Kerala High Court
Prakash vs State Of Kerala on 29 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.2239 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942
CRL.A.No.2239 OF 2005
AGAINST THE JUDGMENT IN SC 2104/2002 DATED 23-12-2005 OF I
ADDITIONAL SESSIONS JUDGE, KOLLAM
APPELLANT/ACCUSED:
PRAKASH
S/O.VELU, KRISHNAVILASOM VEEDU,
CALLED ASHTAMANGALAM NEAR MAHAVISHNU TEMPLE,
NEDIYARA, AGASHTHYACODE MURI,
ANHAL VILLAGE,
PATHANAPURAM TALUK,
KOLLAM DISTRICT.
BY ADV. SRI.PRAKASH (PARTY)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2239 OF 2005 2
JUDGMENT
Dated this the 29th day of June 2020 The above appeal is filed by the accused in S.C.No.2104/2002 on the file of the First Additional Sessions Judge, Kollam. He was chargesheeted by the Detective Inspector, CBCID(CFS), Thiruvananthapuram, alleging the offences punishable under Sections 489B and 489C of IPC.
2. In this appeal, the advocate, who filed the appeal, relinquished his vakalath. Therefore, when this appeal came up for consideration on 26.5.2020, this Court passed the following order.
"In the above case, the party in person is appearing. Therefore, the Registry is directed to issue notice to the appellant through the Station House Officer, Anchal Police Station informing that the appeal is posted for final hearing on 29.6.2020"
3. Thereafter, the Sub Inspector of Police, Anchal filed a report saying that the whereabouts of the appellant is not known. The report of the Sub Inspector of Police, Anchal is extracted hereunder:
"ബഹുമമാനപപ്പെട്ട കകേരള ഹഹൈകകമാടതതി മുബമാപകേ അഞ്ചൽ കപമാലലീസസ കസ്റ്റേഷനതിൽ നതിനന്നും കബമാധതിപ്പെതിക്കുന്നതസ.
ബഹു: കകേരള ഹഹൈകകമാടതതിയതിൽ നതിനന്നും അയച്ചു കേതിട്ടതിയ Criminal CRL.A.No.2239 OF 2005 3 Appeal No.2239/2005 (SC No.2104/2002 I Additional Sessions Judge, Kollam) കകേസതിപല അപ്പെലീലുകേമാരനമായ പ്രകേമാശസ, S/o.കവേലു, കൃഷ്ണവേതിലമാസന്നും വേലീടസ (അഷ്ടമന്നുംഗലന്നും വേലീടസ ) മഹൈമാവേതിഷ്ണു കക്ഷേത്രതതിന സമലീപന്നും, പനടതിയറ, അഞ്ചൽ എന്ന വേതിലമാസതതിലുന്നും പരതിസരതന്നും അകനഷതിച്ചതതിൽ ടതി അഡ്രസതികലമാ പരതിസരങ്ങളതികലമാ ടതിയമാൻ തമാമസമതിലമാപയനന്നും വേർഷങ്ങൾക്കു മുമസ തപന്ന ടതി അഡഡ്ഡ്രസതിപല വേലീടന്നും സ്ഥലവന്നും വേതിറസ കപമായതിട്ടുള്ളതമാപണെനന്നും ഇകപ്പെമാൾ അവേതിപട അക്ഷേയസ ഭവേനതിൽ ഷമാജതി എന്നയമാളമാണെസ തമാമസപമന്നസ അറതിയമാൻ കേഴതിഞ. തുടർന്നസ ടതിയമാപന സകഹൈമാദരതി ഭർതമാവേമായ ഏരൂർ കേരതിബതിൻകകേമാണെന്നും ശതിൽപ്പെമാലയന്നും വേലീട്ടതിൽ വേതിദദമാധരൻ മകേൻ അജയകനമാടന്നും (ph:9961858283) സകഹൈമാദരനമായ ഏരൂർ കേരതിബതിൻകകേമാണെന്നും കുഞമാറയതിൽ പ്രസമാദതികനമാടന്നും (ph:9947401910) ബന്ധുവേമായ പനടതിയറ അനതിൽ ഭവേനതിൽ പങ്കജവേലതികയമാടന്നും കനരതിൽകേണസ അകനഷതിച്ചതതിൽ ടതിയമാൻ വേർഷങ്ങൾക്കുമുമ്പുതപന്ന നമാടവേതിട്ടു കപമായതിട്ടുള്ളതമാപണെനന്നും ബന്ധുകളുമമായതി യമാപതമാരുവേതിധ സമർകവന്നും പുലർതന്ന ആളലപയനന്നും അറതിയമാൻ കേഴതിഞ. നമാട്ടുകേമാകരമാടന്നും പപമാതുപ്രവേർതകേകരമാടന്നും കചമാദതിചസ ടതി വേതിവേരന്നും സതദമമാപണെന ഉതമകബമാധദന്നും വേന്നതിട്ടുള്ളതമാണെസ. അനന്തര നടപടതികേൾകസ ടതി റതികപ്പെമാർട്ടസ സമർപ്പെതിച്ചുപകേമാള്ളുന."
