Karnataka High Court
Sri B V Jagadish @ Bhovi Jagadish vs The State Of Karnataka on 6 November, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.1367/2006
BETWEEN:
SRI B V JAGADISH @ BHOVI JAGADISH
S/O HANUMANTHAPPA, 27 YEARS
MASON WORK
R/AT BINNIGOLA VILLAGE
HAGARIBOMMANAHALLI TLAUK
DAVANAGERE DISTRICT. ... APPELLANT
(BY SRI Y.S.SHIVAPRASAD, ADV.)
AND:
THE STATE OF KARNATAKA
BY K T J NAGAR P.S.
DAVANAGERE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 27.05.2006 PASSED BY
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II AT
DAVANAGERE IN S.C.NO.139/2005, CONVICTING THE
APPELLANT/ACCUSED FOR AN OFFENCE PUNISHABLE UNDER
SECTION 489C IPC & SENTENCING HIM TO UNDERGO R.I FOR A
PERIOD OF 5 YEARS & PAY FINE OF Rs.5,000/-, IN DEFAULT TO
UNDERGO S.I FOR A PERIOD OF ONE YEAR & ETC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant (hereinafter referred to as 'accused') was tried, convicted and sentenced for an offence punishable under section 489C IPC on the allegations that on 31.08.2005 at about 10 a.m. near Spoorthy Book Stall, situate in KSRTC Bus Stand at Davanagere, accused was found in possession of 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/- denomination) with knowledge and reasons to believe that they are counterfeit currency notes and with an intention to circulate them as genuine currency notes.
2. It is the case of prosecution that on 31.08.2005, PW5- Varadarajulu , PSI of KTJ Nagar Police Station, Davanagere on receipt of credible information, proceeded to KSRTC Bus Stand at Davanagere. The accused was standing near Spoorthy Book Stall situate in KSRTC Bus Stand at Davanagere. The accused was apprehended. On personal 3 search, accused was found in possession of 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/- denomination), knowing full well that they are counterfeit currency notes with intention to use the same as genuine currency notes. The accused was apprehended, counterfeit currency notes were recovered from his possession and he was brought to KTJ Nagar Police Station. The first information was registered against accused for an offence punishable under section 489C IPC. The Investigating Officer recorded statements of witnesses and sent counterfeit currency notes to PW2-A.K.Srivastava, Assistant General Manager, Reserve Bank of India, Mysore Branch. PW2 on examination of counterfeit currency notes opined that they were counterfeit currency notes and furnished his opinion. After investigation, final report was filed against accused for aforestated offence. 4
3. As already stated, the learned trial Judge has held accused guilty of an offence punishable under section 489C IPC and sentenced him to undergo rigorous imprisonment for a period of 5 years and pay fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of one year.
4. In this appeal against judgment of conviction, the following points would arise for determination:-
(1) Whether prosecution has proved that on 31.08.2005 at about 10 a.m., near Spoorthy Book Stall, situate in KSRTC Bus Stand at Davanagere, accused was found in possession of 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/-
denomination), knowing full well or reasonable to believe the same as counterfeit currency notes with intention to use them as genuine currency notes, thereby he has committed an offence punishable under section 489C IPC?
(2) Whether learned trial Judge has properly appreciated evidence on record?
5(3) Whether the impugned judgment calls for interference?
(4) To what order?'
5. The prosecution has relied on evidence of PW1 to PW6, documents as per Ex.P.1 to Ex.P.122 and material objects as per M.O.1 & M.O.2. The defence of accused is one of total denial.
6. PW1-Halappa was working as the Assistant Sub- Inspector in Central Crime Branch at Davanagere from 2004 to December 2005. PW1 has deposed; on 31.08.2005 at about 9.30 a.m., PSI of KTJ Nagar Police Station took PW1 along with Shivanandappa, Siddaveerappa, Anjaneya, Azarath Ali, Chandrashekar and other staff members and panch witnesses namely Subhash and Halesh to KSRTC Bus Stand at Davanagere by stating that he had received a credible information that a person with counterfeit currency notes with intention to circulate them as genuine currency 6 notes is near KSRTC bus stand at Davanagere; they reached KSRTC bus stand at 10 a.m.,; the source informant informed that accused is standing near Spoorthy Book Stall, situate in KSRTC Bus Stand at Davanagere; accused was that person; PW1 approached accused and asked him if he would give fake currency notes in exchange for genuine currency notes; accused removed 116 counterfeit currency notes, out of which 115 counterfeit currency notes were of Rs.100/- denomination and one counterfeit currency note was of Rs.1,000/- denomination; immediately other staff members and Sub-Inspector of Police (PW5) surrounded and apprehended accused; they examined currency notes and found that they were counterfeit currency notes; paper used for preparing counterfeit currency notes was thick; photograph of Mahatma Gandhi was different; security thread was not visible; numbers found on counterfeit currency notes were not distinct; PSI seized counterfeit currency notes in a white cloth cover and sealed them; 7 accused was found in possession of 23 genuine notes; they were also seized from his possession.
