each, and the fourth accused was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of 50,000/-, by judgment dated 20.11.2009. Aggrieved by the judgment of conviction, the four accused have come up in appeal.
7. When the two appeals came up for hearing, the learned senior counsel appearing for the accused Nos. 1, 2 and 4 submitted that if at all the evidence adduced by Crl.A. Nos. 2481 & 2483 of 2009 -5- the prosecution is acceptable and believable, the offence proved is only as against the first accused who is no more, and that the accused Nos. 2 and 4 were arraigned by the Police, just because they are the inmates of the house. As regards the third accused, who is a stranger, the learned counsel submitted that the only piece of evidence against him is seizure of three fake currency, but that seizure is not properly and satisfactorily proved by any acceptable evidence. The learned counsel submitted that the case brought by the CBCID as against the third accused is really doubtful, and so the accused is entitled for the benefit of this doubt. The learned senior counsel also submitted that such benefit of doubt must be given to the accused Nos. 2 and 4 also because, the prosecution as against them is based solely on some doubt, just because, they are the inmates of the house from where the fake currency notes were seized.
Crl.A. Nos. 2481 & 2483 of 2009 -6-
8. On the other hand, the learned Public Prosecutor submitted that the fake currency seized by the Police from the possession of the third accused was in fact handed over by the first accused as part of his transactions in fake currency, and that the first accused could not have made or transacted fake currency without the help of his son, who is well-versed in computer techniques. As regards the fourth accused, much was not argued by the learned Public Prosecutor, though he supported the conviction as against her also.
9. Pending these appeals, the first accused died. His death was recorded in the proceedings. Thus, the appeal brought in the name of the first accused stands abated under Section 394(2) Cr.P.C.. So, decision in Crl.A.No. 2483 of 2009 can be taken only as regards the accused Nos. 2 and 4.
10. Of the 13 witnesses examined in the trial court, PW2 is the Circle Inspector who detected the offence, Crl.A. Nos. 2481 & 2483 of 2009 -7- and PW5 is the Police Constable who assisted the Circle Inspector in the process of detection. PW6 and PW7, who attested the contemporaneous documents, turned hostile, but PW1, who had witnessed the search and seizure, very well supported the prosecution. He identified the properties and also the accused in this case. His evidence is that all the properties, including fake currency, were seized by the Police from the house of the first accused. PW3 is the Village Officer who prepared the Ext.P11 scene plan, PW4 is only an attestor to the Ext.P9 scene mahazar, PW8 is the Panchayat Secretary examined to prove the Ext.P12 ownership certificate in the name of the fourth accused, PW9 is the Assistant Engineer of the KSEB examined to prove that there was electricity connection to the house of the accused, PW10 is the Detective Inspector, who arrested the third accused, and seized the MO36 to MO38 properties from his possession, PW11 and PW2 are the Detective Inspectors who made investigation, and Crl.A. Nos. 2481 & 2483 of 2009 -8- PW13 is the Detective Inspector who closed the investigation, and submitted final report. The main evidence is that of PW1, PW2, PW5, PW8, PW10 and also that of the Investigating Officers.
11. PW2, the Circle Inspector, who detected the offence, has given clear and convincing evidence proving the search made by him at the house of the accused Nos. 1, 2 and 4, and also the seizure of the huge quantity of fake currency involved in this case. The electronic devices seized by him include a Computer, hard disc, UPS, Printer etc.. The evidence of PW2 is that the huge quantity of fake currency and some of the equipments were contained in a trunk kept at a room, and these things were taken and shown to the Police by the accused Nos. 1 and 2. When the Circle Inspector opened the box and examined the contents thoroughly, he could see one fake currency of 500/- and 693 fake currency of 100/- inside the box, and he also found some electronic devices and equipments, like Crl.A. Nos. 2481 & 2483 of 2009 -9- Computer, Hard Disc etc.. When he interrogated the accused Nos. 1 and 2, he could detect that all the counterfeit currency, he saw inside the box, were in fact made by the accused Nos. 1 and 2 by using the electronic devices found there. On being fully satisfied of the facts, the Circle Inspector arrested the accused on the spot, and seized all the contraband articles, including the huge quantity of fake currency, as per the Ext.P5 search list. The evidence given by the Circle Inspector is well corroborated by the evidence of PW5, the Police Constable. He is also an attestor to the Ext.P5 search list. Of course, the two other witnesses, who attested the documents, turned hostile, but PW1, examined as an independent witness, has fully supported the prosecution.
