Karnataka High Court
Frances Babu Desilva vs The State Of Karnataka on 17 February, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
Criminal Appeal No.3640/2012
Between:
Frances Babu Desilva
Age: 64 years,
Occ: Medicine Business,
R/o. Alnawar, Dist. Dharwad.
...Appellant
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP, Circuit Bench,
Gulbarga.
(Through Kolhar. P.S.)
... Respondent
(By Sri. Mallikarjun Sahukar, High Court
Government Pleader )
***
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973, praying to set aside
the judgment of conviction dated 21-08-2012 and order on
sentence dated 22-08-2012 passed in Sessions Case
No.83/2011 by the learned I Additional Sessions Judge,
Crl.A.No.3640/2012
2
Bijapur, convicting the accused/appellant for the offence
punishable under Sections 489(B) of IPC.
This Criminal Appeal coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
The appellant was the accused in the Court of the learned I Additional Sessions Judge, Bijapur (hereinafter for brevity referred to as "Trial Court") in Sessions Case No.83/2011, who was convicted by the judgment of conviction dated 21-08-2012 and order on sentence dated 22-08-2012 of the said Court for the offence punishable under Section 489B of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "IPC"). It is the said judgment of conviction and order on sentence, the accused has challenged in this appeal.
2. The summary of the case of the prosecution is that, on 07-05-2010 at about 11:00 a.m. in a shop Crl.A.No.3640/2012 3 by name Lucky Bar at Kolhar village, within the limits of the complainant Police Station, the accused was found possessing five counterfeit currency-notes of `1,000/- each face value and he was using them as genuine, knowing them to be the counterfeit currency notes. Thus, the accused is alleged to have committed the offence punishable under Section 489B of IPC.
3. The charge was framed against the accused for the alleged offence. Since the accused pleaded not guilty, in order to prove the alleged guilt against him, the prosecution examined in all seven witnesses from PW-1 to PW-7 and got marked documents from Exs.P-1 to P-6. The alleged five currency notes said to have been seized from the possession of the accused were marked at MO-1.
The accused neither examined any witness nor got marked any documents as exhibits from his side. Crl.A.No.3640/2012 4
4. The Trial Court, after hearing both side, by its impugned judgment of conviction dated 21-08-2012 and order on sentence dated 22-08-2012, convicted the accused for the alleged offence punishable under Section 489B of IPC and sentenced him to undergo simple imprisonment for five years and to pay fine of `2,500/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. It is against the said judgment of conviction and order on sentence, the accused has preferred this appeal.
5. The respondent - State is being represented by learned High Court Government Pleader.
6. The records from the Court below were called for and the same are placed before this Court.
7. Heard the arguments from both side and perused the materials placed before this Court Crl.A.No.3640/2012 5 including the memorandum of appeal and the records from the Court below.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. The points that arise for my consideration in this appeal are:-
"[I] Whether the prosecution has proved beyond reasonable doubt that on 07-05-2010 at about 11:00 a.m. at Kolhar Village in Lucky Bar, within the limits of complainant Police Station, the accused was found in possession of five counterfeit currency-notes of face value of `1,000/- each and that he was using them as genuine currency-notes knowing the same to be counterfeit notes and thereby committed the offence punishable under Section 489B of the Indian Penal Code, 1860?
[II] Whether the judgment of conviction and order on sentence under appeal deserves any interference at the hands of this Court?"Crl.A.No.3640/2012 6
10. In order to prove the alleged guilt of the accused, the prosecution examined seven witnesses. Among them PW-1 - Sri. Satteppa Bheemappa Malagonda is the complainant in this case, who was also incidentally the Police Sub-Inspector of the complainant Police Station. In his examination-in- chief, he deposed that on 07-05-2010, at about 10:30 a.m., while he was the Station House Officer, he received a telephone call from one Sri. Suresh Kallappa Parande, who was said to be the Manager of M/s. Lucky Bar. The said informant told the complainant over phone that, a customer who visited their Bar had tendered a currency note of `1,000/- denomination. Since the said note appeared to be a fake/counterfeit note, he had made that customer to wait for change, as such, the customer was waiting. Based on the said information, the said Police Sub- Inspector, joined by his staff, went to the said Bar and Crl.A.No.3640/2012 7 after identifying the alleged customer, ascertained his identity as one Sri.Frances Babu Desilva. Summoning two panchas, the complainant conducted the physical search of the said customer, wherein he noticed that he was in possession of five currency notes of `1,000/- denomination each with their serial numbers 2AQ 525280 to 2AQ 525284. The complainant after inspecting the notes confirmed that, they were fake currency-notes, as such, he conducted the seizure panchanama in the presence of panchas where under, he seized those notes and also a cell phone which was found in the possession of the said customer/accused. After returning to the Police Station, he lodged a complaint against the accused and handed over the seized currency notes and panchanama to the Station House Officer. The witness has identified the panchanama at Ex.P-1 and his complaint at Ex.P-2. Crl.A.No.3640/2012 8 He has also identified the five currency notes said to have been seized by him at MO-1.
11. PW-2 - Babu Gaibusab Hawaldar and PW-3
- Kiran Gajanan Kambar, who are said to be the panch witnesses for the alleged panchanama at Ex.P-1 have, in their examination-in-chief, deposed that, the complainant secured their presence for conducting panchanama in Lucky Bar at Kolhar. Accordingly, they were present when panchanama at Ex.P-1 was drawn, wherein by searching the accused in their presence, five counterfeit notes of `1,000/- denomination each were recovered from the possession of the accused. Both these witnesses have identified their signatures in the panchanama at Ex.P-1.
12. PW-4 - Suresh Kallappa Paranda, the Manager of Lucky Bar cum Restaurant at Kolhar has Crl.A.No.3640/2012 9 stated, corroborating the evidence of PW-1 that, on 07-05-2010, at about 10:00 a.m. the accused, after purchasing two knockout Beer bottles from him tendered a currency-note of `1,000/- denomination which he examined and suspected about its genuinety, as such, he asked the customer/accused to wait and informed the Police over telephone. Immediately thereafter, the Police came to his shop joined by panchas and other Police staff and conducted search of the accused wherein they noticed five similar notes in the possession of the accused. They drew a panchanama and seized them. The witness has stated that even a cell phone was also seized from the possession of the customer who identified himself as Frances Babu Desilva, a resident of Alnawar Village, Dharwad District. The witness has identified those notes at MO-1.
Crl.A.No.3640/201210
13. PW-5 - Lingaraj Appasaheb Yaragal, a Junior Engineer of PWD, Kalaghatagi, has stated that, based on the request made by the Investigating Officer to his Department, he visited the scene of offence as shown to him by the Police and prepared a sketch as per Ex.P-3 and submitted it to the Investigating Officer.
14. PW-6 - Narasimha Mohanrao Kalagi has stated that, while working as Assistant Sub-Inspector of Police in the respondent Police Station, on 07-05-2010, he registered a complaint given by PW-1 as per Ex.P-2 and also received a panchanama as per Ex.P-1 and five fake currency notes as per MO-1. He prepared an FIR as per Ex.P-4 and submitted the same to the Court through his staff. He also stated that the complainant also produced the customer/accused before him, whom he produced before the Magistrate on the same day. Crl.A.No.3640/2012 11
15. PW-7 -Sheelavant Sannabalappa Hosamani is the Investigating Officer in this case, who, in his evidence, has stated that, as a Circle Inspector of Police of Basavana Bagewadi in the year 2010, he took up further investigation in this matter from PW-6 and conducted the investigation in this matter by sending the seized counterfeit notes for their examination and opinion to the General Manager, Bharateeya Reserve Bank, Note Mudranalaya Private Limited, Mysore. He also stated that on 31-07-2010, he received an opinion/report from the said General Manager, as per Ex.P-5. He also received a sample seal from the General Manager, Bharateeya Reserve Bank Note Mudran (P) Limited, Mysore as per Ex.P-6. He also requested the PWD authorities to prepare a sketch of the scene of offence, which he collected as per Ex.P-3. He after conducting investigation, filed a charge sheet against the Crl.A.No.3640/2012 12 accused. The witness has identified the alleged fake notes at MO-1.
All these witnesses were cross-examined from the accused' side, wherein, the witnesses adhered to their original versions.
16. Learned counsel for the appellant in his brief argument submitted that, the prosecution has utterly failed to show that the accused had any knowledge that, the alleged currency notes at MO-1 which are said to have been in his possession were counterfeit/fake currency notes before his alleged attempt to transact with them. As such, the very basic ingredient of Section 489B of IPC has not been fulfilled.
In his support, he relied upon two judgments of the Hon'ble Apex Court; one, in the case of M. Mammutti Vs. State of Karnataka; 1980 Supreme Crl.A.No.3640/2012 13 Court Cases (Crime) 170 and another, in the case of Umashanker Vs. State of Chhattisgarh; 2002 Supreme Court Cases (Crime) 758.
Learned counsel for appellant also submitted that, the conduct of the accused is also relevant to be noticed in the instant case, who waited for more than an hour in the Bar till the Police arrived there. Had the accused got the knowledge that the currency notes were counterfeit/fake notes, he would not have waited in the Bar, but left the place before the arrival of the Police. This also shows that he was innocent about the genuinety of the notes.
Lastly, stating that the Police had kept the currency notes as it is with them, without even putting them in an envelope or a sealed cover while doing the seizure, as such, there is all the possibility of Crl.A.No.3640/2012 14 tampering with the seized article, the learned counsel for the appellant prayed for allowing the appeal.
17. Learned High Court Government Pleader appearing for respondent - State, submitted that all the witnesses have supported the case of the prosecution. Even the panchas also have supported the case of the prosecution which clearly go to establish that, the accused had the fake currency notes in his possession and thereby has committed the offence punishable under Section 489B of IPC.
Section 489B of IPC reads as below:-
"489B. Using as 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 Crl.A.No.3640/2012 15 with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
A reading of the said provision would go to show that, a person who is alleged to be in possession of counterfeit notes should have the knowledge or reason to believe that the currency notes or bank notes, which are said to be in his possession or with which he is transacting or using them as genuine, had the knowledge that they are not the genuine currency-notes or he should have reason to believe that the same to be forged or counterfeit notes.
18. In the instant case, PW-1 the complainant in his cross-examination has stated that superficially, the notes at MO-1 would not reveal that they are fake/counterfeit currency-notes, however, by their examination, it would be revealed that they are fake notes.
Crl.A.No.3640/201216
19. Similarly, PW-4 the Manager of the Bar also in his examination-in-chief itself has stated that, it is only after examination of the note tendered by the accused, he inferred that the said note was a counterfeit note. The said witness has further stated in his cross-examination that, by a bare look and superficially, the notes at MO-1 look like genuine notes. Thus, both the material witnesses, i.e. PW-1 and PW-4, by themselves, have stated that by a superficial look, the said notes do not appear to be fake or counterfeit notes.
20. The Hon'ble Apex Court in M. Mammutti's case (supra) with respect to Section 489B and 489C of IPC, was pleased to hold that, where it is not shown that the appellant had the knowledge or reason to believe that the notes were counterfeit, the conviction was not proper. It was further held in the same case that, presumption of knowledge from mere possession Crl.A.No.3640/2012 17 can only be drawn if the notes were apparently counterfeit.
21. In the instant case, as already observed above, even according to PW-1 - the complainant, who is also the Police Sub-Inspector and PW-4 the Manager of the Bar and Restaurant themselves have stated that the notes at MO-1 were not apparently seen to be counterfeit notes. According to them, it is only after examination of the note, they could notice that it was a fake note. Therefore, prima facie, the prosecution has failed to show that the notes at MO-1 were apparently showing themselves to be fake notes or counterfeit notes.
22. In Umashanker's case (supra), the Hon'ble Apex Court at paragraph 8 of the judgment was pleased to observe as below:-
" para.8. A perusal of the provisions, extracted above, shows that mens rea of Crl.A.No.3640/2012 18 offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit 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 counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above..."
23. In the instant case, though it is taken that through the prosecution, this witness has established that the accused was found in possession of five counterfeit notes at MO-1, still, none of the witnesses have anywhere whispered about the mens rea on the part of the accused. None of the witnesses anywhere have mentioned that the accused had the knowledge that the note which he was transacting or possessing Crl.A.No.3640/2012 19 was a fake or counterfeit note. In the absence of any whisper from any of the prosecution witnesses or any documents to show that the accused had the knowledge about the alleged fake notes, the evidence of PW-1 to PW-7, even if taken on their face value, still, lacks the basic necessary ingredients of Section 489B of IPC, which is the alleged 'knowledge' which the accused should possess or any reason to believe or any circumstance to show that the accused had any reason to believe that the currency-notes which he was in possession with were forged or counterfeit notes. As such, it lacks one of the necessary ingredients of Section 489B of IPC.
24. However, the Trial Court, merely because the prosecution witnesses, more particularly, PW-1 to PW-4 supported the case of the prosecution stating that the notes at MO-1 were recovered from the possession of the accused, and presuming the alleged Crl.A.No.3640/2012 20 mens rea on the part of the accused by itself concluded that the accused had committed the alleged offence. In the process it had ignored that the prosecution could not able to establish the alleged mens rea/knowledge behind the alleged commission of the crime.
25. Secondly, even according to the prosecution, the alleged notes were seized by drawing the seizure panchanama as per Ex.P-1 on 07-05-2010 at about 11:30 a.m. and the same were retained with the complainant Police Station till 21-06-2010. PW-7 - the Investigating Officer in his cross-examination has deposed to that effect. However, no reasons are forthcoming as to why for a period of about forty-five days, the complainant - Police kept the alleged seized counterfeit notes with them for no valid reasons. Further, none of the witnesses examined by the prosecution has stated Crl.A.No.3640/2012 21 about the notes at MO-1 being kept in a sealed cover at the time of its alleged seizure under Ex.P-1. None of the witnesses has given details as to how the notes were seized and how they were dealt with immediately after their alleged seizure. PW-1 in his cross-examination has admitted a suggestion as true that neither in his complaint nor in the panchanama he has mentioned that the notes after their seizure have been sealed by him in the presence of panchas. Similarly neither of the panch witnesses, i.e. PW-2 and PW-3 have stated that those notes were kept in any envelope or sealed in their presence, so that nobody could tamper with those alleged notes.
26. In addition to these, PW-4 - the Manager of the Bar, in his cross-examination has stated that the Police kept the notes in their pocket after their seizure and left the place. Thus, even according to him, the notes were not put in any cover or envelope or sealed Crl.A.No.3640/2012 22 in the spot, on the contrary, they were kept by Police in their pocket before leaving the place. Further, as observed above, PW-7 the Investigating Officer in his cross-examination has stated that, from 07-05-2010 which was the date of alleged seizure of notes till 21-06-2010, all the notes at MO-1 were in his possession, which means, they were in his office. Thus, according to none of the witnesses, the notes were kept in any envelope or cover or they were sealed. As such, the argument of the learned counsel for the appellant that, the alleged keeping of notes in their open condition, has given scope for their tampering or replacement, cannot be ignored. As such, though the serial numbers shown to have been mentioned on those notes have been identified by PW-1 and the panchas, but, none of their evidence could able to remove the doubt expressed by the learned counsel for the appellant regarding the Crl.A.No.3640/2012 23 possibility of replacement of a note by another. However, despite the alleged possibility of replacement of note/s, suffice it to say that as observed above, that the prosecution could not able to show that the accused had any mens rea in the form of knowledge or any reason to believe that the notes at MO-1 were fake. As such, the necessary ingredient of Section 489B has not been fulfilled.
27. In such a situation, merely because the accused is said to have been found in possession of some five pieces of fake/counterfeit currency-notes, by that itself, it cannot be held that, he had any knowledge or reason to believe that they were fake notes and with such knowledge or reasons to believe, he was using them as genuine.
28. Since the trial Court without making this distinction has simply embraced the evidence given by Crl.A.No.3640/2012 24 the prosecution witnesses without analysing them in their proper perspective which has led it to pronounce the judgment of conviction, since the said reasoning of the trial Court now proves to be an erroneous one, it has to be held that the prosecution has failed to prove the alleged guilt against the accused beyond all reasonable doubts and the accused deserves the benefit of doubt in his favour. Consequently, the impugned judgment of conviction and order on sentence under appeal deserve interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER [I] The appeal is allowed;
[II] The impugned judgment of conviction dated 21-08-2012 and order on sentence dated 22-08-2012 in Sessions Crl.A.No.3640/2012 25 Case No.83/2011, passed by the learned I Additional Sessions Judge at Bijapur, is set aside;
[III] The accused - appellant, i.e. Frances Babu Desilva, aged about 64 years, Resident of Alnawar Village,
Dharwad District, is hereby acquitted of the offence punishable under Section 489B of the Indian Penal Code, 1860;
[IV] The bail bond, if any, executed by the accused shall stand cancelled;
[V] The fine amount deposited by the accused, if any, be returned to him after the period of appeal and if no appeal is preferred.Crl.A.No.3640/2012 26
Registry to transmit a copy of this judgment along with the trial Court records to the trial Court, without delay.
Sd/-
JUDGE BMV*