Kerala High Court
Stephen vs State Of Kerala Represented By on 17 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935
CRL.A.No. 602 of 2002 ( )
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AGAINST THE JUDGMENT IN SC 278/1997 of
COURT OF II ADDL.SESSIONS JUDGE,
TRIVANDRUM, DATED 17-07-2002
APPELLANT(S)/3rd ACCUSED;:
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STEPHEN, S/O.ANTONY,
HARVIPUROM COLONY, NO.C.P.IX/270 VEEDU,
VAZAHAYILA MURI, CHETTIVILAKOM VILLAGE, PEROORKADA,
THIRUVANANTHAPURAM.
BY ADV. SRI.K.NIRMALAN
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.602 of 2002
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Dated this the 9th day of December, 2013.
J U D G M E N T
This appeal is directed against the judgment dated 17.7.2002 in S.C.No.278/97 of the court of II Additional Sessions Judge-Thiruvananthapuram, at the instance of the 3rd accused in the above Sessions court as he is convicted and sentenced for the offence under section 489(B) and (C ) of IPC.
2. The prosecution allegation is that, on 22.2.1991, the accused 3 in numbers were engaged in trafficking of counterfeit notes and in pursuant to their common intention, the 3rd accused handed over 34 counterfeit currency notes to the 2nd accused, who in turn handed over to the 1st accused and the 1st accused, out of the said fake notes, had handed over four counterfeit notes to Pws.2 and 3 and all the accused were involved in the trafficking with Crl.A.No.602 of 2002 2 an intention to use the same as genuine and thus according to the prosecution, the accused has committed the offences punishable under Sections 489(B) and (C) r/w Section 34 of IPC. On getting information from PW1, PW8-the Sub Inspector of Police attached to Nedumangadu Police Station went to the cabin of the Medical Officer, Homeo Hospital, Karakulam and the police seized four currency notes as per the mahazar, in the presence of Pws.5 and 6. According to the police, on the basis of the revealment made by the accused, altogether 39 currency notes were seized by the local Police and thereafter, the investigation was undertaken by CBCID(CFS) Unit, Thiruvananthapuram. Thus on completing the investigation, finally a report was laid in the court of Judicial First Class Magistrate-II, Nedumangad, from where the case was committed to the Sessions court on 31.1.1997 as per the order of the learned Magistrate in C.P.No.29/96 and in the Sessions court, S.C.No.278/97 was instituted and subsequently, made over the case to the present court for trial and disposal. Crl.A.No.602 of 2002 3
3. When the accused appeared, after hearing the prosecution as well as the defence, the learned Judge framed a formal charge against the accused 3 in numbers for the offences punishable under Sections 489(B) and (C) r/w 34 of IPC. When the said charge read over and explained to the accused, they denied the same and pleaded not guilty and therefore the prosecution adduced its evidence by examining Pws.1 to 9 and producing Exts.P1 to P14 documents and also produced and identified M.O.1 series to M.O.6 series. From the side of the defence, DW1 was examined and Exts.D1 to D5 documents were produced and marked. The trial court finally found that the 1st and 3rd accused were found in possession of forged currency notes with the knowledge that they were forged currency notes and that the 1st and 3rd accused intended to use them as genuine in furtherance of their common intention and thus the accused nos.1 and 3 are found guilty for the offences under section 489(C) r/w 34 of IPC. Accordingly, accused nos.1 and 2 are convicted for the offences under Sections Crl.A.No.602 of 2002 4 489(B) and (C) r/w 34 of IPC. However, the learned Judge has found that the 2nd accused is not guilty for the offences charged against him and accordingly he is acquitted. On such conviction of accused nos.1 and 3, they are sentenced to undergo rigorous imprisonment for 6 years each and to pay a fine of `10,000/- each and in default to undergo simple imprisonment for one year under Section 489(B) of IPC. Similarly, they are sentenced to undergo rigorous imprisonment for 2 years each u/s.489(C) of IPC. Set off is allowed under Section 428 of Cr.P.C.
4. Challenging the above conviction and sentence, both accused nos.1 and 3 filed two separate appeals before this Court and both the appeals were posted together. The 1st accused preferred Crl.A.No.629/02 and the present appellant, accused no.3, preferred Crl.A.No.602/02. During the pendency of the above appeals, the 1st accused had expired on 6.9.2011 and the learned counsel who preferred the appeal on behalf of the said appellant/1st accused, filed a memo stating the above fact and along with such memo, the Crl.A.No.602 of 2002 5 learned counsel has also produced the death certificate of the said appellant and recording the above submission as well as the memo, this Court dismissed Crl.A.No.629/02 as abated and proceeded to hear Crl.A.No.602/02.