12. The total value of the fake currency assessed by the Circle Inspector is 69,800/-. All the contraband articles seized as per the Ext.P5 search list were well identified by PW2, and other material witnesses Crl.A. Nos. 2481 & 2483 of 2009 -10- in court. These properties include one fake currency of 500 (MO1), the other 693 fake currency of 100 in different sets (MO2 series to MO9 series), a Lazer Jet Printer (MO12), a CPU without hard disc (MO13) a Computer Monitor (MO14), a Computer Keyboard (MO15), an Adaptor (MO16) etc.. Thus, all the electronic devices and equipments seized by the Circle Inspector from the house of the accused, allegedly used by them to make fake currency notes, were well identified during trial by the Circle Inspector and the other witnesses. The electronic devices were examined by an electronic expert from the Government Polytechnic, Vadakara. Ext.P22 is the report submitted by him. The fake currency involved in this case was sent for examination to the Currency Press at Nashik. The Ext. P24 reports from the Press proves that all the currency notes involved in this case were identified as fake currency on examination at the Press. The defence has no dispute regarding this fact. The question to be decided on Crl.A. Nos. 2481 & 2483 of 2009 -11- facts is whether these fake currency and other equipments were seized from the possession of the accused, and if so, who among the different accused are liable for punishment.
13. The prosecution case is that the fake currency and other contraband articles were seized from the house of the accused Nos. 1, 2 and 4. What is proved by documents is that the said house actually belongs to the fourth accused. She is the wife of the first accused and the mother of the second accused. Though the first accused is the head of the family, the house stands in the name of the fourth accused, the wife. Ext.P12 is the ownership certificate issued and proved by PW8. The Ext.P5 search list shows that the Circle Inspector conducted search at the house No. UP 12/7 of the Unnikulam Grama Panchayat. The evidence given by PW8 read along with Ext.P12 certificate issued by him would show that this house belongs to the fourth accused, Kamala. The genuineness of the Ext.P12 certificate, or the evidence of PW8 proving the certificate, is Crl.A. Nos. 2481 & 2483 of 2009 -12- not disputed by the accused. So, it stands proved that the contraband articles involved in this case, including the fake currency and the electronic devices, were seized by PW2 from the house of the accused Nos. 1, 2 and 4, and the house actually stands in the name of the fourth accused.
14. On an examination of the entire materials, I find that the prosecution does not have any definite and satisfactory material to show that the fourth accused had any involvement or complicity in the act of offence committed by her husband and her son. Being a housewife, who does not have much of education and expertise, this lady could not have in any manner assisted or facilitated the commission of offence by her husband or son. It appears that the innocent lady happened to be arraigned as accused by the Police just because she is an inmate of the house, or just because the house stands in her name. The head of the family is the first accused. Just because the ownership of the house stands in the name of Crl.A. Nos. 2481 & 2483 of 2009 -13- the wife, she cannot be prosecuted, or made liable for the illegal activities committed inside the house by the other inmates of the house. The prosecution does not have any material to show that the fourth accused had any sort of involvement and complicity in the possession of fake currency. That cannot be the position as regards the second accused, who is the educated son of the first accused having scientific knowledge and expertise. In the absence of any definite material to prove the complicity of the fourth accused, I find that she will have to be acquitted.
15. Before discussing the evidence as against the accused Nos. 1 and 2, let me see what is the evidence against the third accused, who was arraigned during investigation on the basis of materials proving his complicity as the person who happened to receive some fake currency from the first accused. The CBCID happened to arrest the third accused, and the Inspector also seized three fake currency from his possession on arrest, on the Crl.A. Nos. 2481 & 2483 of 2009 -14- basis of the statements given by the first accused on interrogation. Anyway, the only piece of evidence relied on by the prosecution as against the third accused is the seizure of three fake currency from his possession on arrest. Though a search was made by the Police at his house also, nothing could be seized on house search. The third accused was arrested by PW10 during investigation. He also identified the MO36 fake currency notes seized from the possession of the third accused on arrest. The mahazar as per which he seized the properties was also proved by the Detective Inspector. I find no reason to disbelieve the evidence of PW10 regarding the seizure of counterfeit currency from the possession of the third accused. When a person is found in possession of more counterfeit currency than one, it will have to be presumed, until the accused proves otherwise, that he received possession of such quantity of fake currency as part of a vicious transaction, with the knowledge that it is fake. Crl.A. Nos. 2481 & 2483 of 2009 -15- When there are materials to show that the accused had transactions in fake currency, or when he is not in a position to account for the possession of fake currency satisfactorily, the only finding possible is that he possessed such currency quite consciously, or with the knowledge that it is fake currency. He has no explanation how or in what circumstance, some fake currency of 100 rupee denomination happened to be seized from his possession by PW10, and he has also no explanation why the Police should bring a false case against him. Just because, there is no independent evidence to prove the fact of seizure, the court cannot reject the evidence given by PW10, which is otherwise well acceptable and blemishless. I find that that seizure of the MO36 fake currency notes from the possession of the third accused stands well proved in this case, and so, he is liable for punishment under Section 489 (C) IPC.
