Madras High Court
Charles Shayaraj vs State Represented By on 19 September, 2018
Equivalent citations: AIRONLINE 2018 MAD 1452
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.09.2018
RESERVED ON : 10.09.2018
DELIVERED ON : 19.09.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)Nos.168 of 2011, 170, 193 and 267 of 2011
Charles Shayaraj : Appellant in
Crl.A(MD)No.168 of 2011
Nelson : Appellant in
Crl.A(MD)No.170 of 2011
Suresh : Appellant in
Crl.A(MD)No.193 of 2011
Vijayakumar : Appellant in
Crl.A(MD)No.267 of 2011
Vs.
State represented by
The Inspector of Police,
State Crime Branch,
Fake Currency Preventive Division,
Madurai.
[Crime No.559 of 2000 on the file
of Thuckalay Police Station]. : Respondent in
all Crl.As.
COMMON PRAYER: Criminal Appeals are filed under Section 374(2) of the Code of
Criminal Procedure, against the Judgment and sentence dated 15.06.2011 passed
in S.C.No.111 of 2005 by the learned Assistant Sessions Judge,
Padmanabapuram.
!For Appellant in : Mr.Niranjan S.Kumar
Crl.A(MD)No.168/2011
For Appellant in : Mr.M.Suri
Crl.A(MD)No.170/2011
For Appellant in : Mr.C.Mayilvahana Rajendran
Crl.A(MD)No.193/2011
For Appellant in : Mr.A.C.Asaithambi
Crl.A(MD)No.267/2011
^For Respondent in all Crl.As. : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor.
:COMMON JUDGMENT
These appeals arise from the Judgment of conviction and sentence passed by the learned Assistant Sessions Judge, Padmanabhapuram in S.C.No.111 of 2005. The four accused namely, Suresh, Vijayakumar, Charles Sahayaraj and Nelson against whom, charge under Sections 489-B and 489-C was framed and tried, was found to be proved. Each accused were sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs.10,000/-, in default to undergo 1 year simple imprisonment for offence under Section 489-B IPC and also sentenced to undergo 7 years rigorous imprisonment and to pay fine of Rs.7,000/-, in default to undergo 1 year simple imprisonment for offence under Section 489-C IPC. The period of sentence already undergone is ordered to be set off under Section 428 Cr.P.C. The sentences are ordered to run concurrently.
2.Brief facts of the prosecution case are as follows:
(i)The four accused are friends and know each other very intimately.
A.3 had in his possession counterfeit notes of 100 rupees denomination. In order to put those counterfeit currency notes into circulation as genuine, he took the help of A.1, A.2 and A.4. He gave five 100 rupees counterfeit notes each to A.1 and A.2 and told them that they can pay Rs.250/- each after exchanging the counterfeit currency.
(ii)On 08.04.2000, when A.1 and A.2 tried to exchange the counterfeit currency note under the pretext of purchasing a time piece from Triveni Home Appliances, Thuckalay, they were caught by K.Paramasivan, owner of the said shop assisted by his friend Johnson. A.1 and A.2 were brought to Thuckalay Police Station.
(iii)Based on the complaint given by Paramasivam, the respondent police interrogated A.1 and A.2, recorded their confession statements, recovered five 100 rupee counterfeit currency notes each from A.1 and A.2. Based on the information given by them in their confession statements, the residence of A.3 was searched. From the residence of A.3, 46 bundles of 100 rupee counterfeit notes, totally with face value of Rs.4,60,100/- were seized under mahazar. A.4, who was present during the search of residence of A.3, was also found involved in the offence. He had been there to receive counterfeit currency notes to circulate among public through agents. Hence, the prosecution has also arrested A.4 along with A.3.
(iv)To prove the charges, the prosecution has examined 10 witnesses and marked 19 exhibits.
(v)The Trial Court on appreciation of evidence, held that through P.W.1, the de facto complainant, Paramasivan and Johnson (P.W.2), the prosecution has proved that A.1 and A.2 came to the shop of P.W.1, bargained the time piece worth Rs.250/- for Rs.200/- and tendered two 100 rupee notes. P.W.1 on seeing the note, suspected it to be a false currency. When he enquired A.1 and A.2, they tried to fled away, P.W.1 with the help of P.W.2 apprehended both the accused and produced before Mr.Jeyasubramanian (P.W.8), Inspector of Police at Thuckalay Police Station. From A.1 and A.2, ten 100 rupee counterfeit currency notes [five each] were recovered. Both of them have given confession statements in the presence of witnesses. The signatures of the witnesses Muthukumar (P.W.3) found in the confession statement of Suresh (A.1) is marked as Ex.P.2 and the signature found in the confession statement of Vijayakumar (A.2) is marked as Ex.P.3. The recovery of five counterfeit currency notes from Vijayakumar and the recovery of 500 rupee notes from Suresh were recovered under mahazar. The signatures of P.W.3 found in the mahazar is identified by the witness and marked as Ex.P.4 and Ex.P.5. Kumaradoss (P.W.5) yet another independent witness for the voluntary confession of A.1 and A.2 has identified his signatures in the confession statement and recovery mahazar. The witness to the alleged confession statement of Charles Sahayaraj (A.3) has turned hostile. Christopher (P.W.5) though identified signatures in the recovery mahazar from the residence of A.3 and in the confession statement of A.3, he has not supported the case of the prosecution in respect of its contents. Jeyachandran (P.W.6) has identified his signature in the alleged confession statement of A.3 as Ex.P.10 and his signature found in the recovery mahazar as Ex.P.11. Mr.Iyyappan, Inspector of Police, who registered the complaint, has been examined as P.W.7. He has identified the FIR (Ex.P.12) registered by him based on the complaint given by P.W.1. Jeyasubramanian (P.W.8), who took up the investigation of this case, had spoken about the recovery of five counterfeit currency notes, each from A.1 and A.2, search of the residence of A.3, recovery of 45 bundles of 100 rupee currency notes, each containing 100 notes and one bundle of 100 rupee notes containing 90 notes. The report of the scientific expert in respect of the genuineness of the notes seized, proved to be fake currencies and the same has been spoken through the chemical analysis report, marked as Ex.P.19.
(vi)The Court below having considered the evidence of these witnesses and exhibits, has held all the four accused guilty of offence under Sections 489-B and 489-C IPC.
(vii)Each of the accused persons have filed appeals independently raising points in their favour challenging the Trial Court's Judgment.
3.Crl.A(MD)Nos.193 and 267 of 2011 preferred by Suresh (A.1) and Vijayakumar (A.2):
These criminal appeals are preferred by Suresh (A.1) and Vijayakumar (A.2) respectively. In these two appeals, the appellants have raised identical grounds, namely, P.W.1 who claimed to have received the fake currency note from these appellants, had given a contradictory evidence in his cross-examination. While his evidence in chief as well as in cross- examination are contradictory to each other and not supported the case of the prosecution, the Trial Court ought to have acquitted them. The alleged recovery of fake notes from A.1 and A.2 does not fall within the parameters of Section 25 of the Indian Evidence Act, since the alleged recovery from them, is not based on the confession statements of these two accused. The evidence of the investigating officer is uncorroborated. Therefore, relying upon the sole evidence of the investigation officer without any corroboration, the conviction of the appellants under Sections 489-B and 489- C IPC is unsustainable. None of the prosecution witnesses has supported the version of the prosecution in respect of confession and recovery based on the said confession.
4.Crl.A(MD)No.168 of 2011 preferred by Charles Sahayaraj (A.3):
According to this appellant, the learned Trial Judge failed to see that mere possession of counterfeit currency notes is not an offence. Section 489-B and 489-C IPC will attract only if the person had the knowledge that the currency he possessed are counterfeit currency notes and that he intended to use them as genuine. The Court below is erred in relying on the sole of evidence of the investigation officer without any corroboration. P.W.5 had categorically deposed that his signature in the confession statement and seizure mahazar (Ex.P.9) were obtained at Thuckalay Police Station. Similarly, P.W.6 has deposed that his signature in the confession statement (Ex.P.10) and seizure mahazar (Ex.P.11) were obtained at police station. Thus, the very seizure of counterfeit currency notes from the residence of A.3 is not proved. When none of the prosecution witnesses supported the version of the prosecution in respect of confession and seizure of counterfeit currency notes pursuant to the said confession, the finding of the Trial Court holding that A.3 is guilty of offence under Sections 489-B and 489-C is unsustainable. The contradiction between the attested witnesses P.W.5 and P.W.5 to that of the evidence of the investigation officer (P.W.8) has not been properly considered by the Court below. The seizure mahazar in respect of the recovery of 46 bundles of counterfeit currency notes from the residence of A.3 is not supported by any corroborative evidence. The contradiction between the investigation officer and the witness regarding the preparation of seizure mahazar rendered the case of the prosecution as false. The recovery of fake currency from the residence of A.3 does not fall within the parameters of Section 27 of the Indian Evidence Act, since the investigation officer has deposed that the accused took out the fake currency and handed over to him.
5.Crl.A(MD)No.170 of 2011 preferred by Nelson (A.4):
According to this appellant, learned Trial Judge has failed to see that there is no evidence available on record as against this appellant to convict him under Sections 489-B and 489-C IPC, except the alleged confession of co- accused, which is not admissible in evidence. The prosecution has failed to place any evidence to show A.4 has committed any overtact in respect of the offences charged. When there is no evidence on record to connect this appellant along with other accused, the Trial Court has erred in holding that this appellant (A.4) had participated in the crime along with other accused persons. Except alleging this appellant (A.4) was present along with A.3 at his residence, when the police team came to A.3 residence for search, there is no other evidence to indicate that this appellant had committed any offence. The connection between the other accused and A.4 has not been established by the prosecution through any of the witnesses. Therefore, the benefit of doubt has to be extended to this appellant.
6.In support of their respective submissions, the learned counsels would rely upon the following Judgments:
(i)State of Gujarat v. Jyotsnaben and Others reported in (2016)3 GLH 597 [High Court of Gujarat].
(ii)Umasankar v. State of Jhattisgargh reported in (2001)0 AIR (SC) 3074.
(iii)J.Mohammed Shabbir v. The State of Maharashtra reported in (2016)0 AIIMR (Cri)1152 [Bombay High Court].
(iv)Liyakath Alikhan v. The State rep. by the Inspector of Police, Pollachi reported in CDJ 2016 MHC 015. [Madras High Court].
7.Per contra, the learned Additional Public Prosecutor appearing for the State would submit that the prosecution has proved the guilt of the accused persons to the Court through oral and material evidence. The crime has come to light when A.1 and A.2 attempted to purchase time piece from the shop of P.W.1 using counterfeit note. The currency tendered were apparently not genuine carrying some serial number. Obviously, a businessman, who is well accustom with currencies, had suspected the genuineness of the currency. When questioned A.1 and A.2, they tried to run away from the shop. P.W.2 his friend, Johnson, had helped P.W.1 to apprehend both A.1 and A.2 and brought them to police station. Though P.W.2 has turned hostile and P.W.1 had contradicted his own statement in chief when cross-examined after ten years of the incident and four years after chief-examination, the evidence in chief cannot be washed away. A.1 and A.2 along with the fake currencies were handed over to the police station immediately after they were caught red- handed while exchanging fake currency. The recovery of 46 bundles of 100 rupee notes worth about Rs.4,60,000/- is supported by material objects recovered, the mahazar pertaining to the recovery which is a contemporaneous document and no explanation could be offered by A.3 for holding huge counterfeit currency notes. A.4 a person known to A.3, had knowledge of counterfeit currency in possession of A.3 in order to get few currencies for circulation through his agent, he has come to A.3 residence. This fact is spoken by A.3 in his confession statement. A fact which is exclusively within the knowledge of the maker, leading to discovery of any incriminating material is admissible in evidence under Section 27 of the Indian Evidence Act. The admissible portion of the confession of A.1, A.2 and A.3 so incriminating to each other disclosed the factum of possession of counterfeit currency notes, their intention to circulate in the public as if it is genuine are well founded through their confession statement leading to discovery of a fact exclusively within the knowledge of the maker of the confession statement. The role of A.4 to circulate counterfeit currency notes among public is well proved by the prosecution and therefore, there is no necessity to interfere in the finding of the Trial Court.
