Kerala High Court
P.Unnikrishnan vs State Of Kerala on 11 September, 2024
Criminal Appeal No.18 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.A NO. 18 OF 2016
CRIME NO.143/2005 OF IRIKKUR POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 23.12.2015 IN SC NO.282 OF
2008 OF ADDITIONAL SESSIONS JUDGE - II, THALASSERY.
APPELLANTS/ACCUSED NO.2 & 3:
1 P.UNNIKRISHNAN,
AGED 46 YEARS,
S/O. NARAYANA MARAR,
PUTHIYEDATH HOUSE,
MAYYIL (NOW RESIDING AT KATTAMPALLI,
PARAPPIL VAYAL LAKSHAM VEEDU COLONY).
2 VIJITH KUMAR,
AGED 39 YEARS,
S/O. RAJAN, ARAMBAN HOUSE,
KATTAMBALLI,
PARAPPIL VAYAL LAKSHAMVEEDU COLONY
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
SRI.V.VINAY
Criminal Appeal No.18 of 2016
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2024:KER:68900
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031
(CRIME NO. 532/CR/SIII/2005 OF CBCID KOZHIKODE).
BY ADV.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
02/09/2024, THE COURT ON 11/09/2024 DELIVERED THE FOLLOWING:
Criminal Appeal No.18 of 2016
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2024:KER:68900
C.S.SUDHA, J.
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Criminal Appeal No.18 of 2016
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Dated this the 11th day of September 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused nos.2 and 3 in S.C.No.282/2008 on the file of the Court of Session, Thalassery, challenges the conviction entered and sentence passed against them for the offence punishable under Section 489C read with Section 34 IPC.
2. The prosecution case is that on 15/09/2005, the accused persons, six in number, entered into a criminal conspiracy to counterfeit currency notes in the denomination of ₹100/- and ₹50/-. On 15/10/2005 and on two subsequent dates thereafter, accused nos.1, 2 and 6 in furtherance of their common intention, counterfeited currency notes of the aforesaid denomination, which was done in the building owned by CW7 Abdul Kareem. On 31/10/2005 accused nos.1 to 4 Criminal Appeal No.18 of 2016 4 2024:KER:68900 were found in possession of counterfeit currency notes for the purpose of distribution in an autorickshaw bearing registration no.KL13K/3631 at a place by name Kararambu in Kuttiattoor amsom. Accused nos.1, 2 and 6 were also found in possession of printing machine and other apparatus for counterfeiting currency notes. Thus, all the accused persons were alleged to have committed the offences punishable under Section 120B IPC as well as the offences punishable under Sections 489A, 489C and 489D read with Section 34 IPC.
3. Crime no.143/2005, Irikkur police station was registered by PW1, the then Sub Inspector of police, Irikkur police station. The case was investigated by PW20, the then Sub Inspector, Irikkur and thereafter it was transferred to the Crime Branch. PW21 and PW22, the detective inspectors, CBCID who thereafter conducted the investigation and submitted the final report before the jurisdictional Magistrate.
4. On appearance of all the accused persons, the jurisdictional magistrate after complying with all the formalities contemplated under Section 207 Cr.P.C., committed the case to the Criminal Appeal No.18 of 2016 5 2024:KER:68900 Court of Session, Thalassery. The case was taken on file as S.C.No.282/2008 and later on made over to the Additional Sessions Judge-II, Thalassery for trial and disposal. Thereafter, the first accused absconded, and so the case against him was split up. On 27/11/2015 a charge under Sections 120B, 489A, 489C and 489D read with Section 34 IPC was framed, read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PWs1 to 22 were examined and Exs.P1 to P27 and MO.1 series to MO.5 series were got marked in support of the case. After the close of the prosecution evidence, the accused nos.2 to 6 were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied those circumstances and maintained their innocence.
6. As the trial Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C, they were asked to enter on their defence and adduce evidence in support thereof. DW1 was examined Criminal Appeal No.18 of 2016 6 2024:KER:68900 and Exts.D1 and D2 were marked on behalf of the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found accused nos.2 and 3 guilty for the offence punishable under Section 489C read with Section 34 IPC and hence sentenced them to undergo rigorous imprisonment for a period of five years each and to a fine of ₹ 50,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one year each. Set off under Section 428 has also been granted. Accused nos.4, 5 and 6 have been acquitted under Section 235(1) Cr.P.C. for all the offences charged against them. Aggrieved, accused nos.2 and 3 have come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against accused nos.2 and 3/appellants by the trial court are sustainable or not.
9. Heard both sides.
10. The question to be considered in this appeal is whether the evidence on record substantiates the prosecution case that accused Criminal Appeal No.18 of 2016 7 2024:KER:68900 nos.2 and 3/appellants have committed the offence punishable under Section 489C IPC. As per Section 489C, 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, is liable to be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. To prove the case of the prosecution, the testimony of PWs 1 to 3 is relied on.