Crl.A. Nos. 2481 & 2483 of 2009 -16-
16. Now let me see whether the second accused in this case can be found guilty.
17. The evidence given by PW2 will show that the fake currency notes were seized at the instance of the accused Nos. 1 and 2. The second accused is the son of the accused Nos. 1 and 4. Evidence proves that he was arraigned as accused by the Police not simply on the basis that he is an inmate of the house. There is nothing to show that the deceased first accused had any scientific knowledge about the technical aspects of making fake currency by using computer techniques. The second accused is an educated person having such know-how. The evidence given by PW2 will show that the contraband articles including the fake currency were seized at the instance of the accused Nos. 1 and 2. There is reason to believe that the second accused was also a party to the act of offence committed by the first accused. The second accused cannot be heard to plead ignorance about the Crl.A. Nos. 2481 & 2483 of 2009 -17- huge quantity of currency notes kept at the house by his father. I do not think that the second accused was arraigned simply for the reason that he is an inmate of the house. His conduct at that time would indicate that he had also some role in the transaction of fake currency by the deceased first accused. I am not inclined to let the second accused free on the ground that he was only an inmate of the house, or that there is no definite material to prove his complicity. Though there is no direct evidence, I find some circumstances including his conduct at the time of detection to find that he had also complicity in the act of offence committed by his father.
18. It is impossible to believe that all the machineries and devices could be used by the first accused, without the aid of anybody. The position or circumstance of the second accused is different from that of the fourth accused. I find that the circumstances in this case, including the presence of the second accused at the Crl.A. Nos. 2481 & 2483 of 2009 -18- time of seizure of the fake currency, and also his conduct at the relevant time proved by PW2, will prove that the second accused had also complicity or involvement in the possession of fake currency. Of course, what is required for a conviction under Section 489(C) IPC is not merely innocent possession. This is not a case where one or two fake currency were seized from the possession of the accused. It is a huge bundle of fake currency containing 693 notes of 100 rupee denomination, and one currency of 500 rupee denomination. There is no doubt at all that this much fake currency was possessed or stored by them for some illegal purposes, or that they had transacted with these currency notes, and it was in the said transaction, three currency notes came in the hands of the third accused. So, I find that the conviction against the second accused under Section 489(C) IPC will have to be confirmed.
Crl.A. Nos. 2481 & 2483 of 2009 -19-
19. The fourth accused is found not guilty in appeal, and the appeal brought in the name of the first accused stands abated. The accused Nos. 2 and 3 are liable for conviction under Section 489(C) IPC. The trial court has sentenced the accused Nos. 2 and 3 to undergo rigorous imprisonment for four years each, and to pay a fine of 50,000/- each. It was submitted that the second accused has already undergone substantial term in jail from 22.11.2009 to 02.08.2011. Only three currency of 100 rupee denomination could be seized from the possession of the third accused. On a consideration of all the relevant aspects, including the fact that no crime of similar nature is seen reported against the accused Nos. 2 and 3, I feel that a term of rigorous imprisonment for one and a half years will be the adequate sentence in this case. If the accused Nos. 2 and 3 have already undergone the required term of sentence inclusive of the default sentence, they can be let free.
Crl.A. Nos. 2481 & 2483 of 2009 -20- In the result, the appeal brought in the name of the deceased first accused in Crl.A.No. 2483 of 2009 will stand abated under Section 394(2) Cr.P.C., and the appeal brought by the fourth accused is allowed. She is found not guilty of the offence under Section 489(C) IPC, and accordingly, she is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C.. The conviction and sentence against the fourth accused (fourth appellant) in S.C. No. 448 of 2008 will stand set aside. But, the conviction against the second accused (second appellant) under Section 489(C) IPC is confirmed in appeal, and the appeal brought by him is disposed of accordingly. The conviction against the third accused (third appellant) under Section 489(C) IPC is also confirmed in appeal, and his Crl.A. No. 2481 of 2009 is disposed of accordingly. However, the jail sentence imposed by the trial court will stand reduced to rigorous imprisonment for one and a half years. The fine sentence imposed by the trial court, with Crl.A. Nos. 2481 & 2483 of 2009 -21- the default sentence thereon, is maintained. If the accused Nos. 2 and 3 have already undergone the required term of sentence inclusive of the default sentence, they can be let free.
Sd/-
P.UBAID JUDGE ds 12.07.2017 //True copy// P.A. to Judge