Karnataka High Court
Farooq @ Farooq Ahammad Beary vs State Of Karnataka on 24 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.A.No.884/2010
BETWEEN:
FAROOQ @ FAROOQ AHAMMAD BEARY
S/O AHAMMAD BEARY
AGED ABOUT 22 YEARS
R/AT H.No.1/116, MUGALI MANE
KARAPADY, BANTWAL TALUK. ...APPELLANT
(BY SMT. HALEEMA AMEEN, FOR
SRI S VISHWAJITH SHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS
BANGALORE. ...RESPONDENT
(BY SRI VISHWAMURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 30/31.07.2010 PASSED BY THE II
ADDITIONAL SESSION JUDGE D.K. MANGALORE IN
S.C.No.42/2008 CONVICTING THE APPELLANT/
2
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 489B AND 489C OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR FIVE YEARS AND PAY
A FINE OF Rs.5,000/- IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO SIMPLE IMPRISONMENT
FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 489B OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR THREE YEARS AND
PAY A FINE OF Rs.5,000/- IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO SIMPLE IMPRISONMENT
FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 489C OF IPC. BOTH THE SENTENCES
SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is directed against the judgment passed by the learned II Additional Sessions Judge, Dakshina Kannada, Mangalore, in S.C.No.42/2008 dated 30th July 2010, holding the accused therein guilty of committing the offence punishable under Sections 489 B and 489C and sentencing him to undergo rigorous imprisonment for a period of 5 years 3 and to pay fine of Rs.5,000/- in default of payment of fine to undergo simple imprisonment for a period of six months for the offence punishable under Section 498B IPC. Further to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence punishable under Section 489C IPC. However, accused was acquitted of the offence punishable under Section 120B read with Section 34 IPC. Both the sentences are directed to run concurrently.
2. Being aggrieved by the conviction and sentence imposed by the learned trial Judge, appellant/accused has presented this appeal.
3. Criminal case came to be registered before the Bajpe Police Station, Mangalore, in Crime No.18/2008 at 19.15 hours against the accused. The complainant 4 is one P.Vijayan, Senior Intelligence Officer, DRP, Mangalore (DRI).
4. The substance of the complaint is, on 1.2.2008 at Bajpe International Airport, one Farooq was coming in Air India Express-IX-382 at 7.15 from Dubai. He was carrying two baggage after custom clearance and when he was about to move out of the airport, by that time, the complainant who is the Officer of Directorate of Revenue Intelligence Regional Unit of Mangalore, suspected him and on searching two bags brought by him, one was trolley bag and the another one cardboard carton bag. Out of them, cardboard carton bag was inspected and verified by the officials, it was containing two containers of milk powder. When the containers containing the milk powder was opened, there were fake Indian currency in the denomination of Rs.1,000/- and Rs.500/- resembling the currency of India and the total value of the fake currency was 5 Rs.14,97,000/-. Thus, the accused was carrying the said boxes and wanted to use the fake currency to cause loss to the Indian economy and brought them from Dubai to Bajpe International Airport, Mangalore. He was apprehended when he came to international airport. The fake currency notes were bearing the value of Rs.14,97,000/- and that was seized through mahazar. He was arrested and thereafter produced before the jurisdictional court.
5. The complainant is one P. Vijayan. He has stated that there was a credible information to the officers of the Directorate of Revenue Intelligence, Regional Unit of Mangalore, that the accused Farooq, 20 years, son of Ahmed Beary, residing at No.1-116, Mugli House, Karopady, Bantwal Taluk, DK District, being the holder of Indian Passport bearing No.F7452228 was flying from Dubai to India, in Air India Express Flight IX 382. 6 The said flight arrived in the Airport at about 19.15 hours on 1.2.2008.
6. The accused, on arriving at airport, passed immigration clearance, collected his baggage from the conveyor belt and passed customs clearance and started coming out through the exit point of the said arrival hall in the normal course along with the two baggages. The officers asked him regarding carrying any dutiable goods and paid any customs duty. He was also asked whether he was possessing contraband item in the baggages.