10.1. PW1, the then Sub Inspector of Police, Irikkur, deposed that on 31/10/2005 while he along with his party were on law and order duty, he received secret information that some persons travelling in autorickshaw bearing registration no.KL13K/3631 were in possession of counterfeit currency notes near the toddy shop at Kuttiattoor Kararambu. He along with his team proceeded to the spot and when he reached there, he saw the 4th accused sitting in the driver's seat and accused nos. 1, 2 and 3, sitting in the passenger's seat. The body search of the accused persons was conducted and on searching Criminal Appeal No.18 of 2016 8 2024:KER:68900 st the body of the 1 accused 26 currency notes of the denomination of ₹50/- covered with paper and tied with rubber band was seen inside the pocket of the shirt worn by him. On examining the currency notes, it was found that 10 currency notes were having the serial number 2CN198772; 9 currency notes, the serial number 2KH674415 and 7 currency notes, the serial number 9MF913959. Body search of the 2 nd accused revealed that he was in possession of 24 currency notes of the denomination of ₹50/- covered with white paper and tied with rubber band in his shirt pocket. On verification it was found that 5 currency notes were having serial number 2CN198772; 10 currency notes, with serial number 2KH674415 and 9 currency notes with serial number 9MF913959. The body search of the 3rd accused revealed that he had 25 currency notes of the denomination of ₹50/- which was also found covered in paper and tied with a rubber band kept inside his pant pocket. On verification it was found that 7 currency notes had the serial number 2CN198772; 10 currency notes the serial number 2KH674415 and 8 currency notes the serial number 9MF913959. The security thread and water mark were absent in the currency notes. As Criminal Appeal No.18 of 2016 9 2024:KER:68900 the currency notes were found to be counterfeit, accused nos.1 to 4 were arrested as per Exts.P1 and P3 arrest memo and inspection memo respectively. The counterfeit currency notes; the papers used for covering them and the rubber bands used for tying them were seized as per Ext.P2 seizure mahazar. The accused persons were brought to the police station and Ext.P4 FIR registered. MO.1 series are the currency notes and MO.2 series the papers and rubber bands. I am not referring to the rest of the testimony of PW1, as it relates to the other offences charged against the accused persons, for which they have been acquitted.
10.2. PW2, an attestor to Ext.P2 seizure mahazar, testified in support of the prosecution case. According to him, on 31/10/2005, at about 07:00 p.m., an autorickshaw with four persons stopped near the place at Kuttiattoor, Kararambu. Immediately thereafter the police arrived at the spot. He saw the policemen questioning the four persons seen in the autorickshaw and conducted the body search of the persons. Three persons were sitting in the passenger's seat were brought out of the autorickshaw and he saw the police searching their bodies and Criminal Appeal No.18 of 2016 10 2024:KER:68900 seizing currency notes. He also supported the prosecution case that 24 currency notes in the denomination of ₹50; 25 currency notes of ₹50 and 26 currency notes of ₹50 covered in paper and tied with rubber bands had been found in possession of the three persons sitting in the passenger's seat of the autorickshaw and that they had been seized by the police. He signed Ext.P2 mahazar, which was prepared relating to the seizure of the currency notes. PW2 also deposed that the person who was sitting in the driver's seat was the 4 th accused and that the persons sitting in the passenger's seat are the remaining three accused persons. He identified the accused persons in the dock. However, he deposed that he does not know the name of the accused persons.
10.3. PW3, another attestor to Ext.P2 seizure mahazar, also supported the prosecution case of seizure of counterfeit currency notes. He also deposed that apart from the driver of the autorickshaw, there were three persons in the autorickshaw. He had seen the sub-inspector and party searching the body of the persons found in the passenger's seat of the vehicle and the seizure of currency notes which were covered with white paper and tied with rubber bands. The police Criminal Appeal No.18 of 2016 11 2024:KER:68900 verified the currency notes and found them to be counterfeit. He admitted that he is an attestor to Ext.P2 mahazar, prepared when the currency notes were seized. But PW3 deposed that, he cannot identify the persons whom he had seen on the said day.
11. It was submitted by the learned counsel for the accused persons/appellants, relying on the dictum in Rafeeque v. Sub Inspector of Police, 2020 (3) KLJ 711, that Exts.P1 and P3 arrest memo and inspection memo contain the crime number of the case. According to the prosecution, Exts.P1 and P3 were prepared at the scene of occurrence and thereafter PW1 proceeded to the police station and registered the crime, that is, Ext.P4 F.I.R. However, the crime number finds a place in Exts.P1 and P3 and hence relying on the aforesaid dictum submitted that the benefit of doubt will have to go to the accused persons.
11.1. In Rafeeque (supra), a learned single judge of this Court held that, presence of crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise Criminal Appeal No.18 of 2016 12 2024:KER:68900 to either of the two inferences, that the F.I.R was recorded prior to the alleged recovery of the contraband or that the number of the F.I.R. was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution case of the incident and creates a good deal of doubt about the recovery of the contraband in the manner alleged by the prosecution. When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the F.I.R, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution. It creates doubt as to the manner in which seizure of the contraband substance and arrest of the accused was effected by the police officers.
12. Therefore, the decision says that only in the absence of any explanation by the detecting officer, the veracity of the case should be doubted and the benefit of doubt is go to the accused persons. However, in this case, PW1 the detecting officer, though in Criminal Appeal No.18 of 2016 13 2024:KER:68900 the re-examination, deposed that the crime number was entered in Exts.P1 and P3 arrest memo and inspection memo respectively, after he reached the police station. There are columns in the arrest memo and inspection memo for recording the crime number. Admittedly, the crime was registered only after PW1 reached the police station after the search, seizure and arrest of the accused persons, which took place at the scene of occurrence. Now the question is, is the subsequent incorporation of the crime number in Exts.P2 and P3 a suspicious factor to throw out the entire prosecution case? In the facts of the present case, it does not appear so in the light of the testimony of PW2 and PW3, two independent witnesses who support the prosecution story of search, seizure and arrest.
12.1. Normally/generally/usually, none of the independent witnesses support the prosecution case and they invariably turn hostile and deny having seen the search, seizure or arrest. This is one among the few rare cases in which the independent witnesses support the prosecution case. PW2 and PW3 are complete strangers to the accused persons and they have not been shown to be in any way in inimical Criminal Appeal No.18 of 2016 14 2024:KER:68900 terms with the accused persons. PW2 has identified the accused persons also in the box. It is true that PW3 was unable to identify the accused persons. But he supported the prosecution case of seizure of the counterfeit notes from three passengers in an autorickshaw on the said day from the place of occurrence. PW2 on the other hand, identified accused Nos.2, 3 and 4. The trial Court has acquitted the 4 th accused, as no evidence was found to convict him for the offence under Section 489C. The State has not challenged the said finding by filing an appeal. PW2 supports the prosecution story of search, seizure and arrest and has also identified accused nos.2 and 3.
12.2. The dock identification of accused nos.2 and 3 by PW2 is challenged by the learned counsel for the accused relying on the dictum in Vayalali Girishan v. State of Kerala, 2016 KHC 204. Vayalali Girishan (Supra) was a case in which the accused persons, inter alia, were alleged to have committed the offences punishable under Section 143 series and Section 302 read with Section 149 IPC. The identification done by the witnesses in the said case was found to be unsatisfactory. It was found that there was no specific endorsement Criminal Appeal No.18 of 2016 15 2024:KER:68900 in the deposition of the eye-witnesses relating to the identification done by them regarding 25 accused persons who were in the dock. It did not appear that the accused had been specifically pointed out with reference to their name or specific feature and no endeavor had been made by the court to individually fix each of the accused as being present at the scene of the crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. The identification of the accused in Court was found to have been conducted in an omnibus and perfunctory manner. Hence the evidence was found unsatisfactory to identify the accused persons. However, the situation in the present case is different. It is true that PW2 does not refer to the rank of the accused. Obviously he would not be aware of the same also. PW2 deposed that except the lady (A6) in the dock he had seen the other persons in the dock on the said day. PW2 specifically identified the 4th accused in the dock by the colour of his shirt and his position in the dock. The persons he had seen in the passenger seat of the autorickshaw was identified as the remaining three persons standing in the dock. He also stated that the lady in the Criminal Appeal No.18 of 2016 16 2024:KER:68900 th dock, that is, the 6 accused was not present in the autorickshaw on the said day. Therefore, there has been a proper identification of the accused persons by PW2 and the arguments to the contrary are only liable to be rejected.
13. The next argument is that even assuming that the 2 nd and the 3rd accused were in possession of MO.1 series counterfeit notes, no evidence has come on record to show that they were in conscious possession of the same. In support of this argument reference was made to the dictums in Anthru @ Abdurahiman v. State of Kerala, 2020 (3) KLJ 962 and Umashanker v. State of Chhattisgarh, AIR 2001 SC 3074. In these decisions it has been held that mere possession of a counterfeit note without the knowledge or reason to believe that the currency notes or bank notes was forged or counterfeit and were intended to be used as genuine, a conviction under Section 489 IPC would not be possible. It was held that possessing or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case under Section 489C in the absence of the mens rea referred to in Section 489C. Criminal Appeal No.18 of 2016 17
2024:KER:68900 Section 489C says that "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". Unless the mens rea is established, the prosecution cannot succeed in establishing the offence under Section 489C. The learned counsel for the accused/appellants referring to a decision of the High Court of Tripura, that is, in Badsha Miah v. State of Tripura, 2020 ICO 1136, also pointed out that no specific question had been put to the accused persons during the questioning under Section 313 Cr.P.C. as to whether they had knowledge that the notes were fake or forged or whether they knew that the same to be forged or counterfeit.
14. On going through Section 313 questioning of the accused persons, I find that questions have been put to them that currency notes had been seized by PW1 from their possession and that PW1 on examination found them to be counterfeit as there was no security thread or water mark and hence was convinced that the notes were counterfeit. The accused persons never had a case that they were unaware/ignorant that the notes were counterfeit. Their case is one of total denial. It is true that the burden is always on the prosecution to Criminal Appeal No.18 of 2016 18 2024:KER:68900 prove the case and establish all ingredients of the offence. The accused persons can certainly remain silent without adducing evidence to establish their innocence. But as pointed out by the learned Public Prosecutor, as per Section 106 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The argument advanced by the learned Public Prosecutor is that if the accused never knew that MO.1 currency notes were counterfeit they could have taken such a stand. On the other hand, the accused took a stand of complete denial. Knowledge is something within the exclusive knowledge of the accused persons. However, they never took such a stand while being questioned under Section 313 Cr.P.C. and when questions were put to them that the notes seized from there were counterfeit notes. Moreover, the circumstances also needs to be looked into. As pointed out by the learned Prosecutor, it was not just one counterfeit note from among some genuine currency notes that were seized from the accused persons. Each of them were found to be in possession of several counterfeit notes, that is, the 2nd accused in possession of 24 Criminal Appeal No.18 of 2016 19 2024:KER:68900 counterfeit notes of the denomination of ₹50/- and the 3 rd accused, found in possession of 25 counterfeit notes of the denomination of ₹50/-. The notes were found wrapped in paper and tied with rubber bands and these packets were found in the shirt and pant pockets of the accused persons. No explanation is given by the accused persons regarding the presence of such number of counterfeit notes and that too wrapped up in paper and tied with rubber bands. They do not have a case that the notes had been given to them by somebody else and that they received and kept the same under the impression and bona fide belief that they were genuine notes. Therefore, the argument that there was no conscious possession of the counterfeit notes, also does not appear to be correct.
15. It is true that no evidence has come on record through the testimony of PW1 that he had packed or sealed the counterfeit notes marked as MO.1 series after they had been seized from the accused persons. But Ext.P2 seizure mahazar clearly refers to the serial number of the counterfeit notes marked as MO.1 series. Ext.P2 seizure mahazar is seen produced before the jurisdictional Criminal Appeal No.18 of 2016 20 2024:KER:68900 Magistrate on the very next day of the incident, that is, on 01/11/2005. It is also true that there has been delay in producing the MOs. before the court. However, PW1 when cross examined deposed that the material objects had been kept safely in the property room of the police station. Therefore, the delay in producing the material objects before the Court is also immaterial as there was no tampering of the same as the serial numbers referred to Ext.P2 tallies with the serial number of the counterfeit notes produced as MO.1 series.
16. Though PW1 to PW3 were extensively cross examined, nothing was brought out to discredit their testimony. PW2 and PW3 are independent witnesses and it has not been shown as to why they should speak falsehood. Therefore, I find that the evidence on record does establish the fact that the 2nd and the 3rd accused were in possession of MO.1 series counterfeit notes and that the same were seized by PW1 on 31/10/2005 at 19:00 hrs as testified by him before the court.
17. Lastly, the learned counsel for the accused/appellants also submitted that, in case this Court finds the 2 nd and the 3rd accused Criminal Appeal No.18 of 2016 21 2024:KER:68900 guilty of the offence punishable under Section 489 IPC, the sentence may be confined to fine alone and the substantive sentence may be avoided. The offence under Section 489C IPC is punishable with imprisonment of either description for a term which may extend to seven years or with fine or with both. Therefore, the learned counsel canvassed for a sentence of fine alone. This is not a case where substantive sentence can be avoided as it is a case relating to counterfeit notes. The use and distribution of these counterfeit currency notes would certainly have an adverse effect on the economy of the State. The maximum sentence that can be awarded for an offence punishable under Section 489C IPC is seven years. Therefore, taking into account the fact that the accused persons are first offenders and the extent of the adverse effect that could have been caused to the society had the counterfeit notes recovered from the accused persons been circulated, I am of the considered opinion that a substantive sentence of one year rigorous imprisonment would serve the ends of justice.
Criminal Appeal No.18 of 201622
2024:KER:68900 In the result, the appeal is partly allowed. The conviction of accused nos.2 and 3 for the offence punishable under Section 489C IPC by the trial court is confirmed. However, the substantive sentence of five years is reduced to rigorous imprisonment for one year. The impugned judgment shall stand modified to the said extent.
Sd/-
C.S.SUDHA JUDGE ak