Madras High Court
K. Duraipandian (Age 23/2010) vs State By The Inspector Of Police on 28 August, 2018
Author: R. Pongiappan
Bench: R. Pongiappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 31.07.2018
JUDGMENT PRONOUNCED ON : 28.08.2018
CORAM:
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
Criminal Appeal No.405 of 2010
1. K. Duraipandian (Age 23/2010)
S/o Karuppaiha Devar Appellant / Accused No.2
Vs
State by the Inspector of Police
CBCID Counterfiet Wing
Chennai
(Crime No. 1166 of 1998) Respondent / Complainant
Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure code, to set aside the Judgment and conviction dated 11.02.2010 by the learned Additional District and Sessions Judge, Chennai in SC No.133 of 2009 and acquit the appellant.
For Appellant : Mr.L. Baskaran
For Respondent : Mr. T.P. Savitha
Government Advocate (Criminal Side)
JUDGMENT
The appellant is the 3rd accused in SC No.133 of 2009 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Chennai. Along with two other accused, this appellant stood charged for the offence under Section 120 B, 489B and 489C of IPC. By a Judgment dated 11.02.2010, he has been convicted and sentenced to undergo 6 months rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo 2 weeks simple imprisonment under Section 120B IPC. Further, he has been convicted under Section 489 B and 489 C and sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 2 weeks simple imprisonment for each offence. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2) The Case of the prosecution in brief is as follows:-
Based on the secret information given by the informant, on 14.08.1998 at about 7.00 pm, PW 1 Maruthupandian, the then Inspector of Police, Triplicane along with PW 2 Jayamani and PW 3 Mohammed Rafiq, made a search in Room Nos.304 and 204 Blue Nile Mansion, situated in Barbar Agan street and recovered counterfiet currency notes from the accused as per the following details A1 Narayanaraja - 30 Nos of 100 Rupees counterfiet currency notes A2 Duraipandian - 30 Nos of 100 Rupees counterfiet currency notes
- 27 Nos of 100 Rupees counterfiet currency notes
- 25 Dollar notes of Central Bank of Iran
- 1 Dollar Note of USA Country A3 Arulkanth - 23 Nos of 100 Rupees counterfiet currency notes. Further during the course of trial proceedings the recovered material objects are marked in the trial Court in the following series.
M.O.1 - 27 Nos of 8CV577272 series counterfiet notes M.O.2 - 3 Nos of 8CV577272 series counterfiet notes M.O.3 (s) - 7 Nos of 8CV577277 series counterfiet notes, 8 Nos of 8CV577278 series counterfiet notes, 8 Nos of 8CV577279 series counterfiet notes totally 23 nos of 100 Rupees counterfiet currency notes M.O.4 - 8CV577257 series 100 Rupees counterfiet notes M.O.5 (s) - 6 Nos of 8CV577267 series counterfiet notes M.O.6 (s) - 6 Nos of 8CV577274 series counterfiet notes M.O.7 (s) - 4 Nos of 8CV577275 series counterfiet notes M.O.8 (s) - 5 Nos of 8CV577276 series counterfiet notes M.O.9 (s) - 7 Nos of 8CV577277 series 100 Rupees counterfiet notes M.O.10 (s) - 8 Nos of 8CV577278 series 100 Rupees counterfiet notes M.O.11 (s) - 8 Nos of 8CV577279 series 100 Rupees counterfiet notes The Seizure Mahazar prepared by PW 1 in respect to the recovery of counterfiet currency notes is Ex.P.3. After recovery of the same, through the Special Report, he produced the accused as well as the counterfiet notes before PW 5 Subramanian.