7. The said passenger answered in the negative. Thereafter, the search of baggage was undertaken. It was found that the passenger-accused was carrying currency notes of notional value of Rs.14,97,000/- through two milk powder cans in a very unsuspecting manner and attempted to smuggle the same in 7 contravention of the provisions of Customs Act, 1992 and thereby caused injury and loss to the economic security of India. The complainant requests for registering the complaint against the accused. Accordingly, police registered the criminal case against the accused-Farooq for the offence punishable under Sections 489(A), 489(B) and 489(c) of IPC in Crime No.18/2008. Mahazar was conducted on 5.2.2008 at the place of committing the offence i.e. at the airport as per Ex.P5. Seizure mahazar was conducted as per Ex.P6 on 5.2.2008, wherein, a mobile of Nokia company, sim cards bearing Nos.H. 89912, 00015, 77012, 7999 H6 and 89971, 12199, 35029, 5528 were seized.
8. Another mahazar was conducted on 25.2.2008 for seizing 06 bundles of Rs.1,000/- and 18 bundles of Rs.500/-. That was seized by unceasing the packets. It is to be remembered that the amount was 8 recovered by the Officers of Directorate of Revenue Intelligence, Regional Unit, Mangalore, under the mahazar, dated 1.2.2008. Accused was first apprehended in the airport on the basis of the credible information and was found in possession of currency notes and the value of the currency that were seized was Rs.14,97,000/-under mahazar Ex.P10.
9. It was after the completion of the investigation, final report came to be filed against the accused and two others for the offences punishable under Sections 489B and 489C and 120B of IPC. Two other persons came to be added as accused, as the accused has stated that two other persons gave the packet to him without giving any details.
10. The learned trial Judge after hearing the accused found that there were grounds to frame charge against the accused under Sections 120B r/w 34 IPC 9 and under Sections 489B and 489C IPC. Accused pleaded not guilty and the case came to be tried.
11. Learned trial Judge was accommodated with the oral evidence of PWs 1 to 14, including the complainant, documentary evidence of Exs.P1 to P28(a) and Exs.D1 and D2 and material objects of MO-1 to 33.
12. Among 14 witnesses examined, P.Vijayan is examined as PW1 on 3.8.2009. He is the complainant and working as Senior Intelligence Officer in Directorate of Revenue Intelligence, Mangalore. He deposes that, on 1.2.2008 on receiving the definite information about the accused carrying fake currency of Rs.18,71,000/-, he goes to Bajpe International airport along with PW2-Madhusudhan Bhat, PW3- Ramakrishnaiah and PW4-Ramakrishnan were present. All of them are officials. They found one 10 person by name Farooq, the accused after completing immigration clearance was proceeding towards exit point and was on his way out from the airport. It was at that point, accused was enquired about the contents of bags that he was carrying. He failed to furnish the details and on verifying it, complainant took accused to a room, his bags were inspected, it contains currency notes to the extent of Rs.14,97,000/- and it was seized. The witness identifies the complaint lodged by him. This witness says that accused had given voluntary statement also regarding commission of offence.
13. He has been cross examined by learned counsel for accused at length. It is elicited that the information regarding his travel was received by Mohammed Ashraf and witness was asked to conduct investigation. The substantial portion of his cross 11 examination consists of denials and pleading of innocence by the accused.
14. The other material witnesses in the case are:
PW2, Madhusudhan Bhat. He is also an Officer and his designation is Senior Intelligence Officer. He reiterates the version spoken by PW1 in nutshell. He deposes regarding the credible information being received, going to Airport along with the complainant, conducting search on the accused. He also speaks regarding the procedures that were necessary for a seizure being conducted at the time of effecting the search. He has also been cross examined. No significant omissions or contradictions are forthcoming.
15. PW3-Ramakrishnaiah, is the Superintendent of Central Excise. He was examined on 9.12.2009. He speaks about the credible information being received 12 regarding the arrival of accused through flight possessing fake currency. He also states regarding the procedure conducted at customs clearance. The name as disclosed by the accused is Farooq. He accounts for each and every bundle of currency notes consisting of Rs.1,000/- and Rs.500/-. This witness was present at the time of crucial point of apprehension.
16. PW4-Ramakrishnan K, is the Intelligence Officer in Directorate of Revenue Intelligence, Mangalore. He identifies the accused. He is examined as circumstantial witness. He identifies the accused. He is also treated as witness who has seen the incident wherein, CWs 7 and 8 in the case have been called as panchas. This witness also tells the procedures followed at the time of apprehending the accused, the containers belonging to the accused and enquiry 13 regarding the ownership, possession and seizure of the said article.
17. PW5-Ravikumar is a Counter Officer of Immigration office. He states that he has seized the passport and the ticket.
18. PW6-Amruth G. Shetty is said to be working as Supervisor and she is also duty manager in ADB Tours and Travels and working in Airport as Air India Express Ground Handling Agent.
19. Thus PWs 1 to 3 and this witness speak about the offence stating that accused on the date of incident brought currency notes of Rs.14,97,000/- for illegal exchange of the currency thereby planned to cause damage to the Indian economy.
20. PW7-Venkappa Naik he deposes that he works as Inspector in Customs Office at Bajpe Airport for 14 checking the foreigners who come to India. He identifies the accused.
21. PW8-Jayasheela is the customs clearing agent and he was entrusted the duty of carrying currency notes for verification at Reserve Bank Bengaluru. He is the witness for Ex.P13. He also speaks the versions spoken by PWs1 and 2.
22. PW9-Neelaiah Pejavar is the contractor. He is the witness for Ex.P7. PW10-Jaya Sanjeeva Bangera, is a private taxi driver at Bajpe Airport. He is examined on 26.2.2010. His further evidence is, he was in taxi stand at Bajpe airport two years back parking his taxi. He is the witness for spot mahazar.
23. PW11 -Devaraj, is the Head Constable in COD. He deposes that he is deputed to Printing Press at Nasik along with the seized bundles of currency notes 15 and he has returned with the report along with letter as per Ex.P22 and 23.
24. PW12- Ramesh Kumar is PSI, Bajpe Police station. He deposes that, he has registered the case on 4.2.2008 at 7.00 p.m. as per Ex.P3 and conducted the investigation.
25. PW13-Naveen Kulkarni is the police Inspector, Tyagarajanagar Police station, Bangalore and he took over the further investigation, he explained the formalities of investigation and after completion of investigation filed the chargesheet against accused.
26. PW14-M.C.Bylappa is the Deputy General Manager and HOD Bank Note Press, Devas, Madhya Pradesh. He deposes for having examined the currency notes and giving report regarding the fake nature of currency notes.
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27. The learned trial Judge on the basis of the aforesaid oral and documentary evidence, acquitted the accused for the offence punishable under Section 120 read with Section 34 IPC and convicted him under section 489B and 489C IPC and sentenced him as mentioned above.
28. Learned counsel Smt.Haleema Ameen for Sri.S.Vishwajith Shetty for appellant would submit that absolutely there was no existence of ingredients of the offences for which the appellant is convicted. The prosecution has not established the commission of offence regarding identity of the accused, possession of currency notes by the accused and intention to use the fake currency as a genuine one. She would further submit that the learned trial Judge has not considered all the aspects before finding the accused guilty of the offences.
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29. Learned High Court Government Pleader would submit that in substance the supporting materials are placed before the trial court and a perusal would reflect the guilty mind of the accused.
30. In this case, the accused is charged with the offences punishable under Section 489A IPC. The offence relates to an act, wherein a person performs entire process of 'counterfeit currencies' or a 'bank note' he shall be punishable with imprisonment that may be extended upto ten years. Thus in order to find the person counterfeiting currency, for the said purpose 'bank note' includes 'promissory note' also.
31. Insofar as Section 489B is concerned, using currency notes as genuine though knowing fully well that they are counterfeited and exchange them as a genuine one shall be punishable with imprisonment 18 that may be extended upto ten years and shall also be liable to fine.
32. Next offence alleged is the offence punishable under Section 489C, which relates to possession of counterfeit currency notes. Thus when a person possess currency notes which is fake the offender knowing fully well regarding the fake nature of currency and uses and project it as genuine currency and is instrumental in inducting fake currency in the domain of circulation.