4. Therefore, there is no purpose in waiting for the appellant. A criminal appeal cannot be dismissed for default. In K.S.Panduranga v. State of Karnataka (2013)3 SCC 721, the Apex Court after considering the decision in Bani Singh v. State of U.P [1996(2) KLT 424), formulated certain procedures to dispose of Criminal Appeal in the absence of the appellant and counsel. The relevant portion of the judgment in K.S.Panduranga's case (supra) is extracted hereunder:
19. From the aforesaid decision in Bani Singh, the principles that can be culled out are:
1.1. That the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining CRL.A.No.2239 OF 2005 4 the merits;
1.2. That the Court is not bound to adjourn the matter if both the appellant or his counsel/ lawyer are absent;
1.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;
1.4. That it can dispose of the appeal after perusing the record and judgment of the trial court; 1.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 1.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation."
5. In this case, the whereabouts of the appellant are not known. The counsel who filed the Criminal Appeal has relinquished his vakalath. In such circumstances, Advocate Pooja Pankaj is appointed as amicus curiae. She was allowed to peruse the records.
6. Heard Advocate Pooja Pankaj, the amicus curiae for the appellant and the learned Public Prosecutor.
7. The prosecution case is that on 26.9.1997, at about 2.30 pm., the accused came to the Archana Theatre situated at Anchal with the intention and knowledge to trafficking in counterfeit currency notes of 100 rupee denomination possessed by him and he gave one of the 100 rupee fake currency notes to the salesman in the theatre canteen after purchasing a fruity and the salesman CRL.A.No.2239 OF 2005 5 in the theatre felt suspicious regarding the note handed over to him by accused. He intimated the Manager of the theatre about the same who, in turn, conveyed the message to the nearby police station, and after that CW6 and police party arrived there and seized 40 fake currency notes of 100 rupee denomination kept by the accused in his pocket. Hence the accused committed offences punishable under Section 489B and 489C of the Indian Penal Code. This is the crux of the prosecution case.
8. To substantiate the case the prosecution examined PW1 to PW7. Exts.P1 to P7 are marked on the side of the prosecution. MO1 and MO2 are the material objects.
9. After going through the evidence and the documents, the trial court found that the accused committed the offences under Sections 489B and 489C of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/- under Section 489B IPC. In default of payment of fine, he is directed to undergo simple imprisonment for two months. He is also sentenced to undergo rigorous imprisonment for a period of two years under Section 489C IPC. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
10. Altogether seven witnesses were examined by the CRL.A.No.2239 OF 2005 6 prosecution. PW1 and PW2 are the independent witnesses examined by the prosecution. They are the security staff in the theatre, from where the alleged seizure was effected by the police. PW3 is the Police Constable who accompanied PW4 Head Constable at the time of detection. PW4 Head Constable is the detecting officer. PW5 is the Manager of the theatre. PW6 is the Sub Inspector of Police who conducted preliminary investigation. PW7 verified the charge and submitted the final report before the court.