During cross-examination, PW1 has deposed; when he was in the office of DY.S.P., he received information from PW5 over phone; accused was standing alone near Spoorthy Book Stall, situate in KSRTC Bus Stand at Davanagere; PW1 approached accused; at that time, remaining police staff members and panch witnesses had taken positions and accused could not see them. PW1 has admitted that he had counted counterfeit currency notes; when PW1 requested the owner of SPoorthy Book Stall to attest mahazar, he refused to attest the mahazar; they did not ask the owner of nearby tea stall to attest the mahazar. PW1 has denied suggestion that accused was not in possession of counterfeit currency notes and he was falsely implicated.
7. PW2-A.K.Srivastava was working as the Assistant General Manager of Reserve Bank of India, Mysore Branch; PW2 had examined counterfeit currency notes, which had 8 been sent to him in the instant case. PW2 on examination of currency notes found that they were counterfeit currency notes; there were no security threads in currency notes; photograph of Mahatma Gandhi was different; there was no florescence on numbers found on currency notes; there was difference in colour combination; therefore, PW2 has opined that they are counterfeit currency notes. PW2 has furnished his opinion as per Ex.P.117.
During cross-examination, nothing has been elicited to discredit evidence of PW2. Thus, from the evidence of PW2, it is clear that notes seized from possession of accused are counterfeit currency notes.
8. PW3-Srinivas is the owner of Spoorthy Book Stall, situate in KSRTC Bus Stand at Davanagere. PW3, who is stated to have attested mahazar after accused was arrested and counterfeit currency notes were recovered from possession of accused has not supported the case of prosecution. Therefore, PW3 was treated as a hostile witness. 9
During cross-examination, PW3 has admitted that counterfeit currency notes were seized near KSRTC bus stand. PW3 has admitted that police seized mobile phone from accused. The evidence of PW3 is not of much avail to the case of prosecution.
9. PW4-Haleshappa, is a panch witness. PW4 has deposed; at the relevant time and place, accused was standing near Spoorthy Book Stall situate in KSRTC Bus Stand at Davanagere; ASI Halappa apprehended accused and searched his person and found accused was in possession of 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/- denomination); counterfeit currency notes were seized; they were kept in a white cloth cover; PSI prepared spot mahazar as per Ex.P.121; PW4 has identified counterfeit currency notes before court and he has deposed that photographs of 10 Mahatma Gandhi in counterfeit currency notes were blurred and notes were of uneven size.
During cross-examination, an unsuccessful attempt has been made by defence to prove that PW4 was a stock witness. PW4 has denied suggestion that one more person was standing with accused and that person ran away from that place.
10. On careful consideration of evidence of PW4, I find that evidence of this witness regarding apprehension and seizure of counterfeit currency notes does not suffer from any discrepancy. There is no evidence on record to hold that PW4 was interested in the success of case of prosecution or he was inimical to accused.
11. The learned counsel for accused referring to evidence of PW4 would submit that PW4 was a stock witness.
During cross-examination, PW4 has admitted that he had given evidence before Magistrate Court. However, PW4 11 has denied suggestion that he had attested mahazars in police station whenever he was called upon to do so. The admission of witness (PW4) that he had given evidence in Magistrate court is hardly sufficient to hold that he was a stock witness. Therefore, submission of learned counsel for accused that PW4 was a stock witness cannot be accepted.