3) On 14.08.1998, at about 22.30 hours, PW 5 the then Inspector of Police, Triplicane, on receipt of special report given by PW 1, registered a case in Cr.No.1166 of 1998 under Section 489 C. Ex.P.8 is the copy of the printed First Information Report. Along with the accused, the confession statement and Seizure Mahazar prepared by PW 1 in the presence of Ravi and Chinnaiah have also been received by PW 5. Thereafter, he made arrangements for sending the accused to the judicial custody. After recording the statements from the witnesses, he altered the Sections of Law as 489 B and 489 C. Ex.P.9 is the Alteration Report. Further he submitted the recovered counterfiet currency notes before the Court through Form 95. He submitted an application to the Magistrate for sending the counterfiet currency notes for chemical examination. After receiving the Chemical Examination Report, he came to know that the currency notes recovered from the appellant as well as from the other accused are of counterfiet notes. Thereby, he came to the conclusion that the accused committed the offences under Sections 120 B, 489B and 489C of IPC and filed a final Report before the Magistrate Court.
4) Based on the above materials, the trial Court framed charges against the accused and the accused denied the same. In order to prove the case on the side of the prosecution, as many as 6 witnesses were examined as PW 1 to PW 6 and 12 documents were marked as Ex.P.1 to Ex.P.12. Besides, 11 material objects.
5) Out of the above said witnesses, PW 1, the then sub inspector of Police, Triplicane Police Station, who recovered the counterfiet currency notes from the accused has stated in his evidence that on 14.08.1998, on information, he went over to the Blue Nile Mansion and after securing all the accused, he recovered 27 Nos of counterfiet 100 rupees notes, 25 dollar pertaining to the Central Bank of Iran from the appellant through the Seizure Mahazar. Subsequently, along with the special report, he handed over the accused and counterfiet currency notes before PW 5.
6) PW 2 who is also an eyewitness to the occurrence has stated in his evidence that on 14.08.1998 at about 19.00 hours, he went over to the Blue Nile Mansion along with PW 1. Further, he has stated that during the time of search in Room Nos.304 and 204, he found the present accused and 2 other accused having in possession of counterfiet currency notes. The said notes have been recovered by PW 1 through Seizure Mahazar, after recording the confession statement from the accused.
7) PW 3 Rafiq who is the owner of Blue Nile mansion has stated in his evidence that on the date of occurrence, PW 1 and PW 2 came to his lodge and conducting the search in Room No.304 and 204. Further, he has stated during the time of search, the accused found in possession of counterfiet notes alongwith dollar pertaining to Iran country. He further stated that he has signed as a witness in the Mahazar prepared by PW 1.
8) PW 4 is the then Assistant in Additional Chief Metropolitan Magistrate Court has stated in her evidence that on 13.11.2000, based on the request letter given by PW 5, the counterfiet notes recovered in this case had sent to Nasik for chemical analysis under Ex.P.6. Further, she stated that after receiving the Report, she informed the same to the Investigating officer. PW 5 and PW 6 are the police officers had stated about the registration of the case, details of investigation, sending counterfiet currency notes for chemical examination and about the filing of Final Report.
9) The learned trial Judge, with reference to the incriminating evidence adduced by the prosecution, questioned the accused under section 313 Cr.P.C. and for which, he pleaded not guilty. However he did not chose to examine any witnesses, nor to mark any documents on his side.
10) The learned trial Judge on perusal of the materials placed and considering the arguments advanced on both sides, convicted and sentenced the appellant and other accused as stated supra and challenging the same, the present appeal has been filed.
11) I have heard Mr.L. Baskaran, learned Counsel for the appellant, Ms. T. Savitha, learned Government Advocate (Criminal Side) for the respondent and perused the records carefully.
12) The learned Counsel for the appellant would contend that there are lot of contradictions in the evidence of PW 1 to PW 3. Their evidence did not prove the recovery of counterfiet notes from the accused. He would further contend that since the factum of recovery is not proved by the prosecution, holding that the accused committed the offences under Sections 120 B, 498B and 498 C of IPC is not legally justifiable one. Accordingly, he prayed to allow this appeal
13) Per contra, the learned Additional Public Prosecutor would contend that PW 1 to PW 3 are the eyewitnesses to the occurrence as well as they are the witnesses to the search and reccovery made by PW 1. Their evidence clearly proves that the accused and the other accused are in possession of counterfiet currency notes. Accordingly, the prosecution proves his case beyond all reasonable doubt. Therefore, there is no need to interfere with the conviction and sentence passed by the trial Court.