33. In the instant case, the first proceeding is said to have happened at Bajpe International Airport. The complainant, P. Vijayan, in his complaint states that there was a credible information that the accused person is coming in Air India, Express IX 382 flight was found in possession of contraband or prohibited items. Thus after deploying the officials at position, 19 the accused on his arrival was apprehended and he had two baggages, one is carton bag and another one is trolley bag. In which, there were milk powder containers. The accused though was held to be in possession of two baggages, denied his knowledge and when the currency notes were hidden in milk powder container, it was at that moment, he was asked to explain the possession of fake currency of Rs.14,97,000/-. When the currency notes were apprehended the accused Farooq is said to have stated that he is working as Salesman in Royal Diram Company.
34. Insofar as the nature of currency notes is held to be a fake one as per the chemical examination report, given by PW14 as per Ex.P23. PW14 is the witness and also Deputy General Manager and HOD, Bank Note Press, Devas, in Madhya Pradesh. This witness worked in various capacity and he has stated that on 20 14.3.2008 he received letters as per Exs.P21 and P26 to furnish opinion regarding Rs.500/- and Rs.1000/- denomination notes which are subjected to Crime No.18/2008. He was working as Deputy General Manager and he tells that after receiving 1798 currency notes of Rs.500/- and 598 currency notes of Rs.1,000/- he has given opinion as per Ex.P23, wherein he states that currency bearing register numbers as stated in the report were found to be fake.
35. His opinion and finding are at Exs.P23 and P28 and the fake nature of the currency note is clearly established.
36. However, there is no dispute regarding the nature of currency. They are held core resembling Indian currency of Rs.100 and 500 totally to the extent of Rs.14,97,00/-. It is nobody's claim that 21 currency notes are genuine and accused had every right to possess the same. On the other hand, though there is no dispute regarding the nature of currency being fake one, it is the claim of the prosecution that the accused was possessing currency notes on the date of incident and at the same time, the ownership over the bag that was locked and carried in the flight under the control of the accused was not disputed. The accused without batting an eye lid accepted that he is the owner of the baggage which he brought by himself.
37. Learned counsel Smt.Haleema Ameen appearing for appellant drew my attention to the aspect that, out of the two coupons or acknowledgment that was carried by accused consisted of Serial Nos. XH 145255 XH 145336.
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38. It is the claim of the prosecution that the circumstances suggest and prove that the accused alone was the person who was possessing the custody of the said currencies. The accused was carrying the bags when he was apprehended, he did admit that bags belong to him and when it was opened, currency notes hidden in milk powder container were found. The possession of currency notes were viewed, when the accused left Dubai Airport, and assigned the bags to the conveyor belt and obtained the endorsement and from thereon the luggage went to cargo section. Insofar as landing at Bajpe airport is concerned, the accused collected it from the conveyor belt and when he was carrying the same, he was caught. It was at that moment, he had ample opportunities to dispute or abandon the baggage, if he really did not possess them.
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39. The offence punishable under Section 489A, B and C relates to certain offence relating to fake currency. Basically in order to attract Section 489B and C, insofar as possession wherever defined in the matters relating to offence and liability refers to possession with conscious possession at the time of entering or getting a property into possession. Thus, it is necessary a person in order to be held liable for possessing or receiving the fake currency must have the knowledge and the idea directly or constructively what he possessed. The two elements of possession such of corpus possesionis and animus possidendi are to be taken into account.
40. Thus, a mere blind possession without its very knowledge or the possession for which a person is neither entitled or cautious of acquiring or does not refuse when possession enters his control or the constructive way of getting possession which cannot 24 be disputed later. In the instant case, the currency notes that were seized from the accused are not few. On the other hand they are in 28 bundles in the denomination of Rs.1,000/- and Rs.500/-. It is not quantity wherein the possession could be exchanged in a whisker.
41. To possess fake currency implies that a person gets into possession and he has desire over it and has the fore knowledge of the same or he was responsible for its existence and his possession was with an intention of using it as a medium of exchange. Initially the offence under Section 489A was also registered against the accused. However when final report was submitted Section 489A was deleted. Section 489A, B and C of IPC is as under:
"489A. Counterfeiting currency-
notes or bank-notes.- Whoever
counterfeits, or knowingly performs 25 any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
[489B. Using a genuine, forged or counterfeit currency-notes or bank-notes.- Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-
note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.] 26 489C. Possession of forged or counterfeit currency-notes or bank-notes.- Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.]
42. Thus, counterfeit currency comes into possession of a person who literally gets them printed with the help of several process and mechanism. Thus, he is the creator of the counterfeit currency or a person comes to possession of counterfeit currency deriving from others. Thus, possession may be original or derivative. In the case on hand the point is that 27 accused did not manufacture counterfeit currency. It is the case of the prosecution that he received possession of the counterfeit currency knowingly from others.
43. Again the sources from which person in possession receives or the buyer from whom he receives invariably shall be having knowledge about possession and its use.
44. The distinction between 489A and 489B is that first a person who is involved or connected to process of counterfeiting currency notes, as a desire to bring them to existence may be after procuring required paper, chemicals, instruments, expertise and then process of getting currency notes. Thus, if he prints or gets printed the fake notes into existence there is no point of he receiving from anybody because the picture of currency notes comes into existence after 28 process is complete and the person who has authored it holds it. The next way of possession is that he may have taken them or they might have been delivered to him or comes into possession on an assignment from the previous possessor.
45. In the instant case the charge against accused is not that he was involved in the process of manufacturing fake currency notes but he was in possession. Understandably, when he has not manufactured they comes into possession by receiving or getting them from another.
46. In this connection, there must be cogent materials and circumstances to hold that he had the knowledge of the counterfeiting currency and carrying it not accidentally but cautiously. Possession in its entire sense is analyzed very appropriately in Samond's jurisprudence.
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47. If a person were to enter into possession of a object which is static or a property enters the control of his possession might have forgotten, like he may be possessing it like a book that is lying in his library that was purchased years ago and the holder might not have knowledge of the mental element of animus possidendi.
48. But he has not lost possession and cannot say that he is out of possession or the object as out of his possession, the requirement of possession assumes importance only at the time of entering possession and it is not necessary that it should be lingering in his mind all the times to come around the clock.
49. Here it is not a single or isolated currency note in respect of which there are probability they sneak into regular currency. The 28 bundles of currency notes of 30 denomination `1,000/- and `500/- being kept in a bag
-MO-1 to MO-24 which is closed and locked neatly packed protected and transported from Dubai to Mangaluru during journey in air cargo luggage and collecting the same from the conveyor belt and thereafter holding it and carrying it and the movement was coming out of the airport but apprehended before he could exit, invariably establishes that it was neither by accident nor by surprise. The possession was entered into by the accused. On the other hand it places 10 out of 10 times that the fake currency of `14,97,000/- was in the custody of the accused person having received it from the sources exclusively known to him. More particularly he has not abandoned from claiming it nor was it taken from abandoned place and verified by him about it.
50. He carried the same after collecting the same from conveyor belt that was enclosed with boarding 31 pass that was exclusively issued to him and after being put in at Dubai that came out in Mangaluru.
51. Thus, accused at the time of entering the airport at Dubai till seizure in the airport at Mangaluru was in possession of the fake currency. Principles regarding `possession' in this connection is clearly mentioned by the Apex Court in the case of Umashanker Vs State of Chhattisgarh reported in (2001)9 SCC 642.
52. Insofar as nature of currency notes they were possessed by the accused in a totally strange manner and his gestures and mannerism were to get it totally out of sight of others.
53. The quantity was ascertained after they were counted and they resembled the Indian National currency in the denomination of `1,000/- and `500/-. They were examined by the competent authority and 32 report is available as per Exhibit -P-14 that they were totally fake and counterfeit currency and were not issued by Reserve Bank of India.
54. It is necessary to note that the accused had not abandoned the possession of the parcel or the bag before opening it when he was specifically asked about the same by men at work in the airport.
55. The stray answer given by the accused that it was given by some person at Dubai is no explanation let alone insufficient one.