12. PW5-Varadarajulu was working as the PSI of KTJ Nagar Police Station at Davanagere from March 2005; PW5 has deposed that on 31.08.2005 at about 9.30 a.m., when he was in police station, he received a credible information that one person in possession of counterfeit currency notes was standing near KSRTC Bus Stand at Davanagere with intention to circulate them as genuine currency notes; PW5 secured other staff members of Central Crime Branch namely ASI Shivanandappa, police constables Anjanappa, Siddaveerappa, Azarat Ali and Chandrashekar, who were working in the office of Dy.S.P., CCB Police at Davanagere; PW5 has also secured panch witnesses namely Subhan and 12 Halesh; thereafter, PW5 and other staff members went in a jeep to KSRTC Bus Stand at Davanagere; accused was standing near Spoorthy Book Stall and he was pointed out by credible informant; ASI Halappa (PW1) approached that person (accused) and questioned him whether he would exchange counterfeit currency notes for genuine currency notes; accused removed counterfeit currency notes from his possession; at that time, PW1 and other staff members surrounded and apprehended accused; PW5 took counterfeit currency notes and examined them; paper used for preparing counterfeit currency notes was thick; there was no security thread; there was no water mark; photograph of Mahatma Gandhi on currency notes was different; therefore, PW5 came to prima facie conclusion that they were counterfeit currency notes; accused was in possession of 116 counterfeit currency notes, out of which (115 counterfeit currency notes were of Rs.100/- denomination and one counterfeit currency note was of Rs.1,000/- denomination); accused was in possession of one mobile phone; PW5 seized 13 counterfeit currency notes and mobile phone from possession of accused. PW5 has identified counterfeit currency notes before court. PW5 has stated that some of the counterfeit currency notes were bearing same serial numbers. PW5 has deposed; counterfeit currency notes marked as Ex.P.35 to Ex.P.41 were bearing same serial numbers; similarly, counterfeit currency notes marked as Ex.P.49 & Ex.P.50, Ex.P.51 to Ex.P.56, Ex.P.57 & Ex.P.58, Ex.P.59 to Ex.P.64, Ex.P.65 to Ex.P.67, Ex.P.68 to Ex.P.72, Ex.P.73 to Ex.P.77, Ex.P.78 to Ex.P.81, Ex.P.82 to Ex.P.94, Ex.P.95 to Ex.P.101, Ex.P.102 to Ex.P.104, Ex.P.105 & Ex.P.106, Ex.P.109 to Ex.P.112, Ex.P.113 to Ex.P.116 were bearing same serial numbers; PW5 arrested accused and brought him to police station along with seizure mahazar marked as Ex.P.121; PW5 registered suo motu first information in Crime No.175/2005 and submitted report as per Ex.P.122 and handed over further investigation to Police Inspector.
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During cross-examination, PW5 has given details of arrival of raiding party to KSRTC bus stand. PW5 has denied suggestion that one person standing on the side of accused ran away from that place and he could not be arrested. PW5 has been extensively cross-examined regarding seizure of counterfeit currency notes from possession of accused. The evidence of PW5 does not reveal that he had grievance against accused to falsely implicate him. The evidence of PW5 is supported by seizure of counterfeit currency notes. Therefore, it is difficult to conceive that PW5 had planted counterfeit currency notes to foist a case against accused, who was not known to PW5.
13. PW6-G.S.Jagadeesh the then Police Inspector of Davanagere Central Circle, has given evidence relating to further investigation of case.
14. It is true, some of the independent witnesses, who had attested mahazar have not supported the case of 15 prosecution. The law is fairly well settled that evidence of Investigating Officer regarding seizure of incriminating articles cannot be discarded merely because witnesses, who had attested seizure mahazar regarding seizure of incriminating articles have not supported the case of prosecution.
15. The learned counsel for accused would submit that Investigating Officer had not come out with truth.
16. It is elicited from evidence of prosecution witnesses that one person who was standing nearby accused ran away from that place. The Investigating Officer had deliberately left out that person during investigation.
It is not possible for the court to speculate whether a person had ran away from that place and what more information/evidence could have been collected if that person had been arrested. Even if it is assumed that one person, who was standing near accused had ran away from 16 that place, that circumstance cannot be a ground to discredit evidence adduced by prosecution.
17. The learned counsel for accused, relying on judgments reported in AIR 1979 SC 1705 (in the case of M.Mammutti Vs. State of Karnataka); 1990 Crl.L.J. 215 (in the case of Madan Lal Sarma Vs. The State) and 2001 Crl.L.J. 4696 (in the case of Umashanker Vs. State of Chhattisgarh) would submit that mere possession of forged note does not shift burden on accused to prove innocence. The knowledge or reason to believe that note was forged has to be proved. Merely on the basis of evidence of witnesses that they were able to make out that currency note alleged to have been in possession of accused were fake, mens rea cannot be presumed.