5. I have heard Adv.Sri.K.Nirmalan, the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.
6. In the present case, the investigation in the above case was set in motion by registering Crime No.57/91 in Nedumangad Police Station for the offences under Sections 489(B) and (C) of IPC, on the basis of the intimation received from PW1. According to PW1, he was working as Chief Medical Officer in the Homeo Hospital at Karakulam during the year 1997 and at the relevant period, according to him, PW3 was the Medical Officer and the accused was the cook there. According to PW1, on 22.2.1991 at about 10.30 a.m. while he was attending his patients, PW2 came to his cabin with three currency notes of 10 rupees denomination and handed over the same to PW1, telling Crl.A.No.602 of 2002 6 PW1 that the 1st accused has given the said notes to him and PW2 further told him that he had given the said notes to Shalimar Hotel after taking tea and the owner of the hotel, on suspicion, detained him and when he informed the owner that he had come to the homeo hospital, the owner of the hotel accompanied PW2 to the hospital and thereafter PW1 called the 1st accused and questioned him. It is the further case of PW1 that, while he was questioning accused no.1, PW3 also came to the cabin of PW1 and entrusted with him one currency note of 10 rupee denomination and according to PW1, PW3 told him that the balance amount of `20/-, which was handed over by the 1st accused after purchasing tea for PW3, contained one currency note of rupee 10 denomination and he suspected the same as a fake note. According to PW1, the 1st accused failed to give any proper answer and therefore he tried to contact Director of Homeo over telephone, but he was not available and therefore PW1 informed the matter to the Homeo Directorate. According to PW1, he had already reported the matter to the Crl.A.No.602 of 2002 7 Nedumangad Police Station and also to the Directorate of Homeo in writing on 23.2.91. Thus when PW1 was examined, Ext.P1 intimation letter is marked through him. It is the further deposition of PW1 that, accordingly the Police came and seized the said four currency notes as per the mahazar, in the presence of Pws.5, 6 and the 1st accused. According to PW1, the first accused was arrested at about 4 p.m. on 23.2.91 from the Homeo Hospital by the Police. He had deposed that the notes seized by the police on 23.2.91 were similar to the notes shown to him during his examination in the court.
7. PW2 at that point of time was working as a clerk in the Government Homeo Hospital, Karakulam and he went to the Government Homeo Hospital, Karakulam in the morning on 22.2.91 and the 1st accused was working as cook at that time in that hospital. According to PW2, earlier the 1st accused had borrowed a sum of `50,000/- from him and when he demanded back the money, the 1st accused gave him three notes each of rupees 10 denomination and it is the Crl.A.No.602 of 2002 8 further case of PW2 that, on getting the above amount from the 1st accused, he had taken tea from Shalimar hotel and given one of the said three notes at the cash counter and the cashier got suspicion regarding the genuineness of the note and according to PW2, he was told by the cashier not to cheat him and thereafter the said cashier accompanied PW2 to the Homeo Hospital and informed the matter to PW1. PW2 has also admitted the presence of PW4 and also stated about the arrival of PW3 as stated by PW1.
8. PW3 is the then Medical Officer of the Government Homeo Hospital, Karakulam, during the year 1991 and according to him on 22.2.1991 at about 9 a.m., PW3 had given a note of rupees 20 denomination to the 1st accused for purchasing tea and the balance amount was given by the 1st accused and out of that one note of rupees 10 denomination and according to PW3, at about 10.30 a.m., she saw PW2 being accompanied by some persons and she got information that the 1st accused had given three forged notes of rupees 10 denomination to PW2 and such Crl.A.No.602 of 2002 9 information was received from one of the staff members. Thus according to PW3, she got some doubt about the genuineness of the notes given by the accused and therefore she entrusted the same with PW1.
9. According to the prosecution, when PW8-the Sub Inspector of Police reached at the Homeo Hospital, he found the fake currency notes placed on the table of cabin of PW1 and the same were seized. Accordingly, PW8 arrested the 1st accused from the said Homeo Hospital. It is the further case of the prosecution that when the 1st accused was arrested and questioned, he disclosed about the 30 fake notes kept in the house of the 1st accused and accordingly 30 notes of rupees 10 denomination were seized from the house of the 1st accused. According to the prosecution, the 1st accused has also disclosed that the currency notes were given to him by the 2nd accused and based on such revealment, the 2nd accused was arrested at about 5.45 p.m. on the same date and according to the Police, the 2nd accused disclosed them that the notes were given by the 3rd Crl.A.No.602 of 2002 10 accused and accordingly the 3rd accused was arrested at about 5.45 p.m. and five counterfeit currency notes of rupees 10 denomination were recovered from his house.