8.In support of his submission, the learned Additional Public Prosecutor would rely upon the following Judgments:
(i)Public Prosecutor v. Rowthula Kondalrao reported in AIR 1939 Madras 96;
(ii)Basdev v. State of Pepsu reported in 1956 SC 488;
(iii)Joti Parshad v. State of Haryana reported in AIR 1993 SC 1167; and
(iv)Mehboob Ali and Another v. State of Rajasthan reported in 2016 (14) SCC 640.
9.The learned Additional Public Prosecutor emphasized that when accused is found in possession of counterfeit currency notes, knowing them to be counterfeit, it has to be held that the possession of notes is with intention of using them as genuine, to attract Sections 489-B and 489-C IPC. The knowledge is an awareness of the consequence of the act and the conduct of A.1 and A.2 to flee away from the scene immediately when P.W.1 found that the currency tendered by them are not genuine, discloses that A.1 and A.2 had knowledge about the ingenuineness of the currency they tendered. ?Knowledge and reason to believe? have to be deduced from various circumstances.
10.A.1 and A.2 tendered two 100 rupee notes for purchase of a time piece and attempted to run away from the shop, immediately after the shop owner entertaining suspicion about the genuineness of the currency, they tendered coupled with the fact that concealing the remaining currency in their underwear are the circumstances to deduce A.1 and A.2 had knowledge that they possessed counterfeit currency notes. The statement of the accused persons has lead to the discovery of fact proving complicity of other accused persons and the entire chain of circumstances clearly makes out that the accused had knowledge about the possession of counterfeit note. The guilt of the accused persons to be held proved through fact discovered in Section 27 of the Indian Evidence Act. It is not restricted to a physical or material fact alone.
11.Point for consideration:
?Whether the fake currency alleged to have been recovered from A.1 and A.2 while they attempted to exchange it as a genuine currency and from A.3 residence in the presence of A.3 and A.4 is proved in the manner known to law and whether it will attract Sections 489-B and 489-C IPC??
12.The charge against A.1 to A.4 as framed by the Trial Court is for both Sections 489-B and 489-C IPC for alleged offence of possessing counterfeit notes, which happened to be seized at two different places, first from A.1 and A.2, when they tried to exchange the currency at Triveni Home Appliances; second huge haul of counterfeit currency to the tune of its face value of Rs.4,60,000/- from the residence of A.3 at Door No.31-B, Tennison Street, in the presence of A.3 and A.4.
13.Regarding the first incident of recovery, 10 counterfeit currency notes of 100 rupee denomination five each from A.1 and A.2, it is the evidence of P.W.1, proprietor of Triveni Home Appliances, which lends support to the case of the prosecution. He is the witness, who has confronted A.1 and A.2 when they tendered counterfeit note. He, on seeing the notes, had entertained suspicion. The evidence of P.W.1 is very natural and cogent. No doubt, Johnson (P.W.2) has not corroborated the evidence of P.W.1 except admitted the fact that on the day of event, he was at the shop of P.W.1. He also admits that he know accused Suresh (A.1). It is also borne on record with the chief examination of P.W.1 was recorded on 03.08.2006 and was recalled after four years on 20.10.2010 and subjected to cross-examination. While cross-examination, he has contradicted his own deposition made during examination in chief.
14.This swing in the stand of P.W.1 and P.W.2 is to be tested with the evidence of P.W.7, who has spoken about the fact that on 08.04.2000 at about 10.00 p.m., P.W.1 came to the police station with Suresh (A.1) and Vijayakumar (A.2), produced them along with ten 100 rupee notes and lodged a complaint regarding the event which tookplace at his shop early on the day at 10.30 p.m. Based on his complaint, P.W.7 has registered FIR in Crime NOo.559 of 2000 for offence under Sections 489-B and 489-C IPC. The said FIR is marked as Ex.P.12. The same has been forwarded to the learned Judicial Magistrate and received by the learned Judicial Magistrate, Padmanabhapuram on 09.04.2000 along with the seizure mahazar pertaining to the currencies seized from A.1 and A.2. On a cumulative assessment of the documentary evidence and the oral evidence of P.W.1, P.W.2 and P.W.7 in respect of the event which alleged to have been happened at Triveni Home Appliances on 08.04.2000 at 09.30 a.m., though P.W.2 has not supported the case of the prosecution and P.W.1 had later contradicted his deposition when cross- examined after 10 years of the event, the other material facts and documents, which will not lie, though men may lie, sufficiently prove the fact that A.1 and A.2 were caught red-handed while trying to purchase time piece from P.W.1 shop by tendering counterfeit currency.
15.Now considering the recovery of 46 bundles of 100 rupee notes from the residence of A.3, the explanation of A.3 is that he is a sinister. Police came to his house and took him to police station and foisted the case. Whereas the prosecution case is that based on the confession statements of A.1 and A.2, the information about the source of counterfeit currency seized from them had been emanated from A.3. Therefore, his residence is searched and the counterfeit currency notes have been recovered. The said currency after seizure has been sent for the analysis by the State Forensic Laboratory. Ex.P.19, report would go to show that the currency item Nos.1 to 4 are 1600 of counterfeit 100 rupee bank notes of Reserve Bank of India. Christopher (P.W.5) and Jeyachandran (P.W.6) are the independent witnesses for the recovery of the counterfeit currency from Door No.31-B, Tennison Street, Nagercoil, had not supported the case of the prosecution, while P.W.5 has not positively said about the time and place of recording confession statement of A.3 and the recovery of counterfeit currency from his residence.
16.Jeyachandran (P.W.6) would depose that the police were interrogating the accused in the police station, accused gave confession statement, in which he has signed. He has identified his signature in the confession statement of Charles Sahayaraj and his signature is marked as Ex.P.10. In the recovery mahazar he has affixed his signature and the same is marked as Ex.P.11. Since P.W.5 and P.W.6 have not supported the case of the prosecution in respect of the recovery of counterfeit currency notes seized from A.3 at his residence, doubt is created whether A.3 had in his possession any counterfeit note and whether he had any intention to use it as genuine note? Further pointing out the contradiction the manner in which the said currency notes recovered from the residence of A.3, it is doubted by the accused whether such a recovery will fall within the recovery under Section 27 of the Indian Evidence Act?
17.The answer for this doubt raised by the appellant could be answered with an emphatic yes. Based on the information given by the co-accused, A.2 residence has been searched and 45 bundles of 100 rupee notes containing 100 notes each and one bundle with 90 notes were recovered. This is sufficient to hold that the currency found in the residence of A.3 were possessed by him with knowledge and with reason to believe that they are counterfeit currency. The serial numbers found in the recovery mahazar will easily indicate that several notes carry the same serial number, which is impossible if they were genuine. Besides, the waterline marking, ink sharpness, non-matching of style and numbers, poor quality of paper, lack of sharpness in the designs on both sides of the note, absence of water mark [Ashok pillar] and absence of light and shade all put together any person reasonable alert could find those currencies are counterfeit. The evidence of P.W.5 and P.W.6 has not totally negate the case of the prosecution. More particularly, P.W.6 has identified his signature in the confession statement of A.3 and in the recovery mahazar based on the confession of A.3.
18.Whether the recovery of counterfeit currency notes is based on the confession statement or independent of it, the fact remains that the counterfeit currency notes have been recovered from the possession of A.3 from the residence of A.3. Therefore, as far as A.1, A.2 and A.3 are concerned, this Court has no doubt about their complicity in the crime. Therefore, the finding of the Trial Court against A.1, A.2 and A.3 is based on evidence. The conviction on them for the offence under Sections 489-B and 489-C IPC needs no interference.
19.As far as A.4 is concerned, the evidence available against him is very weak. It is stated by the prosecution that he was present at the house of A.3 to get counterfeit currency notes for circulation in the public through some agent. This portion is spoken by A.3 in his confession. Based on this confession, A.4 is implicated in this crime. It is to be noted that the accused are not charged for the offence of conspiracy. The charge is common. They (A.1 to A.4) are put to trial for offence under Sections 489-B and 489-C alone. To attract offence under Sections 489-B and 489-C, there must be a proof that the accused has involved in selling, buying or receiving from the other person counterfeit currency and used or used it as genuine, knowing that it is a forged or counterfeit currency note, or he must have reason to believe that the same is forged or counterfeit.
20.In this case, the prosecution has proved that A.1 and A.2 had in their possession forged counterfeit currency knowing and reason to believe the same to be forged. They tried to use the same as genuine by tendering it to P.W.1 for purchase of time piece. They have procured the said counterfeit currency notes from A.3. The confession statement which discloses this fact, is admissible under Section 27 of the Indian Evidence Act. Hence, both the offence under Sections 489-B and 489-C are proved as against A.1 and A.2.
21.From the facts, the recovery of 46 bundles of counterfeit currency, 45 containing 100 notes each and one containing 90 notes from the possession of A.3 is proved through the mahazar. Since the recovery proved to be from the residence of A.3 and such a huge quantity of counterfeit notes found in his house, requires a proper explanation from A.3, which is found from his confession statement. He has sold 10 currency notes to A.1 and A.2 which is proved through the confession statement of A.1 and A.2 as well as from the recovery of M.O.1 series from the possession of A.1 and A.2 which is part of bulk counterfeit currency notes found in possession of A.3. When it comes to A.4, except the confession statement of A.3 that he came to his house to receive the counterfeit currency for onward circulation, there is no other evidence to implicate A.4.
22.The only piece of evidence against A.4 is the statement of A.3 and the circumstantial evidence of his presence in the house of A.3, while the police came for search of A.3 house.
23.The confession of a co-accused which is inculpatory in nature implicating the co-accused, can be a relevant piece of evidence for appreciation under Section 30 of the Indian Evidence Act, if they are tried together. However, it is not sufficient to convict A.4 solely based on the said confession of A.3. More so, when the witness for his confession statement has failed to say anything about the presence of A.4 when A.3 gave his confession statement at his residence. Therefore, while confirming the conviction of A.1, A.2 and A.3, this Court finds that the charges against A.4 is not proved beyond doubt. Hence, he is entitled for acquittal.
24.As far as the sentence against A.1, A.2 and A.3 is concerned, undoubtedly the crime is very grave in nature and deserves very stringent punishment. However, considering the facts and circumstances of the case, the period of sentence is liable to be modified as stated infra.
25.In the result,
(i)Crl.A(MD)Nos.168, 193 and 267 of 2011 are partly allowed. The conviction dated 15.06.2011 passed in S.C.No.111 of 2005 by the learned Assistant Sessions Judge, Padmanabapuram, in respect of the appellants/A.1, A.2 and A.3 are confirmed and the sentence imposed on them is modified as under:
Sl.No. Accused Offence Sentence imposed by the Trial Court Sentence modified by this Court
1.
A.1 to A.3 489-B I.P.C.
10 years rigorous imprisonment and to pay fine of Rs.10,000/-, each, in default to undergo 1 year simple imprisonment. 4 years rigorous imprisonment and to pay fine of Rs.10,000/-, each, in default to undergo 1 year simple imprisonment.
2. A.1 to A.3 489-C IPC 7 years rigorous imprisonment and to pay fine of Rs.7,000/-, in default to undergo 1 year simple imprisonment.
4 years rigorous imprisonment and to pay fine of Rs.7,000/-, each, in default to undergo 1 year simple imprisonment.
The period of sentence already undergone by them is ordered to be set off under Section 428 Cr.P.C. The sentences are ordered to run concurrently. The Trial Court is directed to secure the appellants/A.1, A.2 and A.3 and commit them to prison to undergo the remaining period of sentence. The bail bonds, if any, executed by them shall stand cancelled.
(ii)Crl.A(MD)No.170 of 2011 is allowed and the conviction and sentence dated 15.06.2011 passed in S.C.No.111 of 2005 by the learned Assistant Sessions Judge, Padmanabapuram, in respect of this appellant/A.4 set aside. The appellant/A.4 is acquitted. Fine amount, if any, paid by him, shall be refunded forthwith. Bail bond, if any, executed by him shall stand cancelled.
To
1.The Assistant Sessions Judge, Padmanabapuram.
2.The Inspector of Police, State Crime Branch, Fake Currency Preventive Division, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.