In the case on hand, evidence of PW1-Halappa, PW4- Haleshappa and PW5-Varadarajulu is sufficient to hold that counterfeit currency notes seized from possession of accused is sufficient to come to conclusion that they are counterfeit 17 currency notes. The above witnesses have deposed that counterfeit currency notes seized from possession of accused were of uneven size; paper used for preparation of counterfeit currency notes was thick; there was no security thread; there was no water mark; photograph of Mahatma Gandhi was totally different from photograph found on genuine currency notes and most of counterfeit currency notes were bearing same serial numbers; counterfeit currency notes were not even folded; they were fresh and textured; they were new currency notes. Added to this, evidence of PW2-A.K.Srivastava, Assistant General Manager of Reserve Bank of India, Mysore Branch would reveal that mere look at currency notes would disclose that they are fake currency notes. Therefore, the submission of learned counsel for accused that unless it is established by prosecution that mere look at currency notes, it is sufficient to come to conclusion that they are counterfeit currency notes, the accused cannot be convicted for an offence punishable under section 489C IPC, cannot be accepted. 18
18. In a decision reported in AIR 1979 SC 1705 (in the case of M.Mammutti Vs. State of Karnataka), the Supreme Court has held that failure of prosecution to put any specific question to appellant in order to find out whether accused knew that the notes were of such a nature. No such evidence has been led by prosecution to prove the nature of notes also.
In the case on hand, prosecution has led abundant evidence that mere glance of notes would lead to conclusion that they were counterfeit currency notes.
19. The decision reported in 1990 Crl.L.J. 215 (in the case of Madan Lal Sarma Vs. The State) was rendered on facts obtained therein.
20. In the aforestated judgment, it is held that counterfeit currency note must be of such type which in normal course of dealings, any person of average intelligence would consider from mere look to be forged one.
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In the case on hand, I have discussed supra, distinct features borne by counterfeit currency notes, which would make any person of average intelligence at a glance to come to conclusion they are forged currency notes.
21. In a decision reported in 2001 Crl.L.J. 4696 (in the case of Umashanker Vs. State of Chhattisgarh), the Supreme Court has held that prosecution should prove essential mens rea for an offence punishable under section 489C IPC i.e., accused must be knowing or having reasons to believe that currency notes or bank notes are forged or counterfeit.
In the case on hand, accused is a resident of Hagaribommanahalli Taluk. The accused was found in possession of 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/- denomination) near Spoorthy Book Stall situate in KSRTC Bus Stand at Davanagere at 10.30 a.m., on 31.08.2005. The accused has not offered explanation for his presence near Spoorthy Book 20 Stall, situate in KSRTC Bus Stand at Davanagere. The accused has not offered any explanation for possessing 116 counterfeit currency notes (115 counterfeit currency notes of Rs.100/- denomination and one counterfeit currency note of Rs.1,000/- denomination), total value of which is a sum of Rs.12,500/-. It is not a case where counterfeit currency notes had been mixed up with genuine currency notes. The accused had come across counterfeit currency notes in normal course of transactions. The accused was found in possession of 116 counterfeit currency notes and they were brand new currency notes, by texture, they were fresh and they were not even folded. The accused has not stated immediately after apprehension or during investigation, he had innocently come in possession of counterfeit currency notes. Therefore, it is hardly possible to hold that accused was an innocent possessor of counterfeit currency notes. In the circumstances, the learned trial Judge was justified in holding that accused is guilty of an offence punishable under section 489C IPC.
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22. Sri Y.S.Shivaprasad, learned counsel for accused would submit that accused is a first time offender; accused does not bear criminal antecedents; an offence under section 489C IPC is punishable with imprisonment for a term, which may extend to seven years, or with fine, or with both. Accused has chances to reform himself as he is a law abiding citizen, therefore, sentence of rigorous imprisonment of 5 years imposed by trial court may be reduced.
23. The learned State Public Prosecutor would submit that offence is committed against the nation. The offences of this nature would destroy economic fabric of the nation. Therefore, no leniency is called for in the matter of sentence.
24. The evidence on record does not disclose that accused is a potential offender. The accused has chances to reform himself. The accused was aged about 26 years at the time of incident. Having regard to these circumstances, sentence of rigorous imprisonment for 5 years imposed on accused by 22 trial court is reduced to sentence of rigorous imprisonment for 4 years and the fine imposed by trial court is confirmed.
25. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned judgment of conviction of accused for an offence punishable under section 489C IPC is confirmed. However, the sentence is modified. The accused is sentenced to undergo rigorous imprisonment for a period of 4 years and pay fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of one year. The period of detention undergone by accused during trial and during pendency of this appeal is given set off as provided under section 428 Cr.P.C. The rest of the impugned judgment is confirmed.
Sd/-
JUDGE SNN.