10. As I indicated earlier, PW4 who examined in this case is the owner cum cashier of Shalimar Hotel, where PW3 went for taking tea. PW5 is an attestor to Ext.P2 mahazar, by which four fake notes were recovered from the 1st accused. However, PW10 turned hostile. PW6 is an attestor to Ext.P3 recovery mahazar, on the basis of which, five counterfeit currency notes of rupees 10 denomination were seized from the house of 3rd accused. PW7 is also an attestor to Ext.P4 mahazar with respect to the seizure of 30 counterfeit notes of rupees 10 denomination from the house of the 1st accused.
11. As I referred above, PW8 is the then Sub Inspector of Police attached to Nedumangad Police Station who registered Ext.P5 FIR in Crime No.57/91. When he was examined, Ext.P9 report, by which the correct address of the accused is furnished, has been marked. PW8 has also Crl.A.No.602 of 2002 11 deposed about the arrest of all the three accused and the consequent seizure effected through the disclosure statement made by the accused. Thus when PW8 was examined, Exts.P2, P3, P3(a), P4, P4(a), P5 and P9 were marked through PW8. As I indicated earlier, after the seizure of the counterfeit notes, the investigation was entrusted with PW9 and when PW9 was examined, Ext.P6 report received from the CNP Nassik is marked. Exts.P7 and P8 are the reports, stating about the investigation undertaken by CBCID in Crime No.57/91 of Nedumangad Police Station.
12. In this case, it is relevant to note that after the case was taken for judgment, the evidence was re-opened suo motu by the learned Judge of the trial court and PW9 was recalled and Exts.P10 to P14 are marked through him. Ext.P10 is the property list with respect to 38 counterfeit currency notes, which I mentioned earlier. Ext.P11 is another property list with respect to 10 notes received from CBCID and Ext.P12 is also another property list with respect Crl.A.No.602 of 2002 12 to four fake notes received from the Superior Officer of PW9. Ext.P13 is the forwarding note, by which 53 fake notes were sent for expert opinion. Ext.P14 is another property list with respect to certain other notes received from the Higher Officials. It is on the basis of the above evidence and materials, the trial court convicted accused nos.1 and 3 for the offences charged against them and the 2nd accused is acquitted.
13. Learned counsel for the appellant vehemently submitted that to connect the appellant with the alleged offences, absolutely there is no reliable evidence. It is also the submission of the learned counsel that, PW8 had failed to identify five notes allegedly taken from the house of the appellant. It is also the submission of the learned counsel that though the total number of the fake currency notes recovered from various accused would come only 39, the prosecution in the present case has produced altogether 56 notes and thus 17 notes are in excess from the number of notes allegedly seized from the accused, for which there is Crl.A.No.602 of 2002 13 no convincing explanation. It is also contended that the prosecution has not made any effort to trace out the source of the fake notes. So, according to the learned counsel, the trial court is not justified in its finding and convicting the appellant.
14. Per contra, the learned Public Prosecutor submitted that, the appellant is implicated in the crime on the basis of the confession made by the 2nd accused and also on the basis of the seizure of counterfeit notes from the house of the appellant and therefore according to the learned Public Prosecutor, the prosecution has succeeded in proving the involvement of the appellant in the trafficking of counterfeit notes and therefore no interference is warranted.
15. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record.
16. In the light of the rival contentions and in view of Crl.A.No.602 of 2002 14 the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under sections 489(B) and (C) of IPC.
17. At the outset, it is to be noted that by the impugned judgment, the learned Judge has already acquitted the 2nd accused, who, as per the prosecution allegation, has handled the fake notes and on the basis of his disclosure statement, the present appellant is implicated. Crl.A.No.629/02 is dismissed as abated, since the 1st accused is no more. Going by the entire case of the prosecution, several suspicious circumstances can be noted and the prosecution has miserably failed to clear those reasonable doubts. The very origination of the criminal case against the accused in the present case is doubtful. It is pertinent to note that when PW8-the then Sub Inspector of Police reached in the cabin of PW1, he saw some counterfeit notes on the table of PW1. PW8 did not witnessed the possession of the currency notes by the 1st accused. It is Crl.A.No.602 of 2002 15 beyond dispute that, if the evidence of PW1 is taken as true, he received the fake notes on 22.2.1991 allegedly given by Pws.2 and 3. Thus when PW8 reached in the cabin of PW1 on 23.2.1991, the fake notes were entrusted with PW8 by PW1. From the above facts it can be seen that the Investigating Agency has not seized any counterfeit notes from the physical possession of the 1st accused. Going by the evidence of Pws.1 to 4, it can be further seen that, Pws.2 and 3 were handled with the currency notes on 22.2.1991 and PW8 seized the notes on 23.2.91. So, how the fake notes in question reached on the table of PW1, there is no proper explanation and reliable evidence and the available evidence are insufficient to rule out the involvement of any other person in trafficking such fake notes. So, PW8 proceeded with the case simply on the basis of the information given by PW1. Hence, according to me, the very basis of the prosecution case itself is doubtful. In this juncture it is also relevant to note that, without an elaborate discussion the learned Judge has acquitted the 2nd accused, Crl.A.No.602 of 2002 16 who said to have received the currency notes from the 3rd accused and handed over the same to the 1st accused and it is true that, no recovery of fake notes is effected from the possession of the 2nd accused. But the real fact is that he had also handled the fake notes, but the learned Sessions Judge did not assign any reason to acquit accused no.2, except for the reason that no recovery was effected.