14) I have considered the rival submissions made on either side.
15) Admittedly, PW 1 to PW 3 are the witnesses to the search as well as to the recovery of counterfiet currency notes from all the accused including the appellant herein. PW 1 and PW 2 in their evidence has clearly stated about the search made in Room Nos.304 and 204 in Blue Nile Mansion, situated in Barbar Agan street and about the recovery of counterfiet currency notes. In this case, the evidence given by PW 1 and PW 2 is duly corroborated through the evidence of PW 3, who is the owner of the said Mansion. Moreover, they clearly identified the accused in the trial court and about the recovery of material objects. Further, PW 3 has given evidence in respect to the Seizure Mahazar prepared by PW 1 and about his signature present in the said document. Further he stated that the Register maintained for booking of rooms has been handed over to the police. Eventhough the said document has not been produced by the prosecution in the trial court, on go through the entire cross examination of PW 3 shows that the accused has not disputed the booking of room in Blue Nile Mansion.
16) Secondly, on go through the Ex.P.12, the report received from the Currency Note Press, Nasik clearly shows that the recovered counterfiet currency notes are not genuine one. In this aspect also, the evidence given by PW 4 and PW 5 are very clear and cogent.
17) In the said circumstances, with regard to the conviction under Section 120B, the prosecution, must prove the following three ingredients
(i)an agreement between two or more persons;
(ii) the agreement should be to do or cause to be done some illegal act or some act which is not illegal, by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must further prove;
(iii) That some act besides the agreement was doen by or more of the parties in pursuance of it In this regard, on go through the evidence given by PW 1 to PW 3, they have stated that the accused gave confession that they came to Madras for using the counterfiet notes as genuine one. Further, in the confession statement, it was stated that the said notes were received in Tirupur Railway station. Except the said evidence, there is no iota in the evidence given by PW 1 to PW 3 for proving that prior to the occurrence, all the accused are having agreemnt for committing the offence. No evidence is available to show the meeting of minds of the accused before the occurrence. Further more, the evidence of PW 1 and PW 2 discloses that the present accused is stayed independently in the separate room. The said circumstances reflects and creates a suspicion, whether this accused has come to Chennai alongwith the other accused or not. So without any evidence to show the agreement among all the accused, conviting them under Section 120 B of IPC is unsustainable. Hence, this court set aside the conviction and sentence awarded to the appellant in respect to the offence under Section 120 B of IPC.
18) Thereafter, before deciding the appeal, it is necessary to bear in mind that the offence committed by the accused is not an ordinary one. The object of the legislature in enacting these provisions is not only to protect the economy of the country, but also to provide adequate protection to currency notes and bank notes. In the said circumstances, in respect to the conviction awarded under Section 489 C, the learned Counsel for the appellant is contended that the prosecution has not proved the transaction made by the accused by using the counterfiet currency notes. Further it is contended that, convicting the accused under Section 489C is legally not correct. He relied on the Judgment of Kerala High Court in 2000 CRI.L.J.3748 observed as follows I perused the MO.1 series currency notes. The learned Counsel for the appellant also submitted that these ntoes are only fancy notes. On a mere look at the notes it can be seen that these are fancy notes. In all the Indian currency notes what is noted is Reserve Bank of India. But in these ntoes what is noted is Reserve Baby of India. Therefore, it is clear from the notes itself that it is not a forged or counterfiet currency. Where the currency notes in possession of the accused are found to be of such a nature that a mere look at them would not convince any person of average intelligence that they are counterfiet notes, the presumption that the notes in his possession were counterfiet cannot be drawn. There is also nothing to show that he had any intention to use the same as genuine. The prosecution could not bring out any transaction of the accused with any other person. Thus, the prosecution failed to establish that the accused was intending to use the same as genuine.
19) In the above said case, the accused is in possession of 50 forged currency notes. Now, in the case on hand, as far as the case of the prosecution is concerned, the accused is in possession of 27 nos of currency notes. So comparatively, the number of currency notes possessed by the accused in both the cases approximately the same one. In the said situation, the evidence let in by the prosecution side shows possession of counterfiet currency notes and about the recovery from the appellant. Apart fromt that no evidence is put forth by the prosecution to prove that the accused having the intention to use the counterfiet currency notes as genuine. Particularly, the prosecution has failed to establish that the accused used the counterfiet currency notes as genuine. So in the said circumstances, in order to bring home Section 489 C of IPC, the prosecution must prove the following three ingredients
(i) possession by accused of any forged or counterfiet currency note or bank note
(ii) knowledge (or reason to believe) to the accused that it was forged or counterfiet; and
(iii) intention of the accused to use the same as genuine or that it may be used as genuine
20) Now on go through the case of the prosecution, the prosecution evidences did not establish that the accused having intention to use the counterfiet currency notes as genuine. Accordingly, the conviction and sentence awarded to the accused under Section 489C is not sustainable and I am of the opinion that the said conviction is liable to be set aside.
21) Lastly, for the offence under Section 489B, the following ingredients must be proved by the prosecution
(i)selling, buying or receiving from any person or otherwise trafficking in or using as genuine
(ii) any forged or counterfiet currency note or bank note;
(iii) knowing (or having reason to believe) that such note was forged or counterfiet Now, all the evidence put forth by the prosecution has clearly proved that the accused is possessed with counterfiet currency notes. Except that there is no evidence for selling the same to the other accused. Further there is no evidence for buying or receiving from any person. In this regard, the evidence given by PW 1 and PW 2 established that the accused gave confession that those notes are received from one person in Tirupur. However, no doubt that the confession statement given before the police officer is not admissible in the evidence. In this regard, reliance is placed in the Judgment of our Honourable Apex Court (2001) 9 SCC 642, in which our Honourable Apex court in Paragraph 7 and 8 observed as follows.
7.Sections 489 A to 489 E deal with various economic offences in respect of forged or counterfiet currency notes or banknotes. The object of the legislature in enacting these provisions is not only to pretect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary possessors or users.
8.A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489 B and 489 C is knowing or having reason to believe the currency notes or banknotes are forged or counterfiet. Without the aforementioned mensrea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfiet currency notes or banknotes, is not enough to constitute offence under Section 489B IPC. So also possessing or even intending to use any forged or counterfiet currency notes or banknotes is not sufficient to make out a case under Section 489 C in the absence of the mensrea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW and PW 7 that they were able to make out that the currency note alleged to have been given to PW 4 was fake, presumed such a mens rea. On the date of the incident the appellant was said to be an eighteen year old student. On the facts of this case the presumption drawn by the trial court is not warranted under Section 4 of the Evidence. Further it is alos not shown that any specific question with regard to the currency notes being fake or counterfiet was put to appellant in his examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to hold that the charges framed under Sections 489 B and 489 C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489 B and 489 C IPC and acquit him of the said charges So, complying the principles of our Honourable Apex Court, in this case also, there is no evidence is brought on record to find out the mens rea of the accused. Moreover, the value of the currency possessed by the accused is very meagre and not substantiated one. In the said circumstances, the trial Court without considering the evidence given by PW 1 to PW 6 in a perspective manner and convicted the accused. Therefore, I am of the view that the conviction and sentence awarded by the trial Court is set aside. Accordingly, the appeal is allowed and the conviction and sentence imposed upon the appellant by the learned Additional District and Sessions Judge, Chennai in SC No.133 of 2009 dated 11.02.2010 is hereby set aside and the appellant is acquitted. Bail bonds executed, if any, shall stand terminated. Fine amount paid, if any, is directed to be refunded to the appellant.
28.08.2018 Speaking Order / Non-Speaking Order Index : yes/no Internet : yes/no vrn To
1. The Additional District and Sessions Judge, Chennai
2. The Inspector of Police Government of Tamil Nadu CBCID Counterfiet Wing Chennai
3. The Additional Public Prosecutor High Court Madras
4. The Section Officer V.R. Section Madras High Court Chennai.
R. PONGIAPPAN.J vrn Pre-delivery Judgment in Criminal Appeal No.405 of 2010 Date: 28.08.2018