56. It is clear that evidence of PW-1, complaint, mahazar establishes that accused had the knowledge of possession of fake currency notes that was bag containing the fake currency notes, M.O.1 to M.O.24 were unlocked in his presence and the currency notes 33 were taken out thereafter and was subject to mahazar- Exhibit P-13.
57. There are no circumstances to tell that accused had every chance of falling in accidentally or confused platform and he picked up a book that did not belong to him but similar to his bag and there is no such defence as well. The contextual reading of Section 489B and C is that well a person may come into possession of contra band or counterfeit currency and he had no knowledge of it.
58. Suppose he comes to know of it through any form he should abandon it by bringing it to the notice of the competent authority in the next possible moment of his coming to know.
59. But when he chooses to retain it for himself till he delivers to others for consideration or for such assignment he becomes answerable under Section 34 489B and C. Thus, it is necessary to remember whenever criminal statute uses the expression "Possession" it postulates constructive and exclusive possession. The process of carefully holding an object protecting it or keeping it away from the knowledge of others till the holder parts with in accordance with his plan, one should have intention to hold it, intention to hold results in protecting it and prevent its deprival or from getting misplaced.
60. On the other hand the guardian of the thing owned but for the interest of the guardian alone. The intention of fake currency note or object of fake currency note possession of fake currency note cannot be other than to destabilize the economy of the nation and unsettle the fiscal policy of the nation.
61. Here carrying from the airport of Dubai depositing into the luggage cabin in the flight, getting 35 down from the flight at Mangaluru airport, collecting baggage containing fake currency from conveyor belt establishes that accused held, protected and prevented others notice on the same till the same was apprehended by airport authorities at Mangaluru.
62. The nature and quantity are already mentioned. Further the counterfeit nature of the currency note is established through the report given by Reserve Bank of India- chemical examination-expert opinion at Exs.P23 and P-28 respectively. The purpose of holding counterfeit currency can be only one i.e., to use the not genuine currency and to represent before people that it is genuine.
63. The offence relating to counterfeit currency, possession, circumstances and related are nothing but acts of constructive terrorism against the fiscal structure and economy of the Nation.
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64. In the context and circumstances, the evidence of complainant in abundance that the accused carried counterfeit currency notes consisting 28 bundles of denomination of `1,000/- and `500/-. The context of the evidence confirm that they are counterfeited and was within the knowledge of the accused.
65. The circumstances of transporting, carrying of currency and its quantity, mannerism, gestures and answers by the accused, cogently establish that he had possession over it. The prosecution has beyond reasonable and shadow of doubt established the commission of offence punishable under Section 489 B and C of IPC.
66. In the overall circumstances, the learned trial Judge has found the accused guilty of offences punishable under Section 489B and 489C of IPC and sentenced him to undergo rigorous imprisonment for a 37 period of five years and to pay fine of `5,000/- for the offence punishable under Section 489B of IPC. In default of payment of fine to undergo simple imprisonment for a period of six months and to undergo rigorous imprisonment for a period of three years and to pay fine of `5,000/- for the offence punishable under Section 489C of IPC. In default of payment of fine to undergo simple imprisonment for a period of six months. Trial Judge ordered that both the sentences shall run concurrently.
67. On perusing the assigned reasons and the arrival of finding, I do not find any infirmity or lapse or arbitrariness in the finding of the learned trial Judge and there is no occasion to interfere with the same.
68. Learned counsel for appellant -Ms.Haleema Ameen would submit that accused is married and having two children and he has already undergone 38 judicial custody for a period of 2 years 11 months and three days.
69. In the context and overall circumstances of the case, I find sentence of rigorous imprisonment of five years imposed for the offence punishable under Section 489B deserves to be reduced to four years.
Appeal is partly allowed. Judgment dated 30.07.2010 passed in S.C.No.42/2008 by the II Additional Sessions Judge, D.K., Mangaluru, convicting the accused for the offence punishable under Section 489B and 489C of IPC is hereby confirmed. However, sentence is altered to reduce the imprisonment for the offence punishable under Section 489B from five years to four years and sentence is confirmed for the offence punishable under Section 489C of IPC.
Sd/-
JUDGE tsn*/SBN