11. The offence was detected at the instance of Head Constable, Anchal Police Station, who was examined as PW4. According to him, on getting a message from PW5, the Manager of Archana theatre, he proceeded to the threatre. He saw the accused in a panic mood and putting a 100 rupee currency note into his pant's pocket. In search of his body, the case of PW4 is that about 40 counterfeit currency notes were found kept by him in his pocket. In addition to that, one 50 rupees Indian currency and one 20 rupees Indian currency notes were also found in possession of the accused. They were original Indian currency notes. MO1 series are the fake currency notes, and MO2 series is the original currency notes. The accused was arrested, and he was taken to the police station. On the strength of Ext.P1 CRL.A.No.2239 OF 2005 7 mahazar, PW4 registered Ext.P4 FIR against the accused. The seized notes and original notes were produced before the court by the witnesses. The Police Constable, who was accompanying PW4 was examined as PW3. He supported the version of PW4. He also identified MO1 series as counterfeit notes recovered from the possession of the accused. MO2 series are also identified by the witnesses as the original notes found in possession of the accused. The Manager of the theatre who gave information regarding the incident to the police also deposed before the court as PW5, supporting the version given by PW3 and PW4. So there is evidence of PW3 to PW5 to show that the accused was found in possession of MO1 series counterfeit notes. Ext.P1 is the mahazar prepared by PW1 from the spot, which is a contemporaneous record. The fake notes were forwarded for an expert opinion. Ext.P7 is the expert opinion on suspected notes. In Ext.P7, it is stated that MO1 series notes are counterfeit notes. It is true that PW1 and PW2 turned hostile to the prosecution. PW1 and PW2 are the alleged independent witnesses. But PW1 and PW2 admitted the signature in Ext.P1 mahazar. They deposed that they did not see the alleged incident. But in the light of the evidence of PW3 to PW5 and in the light of Exts.P1 and P7, I think the prosecution is able to prove that the accused CRL.A.No.2239 OF 2005 8 was in possession of the counterfeit notes knowing or having reason to believe that the same to be forged or counterfeit notes. The behaviour of the accused at the time of search by PW4 is also relevant at this stage. Moreover, it is not a single note seized from the accused. About 40 fake currency notes are seized from the accused and that itself shows that the accused was having knowledge that the notes in his possession are counterfeit notes. Therefore, there is nothing to disbelieve the evidence of PW3 to PW5 regarding the possession of counterfeit notes by the accused with the knowledge that the same is counterfeit notes.
12. The amicus curiae seriously argued before me that the offence under Section 489B IPC is not made out in this case. The case of the prosecution is that, the accused handed over a fake 100 rupee note to the salesman in the theatre canteen after purchasing a fruity and the salesman in the theatre felt suspicion regarding the notes handed over to him by the accused. He intimated the same to the Manager, and the Manager informed the police. The salesman is not examined. Therefore, it cannot be said that the offence under Section 489B IPC is proved by the prosecution. To prove the offence under Section 489B IPC, the prosecution has to prove that the accused sells to, or buys or receives from, any other person, or otherwise traffics in or uses CRL.A.No.2239 OF 2005 9 as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. In the light of the fact that the salesman of the theatre canteen is not examined, there is no evidence that the accused used the fake notes for purchasing the fruity juice. Therefore, the prosecution is able to prove only possession of the counterfeit notes. No offence under Section 489B IPC is made out. The accused is entitled to the benefit of doubt as far as Section 489B IPC is concerned. But in the light of the evidence of PW3 to PW5 and Exts.P1 to P7, the offence under Section 489C IPC is proved.
Hence this Criminal Appeal is allowed in part.
(i) The conviction and sentence imposed on the appellant under Section 489B IPC are set aside.
(ii) The conviction and sentence imposed on the appellant under Section 489C IPC are confirmed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab