Karnataka High Court
Basavaraj @ Raju S/O Surendra Naik Ors vs The State Of Karnataka on 21 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.3690 OF 2011
C/W
CRIMINAL APPEAL NO.3684 OF 2011 &
CRIMINAL APPEAL NO.3687 OF 2011
IN CRL.A.NO.3690/2011
BETWEEN:-
1. BASAVARAJ @ RAJU
S/O SURENDRA NAIK
AGE: 53 YEARS, OCC: BUSINESS
R/O MANTUR VILLAGE
TQ. MUDHOL, DIST. BAGALKOT
2. MANJUNATH S/O GANAPATI UDUPI
AGE: 38 YEARS, OCC: BUSINESS
R/O KATESHWAR VILLAGE
TQ. KUNDAPUR, DIST. UDUPI
3. NAGARAJ S/O GANAPATI UDUPI
AGE: 38 YEARS, OCC: BUSINESS
R/O BANGALORE
... APPELLANTS
(BY SRI R.S. LAGALI, ADVOCATE)
AND:-
THE STATE OF KARNATAKA
REP. BY THE PSI, GANDHI CHOWK PS
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
2
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 21.10.2011 AND ORDER OF SENTENCE DATED
02.11.2011 PASSED BY THE FAST TRACK COURT-I/II, BIJAPUR
IN SESSIONS CASE NO.19/2003 AND ACQUIT THE
APPELLANTS.
IN CRL.A.NO.3684/2011
BETWEEN:-
KOMAL D/O DAMAJI SHAH
AGE: 35 YEARS, OCC: HOUSEHOLD WORK
R/O STATION ROAD, BIJAPUR
... APPELLANT
(BY SRI SRINATH G. KULKARNI, ADVOCATE)
AND:-
THE STATE OF KARNATAKA
REP. BY THE PSI, GANDHI CHOWK PS
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 21.10.2011 AND ORDER OF SENTENCE DATED
02.11.2011 PASSED BY THE FAST TRACK COURT-I/II, BIJAPUR
IN SESSIONS CASE NO.19/2003 AND ACQUIT THE APPELLANT.
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IN CRL.A.NO.3687/2011
BETWEEN:-
1. ABDUL GAFOOR S/O RAJESAB CHIGARI
AGE: 63 YEARS, R/O INDI
TQ. INDI, DIST. BIJAPUR
2. PARAPPA S/O TIMMANNA BIRADAR
AGE: 60 YEARS, R/O BELAGLI
TQ. MUDHOL, DIST. BAGALKOT
... APPELLANTS
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:-
THE STATE OF KARNATAKA
REP. BY ADDL. SPP
CIRCUIT BENCH, GULBARGA
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 21.10.2011 AND ORDER OF SENTENCE
DATED 02.11.2011 PASSED BY THE FAST TRACK COURT-I/II,
BIJAPUR IN SESSIONS CASE NO.19/2003 AND ACQUIT THE
APPELLANTS.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.12.2018, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
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COMMON JUDGMENT
These appeals are filed under Section 374(2) of Cr.P.C., seeking to set aside the judgment of Conviction dated 21.10.2011 and order of sentence dated 02.11.2011 passed by the Fast Tack Court-I/II, Bijapur in Sessions Case No.19/2003 convicting the appellants for the offences punishable under Sections 489(B) and 489(C) of IPC.
2. The case of the prosecution is that, on 14.05.2001, PW.11, Modinpasha Kudachi, HC 406 of the DSP Office, Bijapur received a credible information that counterfeit currency notes were being circulated at Navaras Wine Shop. He divulged this information to PW.1, the PSI of Gandhi Chowk Police Station and both of them with two panchas and HC 569 raided Navaras Wine Shop and seized two currency notes from accused No.1. A panchnama was drawn up as per Ex.P2. PW.1 lodged a complaint vide Ex.P1 and based on the said complaint, Crime No.154/2001 was registered against accused No.1.
3. In the course of investigation on 28.08.2001, PW.14-the Investigating Officer deputed PW.6 and PW.12, two 5 constables attached to his police station, to keep watch over the movements of accused No.10. On 31.08.2001, they found accused No.2 moving suspiciously and he was produced before the Investigating Officer-PW.14 and on personal search, PW.14 found 12 currency notes of the denomination of Rs.100/- each in the possession of accused No.2 and the same were seized under a Mahazar Ex.P3. Based on the information of PW.2, accused Nos.3 to 9 were arrested on different dates and at the time of their arrest, on their personal search, the Investigating Officer recovered 71 currency notes of the denomination of Rs.100/- each and 27 currency notes of the denomination of Rs.50/- each from the possession of accused No.3. From the possession of accused No.4, six currency notes of the denomination of Rs.100/- each were recovered under a Mahazar
- Ex.P5. From the Farm House of accused No.5, eight currency notes of the denomination of Rs.100/- each and five currency notes of the denomination of Rs.50/- each were recovered under a Mahazar Ex.P7. From the possession of accused No.7, seven currency notes of the denomination of Rs.50/- each were recovered under a Mahazar - Ex.P6. From the possession of accused No.8, one currency note of the denomination of 6 Rs.100/- and five currency notes of the denomination of Rs.50/- each were recovered under a Mahazar - Ex.P8. Accused No.11 surrendered before the Udupi Court on 11.12.2001 and was taken in to custody.
4. The charge sheet was laid against 13 accused persons alleging commission of offences punishable under Sections 489(B) and 489(C) of IPC. During trial accused Nos.1 and 10 having died, the case against them was dismissed as abated. Accused Nos.2, 6, 9, 12 and 13 remained absconding and hence, the case against them was split up. Accused Nos.3, 4, 5, 7, 8 and 11 faced trial.
5. In order to bring home the guilt of accused Nos.3, 4, 5, 7, 8 and 11, the prosecution has examined 16 witnesses. PW.1 was the complainant namely, the PSI of Gandhi Chowk Police Station. PWs.2, 3, 4, 7, 9 and 15 are the independent pancha witnesses to the seizure mahazars Exs.P.2 to P.9. Amongst them, PWs.2, 3, 4, 7, 9 and 15 failed to support the prosecution and were treated as hostile witnesses. PWs.6 and 12 were the police constable who assisted the raiding team and apprehended the above accused. PW.8 was the Manager of 7 Navarasa wine from where accused No.1 was arrested. PW.10 was the police constable who carried the seized currency notes to Mysore Lab. PW.11 was the head constable who received the information at the earliest instance and accompanied PW.1 during the raid. PW.13 was the official of RBI who examined the counterfeit currency notes and issued his opinion vide Exs.P.10 and P.11 to the effect that the seized currency notes were counterfeit notes. PW.14 was the Investigating Officer, who conducted substantial investigation and PW.16 was the subsequent Investigating Officer, who laid the charge sheet against the accused.
6. Through the above witnesses, the prosecution got marked 17 documents. The seized currency notes were exhibited as MOs.1 to 24. Considering these evidences, by the impugned judgment, the learned Presiding Officer, Fast Track Court I/II, Vijayapur found accused Nos.3, 4, 5, 7, 8 and 11 guilty of the offences punishable under Section 489(B) and 489(C) of IPC and accordingly sentenced them to rigorous imprisonment for 10 years and a fine of Rs.10,000/- each. 8
7. Assailing the impugned judgment of conviction and order of sentence, accused Nos.5, 8 and 11 have preferred Criminal Appeal No.3690/2011, accused No.3 has preferred Criminal Appeal No.3684/2011 and accused Nos.4 and 7 have preferred Criminal Appeal No.3687/2011.
8. The learned counsel appearing for the appellants have raised three fold contentions.
(i) Firstly, it is contended that PW.1 who lodged the complaint has himself conducted substantial investigation, which has vitiated the entire proceedings. In support of this argument, the learned counsel have placed reliance on the recent decision of the Hon'ble Supreme Court of India in Mohan Lal vs. The State of Punjab in Criminal Appeal No.1880/2011, disposed of on 16.08.2018, wherein it is held that :-
"In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appears to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in mind of an accused and 9 not more fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion."
(ii) Secondly, it is contended that the trial Court has committed serious error in convicting the accused by placing the burden of proof on the accused. In support of this contention, the learned counsel for the appellants have referred to paragraph 43 of the impugned judgment, which reads as under:-
"It is pertinent to note that the accused are required to explain in terms of Section 106 of Evidence Act that why they were possessing those 10 counterfeited currency notes. In the absence of any such explanation the possession of counterfeited currency notes within their knowledge, it may safely be inferred that they were possessing the fake currency knowing them to be so with the intention of using the same as genuine "
It is the submission of the learned counsel that the prosecution has failed to discharge the initial burden cast on it. The prosecution has failed to prove that the appellants were in conscious possession of the currency notes with the knowledge and reason to believe that they were fake currency notes. Under the said circumstance, it was not proper on the part of the trial court to invoke Section 106 of the Evidence Act. Placing reliance on the decision of this Court in Mahendrasingh Khetsing Rao vs. The State of Karnataka represented by Sub- Urban Police Station, Hubli, 2015 (1) KCCR 494, the learned counsels have emphasized that in order to make out the ingredients of the offence under Section 489 (B) of IPC, the prosecution firstly has to establish that the said notes were found in possession of the accused. Secondly, the accused had knowledge and belief that the said currency notes were fake currency notes. The burden of establishing this fact is primarily 11 on the prosecution. Unless, the prosecution establishes that the accused had such knowledge or belief that the notes found in their possession were fake currency notes, the ingredients of Section 489 IPC should held to have not been proved by the prosecution. On the same point, the decision in Umashanker vs. State of Chhattisgarh, 2002 SCC (Cri) 758 is cited with reference to Paragraph Nos. 7 and 8.
(iii) Thirdly, it is contended that subsequent to the impugned judgment, accused Nos.6 and 9 were apprehended and were tried before the IV Additional District and Sessions Judge, Vijayapur in SC No.56/2012 and by judgment dated 24.06.2016, accused Nos.6 and 9 have been acquitted. The State has not preferred any appeal against the said judgment. The said accused were tried on the similar accusations and hence, on the ground of parity, the petitioners herein also are liable to be acquitted. On this point, the learned counsel have placed reliance on the decision of this Court in Sundarvelu Kalay Nadar vs. The Sate of Karnataka, in Criminal Appeal No.100268/2015 dated 05.01.2018 and the decision of the Division Bench of this Court in the State of Karnataka vs. K.C. 12 Narasegowda, ILR 2005 Karnataka 1822, wherein it is held that:-
"Where on evaluation of a case, no conviction of any accused is possible, the benefit of doubt extended to the co-accused similarly situated is also available for the no-appealing accused."
In the said case, it is further held that :-
"as the entire material evidence of the prosecution is one of and the same as against all the accused including the non-appealing accused 1 who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as is extended to his co-accused in the light of the law laid down by the Hon'ble Supreme Court in the case of Suresh Chaudhary and ors. case."
9. Refuting the above contentions, the learned High Court Government Pleader however, would contend that there is no infirmity or illegality either in the investigation conducted by the Agency or in the prosecution of the accused. With regard to the defects in investigation, the learned High Court Government Pleader would submit that the complainant has not conducted any part of the investigation. The circumstances of 13 the case indicate that based on credible information, a surprise raid was conducted. The police are well within their power to apprehend the accused involved in cognizable case and therefore, there is no illegality whatsoever in the apprehension of accused No.1 and the subsequent registration of the case. He further points out that investigation was taken over by PW.14 and the statements of the material witnesses have been recorded by PW.14 and the subsequent investigating officer and therefore, the first contention urged by the appellants is factually incorrect.
10. He further submits that in view of the inter-state ramification of the offence, the further investigation was conducted by the COD, which has culminated in filing an additional charge sheet. Therefore, the prosecution of the appellants cannot be faulted on that score.
Lastly, he contends that the recoveries have been duly proved by examining the police personnel who accompanied the raiding team. The police personnel who participated in the seizures have stood by the case of the prosecution and their testimonies are not shaken in the cross-examination. The 14 evidence of the police witnesses also deserves same credence as independent witnesses. The trial Court therefore, has rightly placed reliance on the evidence of PWs.6 and 12 and the evidence of investigating officer which convincingly establish the seizure of counterfeit currency notes from the possession of the appellants. The said currency notes were examined by PW.13 and it is proved that all the currency notes seized from the possession of the accused were counterfeit currency notes. The accused were found in possession of bulk notes for which the accused/appellants could not offer any satisfactory explanation and therefore, the trial Court has rightly imputed knowledge to the appellants, thus establishing the ingredients of the offences punishable under Sections 489(B) and 489(C) of IPC and hence, he prays for dismissal of the appeals.
11. In the light of the above argument, the points that emerge for consideration are:-
1. Whether the trial in question is vitiated on account of the investigation being conducted by the very same officer who registered the F.I.R?15
2. Whether the Trial Court was justified in drawing inference of guilt of the accused persons based on Section 106 of the Indian Evidence Act?
3. Whether the petitioners are entitled for the benefits of the acquittal judgement passed in favour of co-accused Nos.6 and 9 ?
Point No.1:-
12. The contention that the officer who registered the FIR was not competent to investigate into the allegations is no more res integra in view of the authoritative pronouncement of the Hon'ble Apex Court in the case of STATE Rep. by Inspector Of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu vs. V.JAYAPAUL reported in AIR 2004 SC 2684, wherein at para 6, it is held that:-
"Though there is no such statutory bar the premise on which the High Court quashed the proceedings was that the investigation by the same officer who "lodged" the F.I.R would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the 16 moment the competent Police Officer, on the basis of information received, makes out a F.I.R incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigation officer.The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court that whenever a Police Officer proceeds to investigate after registering the F.I.R on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the F.I.R in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for 17 no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack."
13. It is not the contention of the accused that PW-1 was not competent to register the case or to investigate the offence. It is also not the case of the defence that the registration of the F.I.R was in violation of any mandatory requirements of any statute or that the Trial Court had no jurisdiction to try the accused. If so, unless the accused are able to demonstrate that the raid conducted by PW-1 prior to the registration of the F.I.R has resulted in any serious prejudice or injustice, the accused cannot take advantage of the course adopted by PW-1.
14. The question whether the registration of F.I.R cannot precede the investigation or that the F.I.R could be registered midst of the process of investigation came up for consideration before the coordinate Bench of this High Court in Criminal Petition No.15941 of 2012 c/w Criminal Petition No.15852 of 2012 disposed on 5th February, 2012 (Sri 18 GIRISHCHANDRA vs. STATE BY LOKAYUKTHA POLICE, YADGIR).
15. In the said case, the Investigating Officer on getting credible information that in the Sub-Registrar's office, the Sub- Registrar was demanding and accepting bribe from the public who were presenting their documents for registration, without registering the said information, proceeded to the Sub- Registrar's office. Upon search of the Sub-Registrar and other officials, he did not find any money in their possession, but from other persons who were in the office and who were not the officials, substantial sums were found in possession. The Investigating Officer drew up the Mahazar and seized the money from the said persons and thereafter arrested the Sub-Registrar and the official staff and came back to the police station and registered an F.I.R. In the background of the said facts, this Court has held that whether registration of F.I.R should precede the investigation or that F.I.R could be registered in the midst of process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the 19 presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the F.I.R. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment and thereafter registration of F.I.R would be an ideal investigation procedure.
16. In the instant case, no doubt PW.1 appears to have failed to follow the procedure prescribed under Section 154 of Cr.P.C, apparently for the reason that the nature of the information of the offence required him to get into action before the offenders could escape and the incriminating evidence was concealed. Of course, I do not approve the procedure followed by PW.1 especially in view of the law laid down by the Constitution Bench of the Supreme Court of India in the case of LALITHA KUMARI VS. GOVERNMENT OF UTTAR PRADESH AND OTHERS reported in (2014) 2 SCC 1 wherein considering the legislative intent of section 154 of Cr.P.C., the Hon'ble Supreme Court has laid down that any information disclosing of a cognizable offence is laid before the officer in charge of a Police Station, satisfying the requirements of section 154(1) of 20 the Code, such Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say to register the case on the basis of such information. In the instant case, PW.1 having acted in accordance with section 157 of Cr.P.C. and no prejudice or failure of justice having been made out and moreover, there being no breach of any mandatory requirements of law or jurisdiction in registering the offence or in conducting the investigation, in my view, the irregularities pointed out by the defence do not militate against the case of prosecution in any manner nor do they vitiate the trial and the consequent conviction of the accused. Resultantly, the contention urged in this regard is rejected. Point No.2 :-
17. One common feature in the case set up by the prosecution is that all the accused were apprehended at different places on different dates based on the voluntary statements of the co-accused. It is the case of the prosecution that during personal search, the accused were found in possession of the counterfeit currency notes of various denominations. This fact is established through the evidence of 21 the prosecution witnesses and also through the contents of the seizure mahazars prepared contemporaneously, as such there is no dispute with regard to the fact that counterfeit currency notes produced before the Court namely, MOs-1 to 24 were seized from the possession of the respective accused persons. By the said evidence, the prosecution has convincingly established that all the accused except accused No.11 were found in possession of the counterfeit currency notes MOs.1 to
24. But the question that falls for consideration is whether mere possession of counterfeit notes is sufficient to make out the offences charged against accused under Section 489-B and C of the Indian Penal Code? The said provision read thus:-
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 2[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.22
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."
18. From the above provisions, it is clear that mere possession of the currency notes does not lead to the inference that the accused were involved in the use and circulation of the counterfeit currency notes. Unless, there is clear and definite evidence to suggest that the counterfeit notes were bearing such distinct features that by mere look at them would convince any person of ordinary prudence that it was counterfeit currency note, no presumption could be drawn that the accused knew that the notes in their possession were counterfeit notes.
Appreciating similar contention, the Hon'ble Supreme Court in M. Mammutti vs. State of Karnataka reported in 1980 SCC (Cri) 170 has observed thus:-
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"If the notes were of such nature that mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also."
19. In the instant case also the prosecution has not let in any specific evidence to the effect that the seized currency notes by their mere appearance were counterfeit notes. As already stated above, all the independent witnesses examined by the prosecution have failed to support the prosecution. The police witnesses examined by the prosecution namely PW-1, PW-11 and PW-14 have merely stated about the seizure of the currency notes from the possession of the respective accused at the time of their arrest. Their evidence does not indicate that the accused knew that the currency notes seized from them were counterfeit notes or that the witnesses themselves were of the view that the said notes were counterfeit notes. Such evidence is lacking.
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20. However, insofar as accused No.3 - Komal Shah and accused No.5 - Raju @ Basavaraj are concerned, in addition to the oral testimony of the above witnesses, the prosecution has produced the voluntary statements given by these accused at Exs.P13 and P14 leading to the recovery of the currency notes.
21. In this regard, PW.14 - the Investigating Officer has stated that on 31.08.2001, PC 788 and PC 860 produced Niyaz Ahmed Choudhari (accused No.2) before him and on his personal search, he seized MOs.2, 3, 4 and 23 and recorded his voluntary statement at Ex.P12. Based on his voluntary statement, accused No.4 led PW.14 and the panchas to Riyax Computer Center run by accused No.3 Komal Shah. PW.14 recorded the voluntary statement of accused No.3 - Komal Shah and pursuant thereto, she produced 71 currency notes of Rs.100/- denomination and 27 currency notes of Rs.50/- denomination and the same were seized under a panchanama - Ex.P4. The voluntary statement of accused No.3 is marked as Ex.P13.
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22. Further, this witness has deposed that another accused namely, Raju @ Basavaraj (accused No.5) was produced before him and on interrogation, he recorded his voluntary statement as per Ex.P14 and in terms thereof, accused No.5 led PW.14 and the panchas to his Farmhouse and produced 8 counterfeit currency notes of Rs.100/- denomination and 5 currency notes of Rs.50/- denomination. Hence, they seized MOs.15 to 18 and drew up the mahazar as per Ex.P7.
23. As the prosecution has established the fact that the currency notes were seized from accused Nos.3 and 5, based on their voluntary statements, the knowledge of the fact that the said currency notes were kept by the respective accused Nos.3 and 5 in their possession with the knowledge that the same were counterfeit notes could be safely deduced. To that extent, the finding of the Trial Court that the prosecution has established the case insofar as accused Nos.3 and 5 deserves to be accepted. This evidence establishes the fact that accused Nos.3 and 5 were in conscious possession of the fake currency 26 notes, thereby clearly making out a case under Section 489(C) of IPC.
24. However, insofar as the other accused i.e., accused Nos.4, 7, 8 and 11 are concerned, in my view, the evidence collected by the prosecution is not sufficient to hold that accused Nos.4, 7, 8 and 11 were in conscious possession of the currency notes with the knowledge that the said currency notes were counterfeit notes. When the prosecution has failed to prove the basic fact that the said accused persons were in possession of the currency notes with the knowledge that the same were counterfeit, the Trial Court could not have imputed knowledge to the said accused by recourse to Section 106 of the Indian Evidence Act. No doubt, the evidence produced by the prosecution indicates that large bulk of currency notes were seized from the possession of the accused but that by itself does not lead to the inference that the knowledge of the fact that the said currency notes were counterfeit was exclusively within the knowledge of the accused. Section 106 of the Evidence Act would come into play only when the fact, which is sought to be proved is exclusively within the knowledge of the accused. 27
25. The material on record would clearly indicate that the currency notes were seized from accused Nos.4, 7 and 8 during their personal search. Therefore, in the absence of any evidence to show that at the time of search and seizure the said accused were in the exclusive knowledge of the fact that the said currency notes were counterfeit, in my view, the Trial Court could not have convicted accused Nos.4, 7 and 8 with the aid of Section 106 of the Evidence Act. Thus, on reconsideration of the entire material on record, I am of the view that the prosecution has established the guilt of accused Nos.3 and 5 only for the offence punishable under Section 489(C) of IPC and it has failed to prove the guilt of these accused for the offence punishable under Section 489(B) of IPC. Likewise the prosecution has failed to prove the guilt of accused Nos.4, 7, 8 and 11 for the offences punishable under Sections 489(B) and 489(C) of IPC. Therefore, accused Nos.4, 7, 8 and 11 are liable to be acquitted of the said offences.
POINT NO.3:-
26. Another ground urged by the learned counsel for the appellants is that the co-accused namely, accused Nos.6 and 9 28 were later tried and acquitted by the Court of IV Additional District and Sessions Judge, Vijayapura, in S.C.No.56/2012 vide judgment dated 24.06.2016 and the benefit of the said order is required to be extended to the appellants/accused Nos.3, 4, 5, 7, 8 and 11.
27. Relying on the decision of this Court in the case of State of Karnataka Vs. K.C. Narasegowda reported in ILR 2005 Karnataka 1822, it is contended that the benefit of the said order should be extended to the appellants herein on the ground of parity.
28. No doubt, in the said case, it is held that when the entire material evidence of the prosecution is one and the same as against all the accused including the non-appealing accused who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as is extended to the co-accused. But, in the instant case, in my view, the said principle cannot be applied to the present set of facts for the reason that the acquittal judgment in respect of accused Nos.6 and 9 was passed subsequent to the impugned judgment, that 29 too when the conviction awarded against co-accused was pending in appeal before this Court.
29. Undisputedly, accused Nos.6 and 9 were apprehended and tried subsequent to the rendering of the impugned judgment. Under the said circumstance, judicial proprietary required the prosecution to bring this fact to the notice of the Court dealing with the case of accused Nos.6 and 9 and the Court ought to have noted that on the very same set of material, accused Nos.3, 4, 5, 7, 8 and 11 have suffered conviction and the matter was seized by this Court. Therefore, by applying the principle of parity, the Trial Court ought to have convicted accused Nos.6 and 9. It is unreasonable to contend that the principle of parity operates only in acquittal judgement and not in conviction judgement. There cannot be parity only in acquittal. Therefore, I am unable to accept the contention of the learned counsel for the appellants that on the ground of parity with accused Nos. 6 and 9, the appellants before this Court are entitled to be acquitted.
30. Thus, on consideration of all the above facts and circumstances, the appeal filed on behalf of accused No.3 - 30 Komal Shah in Criminal Appeal No.3684/2011 and the appeal filed on behalf of accused No.5-Raju @ Basavaraj in Criminal Appeal No.3690/2011 are partly allowed. Accused No.3-Komal Shah and accused No.5-Raju @ Basavaraj are convicted for the offence punishable under Section 489(C) of IPC and they are acquitted of the charge under Section 489(B) of IPC.
Having regard to the circumstances in which the alleged offence has taken place, the sentence of imprisonment for 7 years awarded by the Trial Court on accused Nos.3 and 5 for the offence punishable under Section 489(C) of IPC is excessive and disproportionate to the gravity of the charge proved against the above accused. Accused Nos.3 and 5 are the first offenders and there is no history of criminal antecedents against them. Hence, in modification of the sentence awarded by the Trial Court for the offence punishable under Section 489(C) of IPC, accused No.3-Komal Shah and accused No.5-Raju @ Basavaraj are sentenced to undergo simple imprisonment for a period of two years and a fine of Rs.50,000/- each. In default to pay the fine amount, each of them shall undergo further simple imprisonment for a period of six months.
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The appeal filed on behalf of accused No.4-Abdul Gafoor and accused No.7-Parappa in Criminal Appeal No.3687/2011 and the appeal filed on behalf of accused No.8-Manjunath and accused No.11-Nagaraj in Criminal Appeal No.3690/2011 are allowed. Consequently, the conviction of accused Nos.4, 7, 8 and 11 for the offences punishable under Sections 489(B) and 489(C) of IPC is set aside and accused Nos.7, 8, 9 and 11 are acquitted of the said offences. The bail bonds of accused Nos.4, 7, 8 and 11 stand cancelled and their sureties are discharged.
Sd/-
JUDGE LG/RSP