18. Besides the above defect, it is also relevant to note that in the absence of any petition or request from the prosecution, the learned Sessions Judge suo motu re-opened the evidence and recalled PW9 u/s.311 of Cr.P.C. and he was re-examined, during which, Exts.P10 to P14 documents were marked. It is to be noted that, copy of Exts.P10 to P14 documents were not given to the accused and thereby no effective opportunity was given to the defence to cross examine PW9 on the basis of Exts.P10 to P14 documents. Thus, the failure from the side of the prosecution as well as from the side of the court in furnishing the above documents, the accused was prejudiced to a great extent. Crl.A.No.602 of 2002 17 Therefore, it cannot be said that there was any fair trial.
19. As contended by the learned counsel for the appellant, the only evidence to connect the accused with the offence is the alleged recovery effected from the house of the appellant. To prove the above recovery, the prosecution has examined PW6, who is an attestor to Ext.P3 recovery mahazar. Going by the evidence of PW6, it can be seen that he is conducting a bakery at Kacherinada near to Nedumangadu Police Station. The house of the appellant- the 3rd accused was situating about 18 kms. away from the Police Station. So, on a close scrutiny of the evidence of PW6 it can be seen that, the police obtained the service of PW6, who is conducting a bunk shop near to the Police Station and taken him to the house of the 3rd accused-the appellant which is situating 18 kms. away from the bunk shop of PW6, to make him as a witness to the seizure mahazar. In the evidence of PW6 and PW8 it has already came out on record that there were several houses adjacent to the house of 3rd accused and at the time of the alleged Crl.A.No.602 of 2002 18 seizure, there were about 30-40 people assembled in front of the house of 3rd accused. But the police did not cite and examine any witnesses from the locality. Thus, the police deliberately taken PW6 and made him as a witness. So, according to me, the prosecution has miserably failed to establish the allegation against the appellant/3rd accused, by producing reliable and reasonable evidence.
20. In this juncture, it is also relevant to note that, except the disclosure statement of 2nd accused, who was already acquitted by the trial court, there is no evidence to show that the counterfeit currency notes which recovered from the possession of 1st accused were supplied by 3rd accused. The prosecution has also no case that the 3rd accused-the appellant herein, has used the fake currency notes as genuine one. So, the offence under section 489(B) is neither attracted nor proved against the appellant.
21. As the prosecution has miserably failed to establish the involvement of appellant/3rd accused alongwith accused nos.1 and 2, there is no link evidence to show that 3rd Crl.A.No.602 of 2002 19 accused-the appellant has shared any common intention. Even if it is admitted for the sake of argument that, five fake currency notes were seized from the house of the 1st accused, the same fact alone is not sufficient to attract the ingredients of Sections 489(B) and (C) of IPC, unless the prosecution further establishes that the appellant kept those fake notes with a criminal intention. It cannot be ruled out the possibility that the appellant being kept five fake notes in his house by realising that the same are fake ones, which came into his hands through routine transaction. Of course, normally, if it is realised that the same are fake notes, he could have informed the same to the concerned authorities. Even though there is such lapse on the part of the appellant/3rd accused, that is not sufficient to convict him for the offence either under section 489(B) or (C) of IPC and the prosecution has to positively establish that the appellant was found in possession of such fake notes with necessary intention. In the given facts and circumstances involved in the case, according to me, the prosecution has not Crl.A.No.602 of 2002 20 succeeded in proving its allegation against the appellant with satisfactory evidence and materials and therefore, I am unable to sustain the conviction recorded by the trial court against the appellant. Accordingly, the conviction recorded by the trial court against the appellant for the offence under sections 489(B) and (C) of IPC are set aside.
In the result, this appeal is allowed setting aside the judgment dated 17.7.2002 in S.C.No.278/97 of the court of II Additional Sessions Judge-Thiruvananthapuram, and the appellant is acquitted of all the charges levelled against him and the bail bond if any executed by him shall stand cancelled and he is set at liberty.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge