Kerala High Court
Basheer vs State Of Kerala on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
CRL.A NO. 1048 OF 2016
CRIME NO.379/CR/SI/05 OF CBCID, OCW-1, KOLLAM SUB UNIT
AGAINST THE JUDGMENT IN SC 53/2014 DATED 7.10.2016 OF I ADDITIONAL
DISTRICT & SESSIONS COURT, KOLLAM.
CP 16/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR,
KOLLAM
APPELLANT/ACCUSED:
BASHEER
AGED 63 YEARS
S/O MUHAMMED BEERAN RAWTHER, RESIDING AT MAHESWARI
MANDIRAM, OPP MOSQUE, PATHANAPURAM TOWN, FROM ANNOOR
PUTHEN VEEDU, MANCHALLOOR MURI, PATHANAPURAM, KOLLAM
DISTRICT.
BY ADV SMT.MAJIDA.S
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI 682 031.
BY SRI.SUDHEER GOPALAKRISHNAN GP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021,
THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING:
CRL.Appeal No.1048 of 2016 2
JUDGMENT
The appellant herein is the sole accused in S.C.No.53/2014 on the file of the 1st Additional Sessions Court, Kollam. As per the judgment dated 7.10.2016 passed therein, the appellant stands convicted for the offences under Section 489C of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for six months.
2. The prosecution case in brief is as follows:
On 6.8.2005 at 10.30 a.m., the accused by fully knowing that the possession and transaction of fake note is illegal, kept one counterfeit currency note of Rs.500 denomination and two counterfeit currency notes of Rs.100 denomination in his possession. The offence was detected while the police party conducted a search in the CRL.Appeal No.1048 of 2016 3 provision shop run by the accused at Pathanapuram market from a hardboard box kept inside the shop room. Based on the same Crime No.271/2005 was registered by Pathanapuram Police under Section 489C of IPC. Subsequently, the case was taken over by Detective Inspector, CBCID, OCW-1, Kollam Sub Unit and Crime was re-registered as Crime No.379/ CR/SI/05 and after completing the investigation, a final report was submitted.
3. In support of the prosecution, they have examined 13 witnesses, marked Exts.P1 to P14 and identified MOs.1 to 3. After completion of prosecution evidence, the incriminating materials brought out during the trial were put to the appellant/accused while he was examined under Section 313 of Cr.PC. The appellant denied all such imputations and pleaded innocence. After examining the materials produced before the court, the Sessions Court arrived at the finding as aforesaid. Being aggrieved by the said conviction and sentence this appeal is filed.
CRL.Appeal No.1048 of 2016 4
4. Heard Smt. Majida S., the learned counsel for the appellant and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the respondent.
5. The learned counsel for the appellant contends that there is discrepancy in Ext.P1 search list as the serial number of MO1 currency note mentioned therein differs from the actual note seized. According to the learned counsel, the same creates a shadow of doubt as to the prosecution case. It is also contended that, the prosecution failed in proving the seizure of MO1 and MO2 series currency notes from the shop of the petitioner. The learned counsel for the petitioner refers to Ext.P10 license issued by the Panchayat wherein the room number of the shop of the appellant is shown as 27. However, the room number of the appellant's shop is mentioned in Ext.P1 search list as 21. It is further contended that, even if it is assumed for the argument that, the appellant was in possession of MO1 and MO2 series counterfeit currency notes, that by itself would CRL.Appeal No.1048 of 2016 5 not attract the offence under Section 489C of IPC. In order to establish the same, the prosecution has to further prove that the possession of the same by the appellant was a conscious possession by knowing that the notes in his possession was counterfeit. By relying upon the evidence of PW5, it was pointed out that the police officer who was a party to the search, could not specify the difference between the actual note and the counterfeit currency notes allegedly seized. It was further pointed out that, unless it is shown that the counterfeit notes were of such a nature of description that a mere look at them would convince an average man that it was a counterfeit, it cannot be concluded that the possession of such counterfeit was a conscious possession, in the absence of specific evidence leading to such conclusion. The learned counsel relies on the decision on M. Mamutti v. State of Karnataka [AIR 1979 SC 1705], Sukumaran P.O. @ Kunhukunhu v. S.I. of Police Ambalavayal and Anr. [2016(4) KHC 660], CRL.Appeal No.1048 of 2016 6 Anthru @ Abdurahiman v. State of Kerala [2020(4)KHC 469] and Umashanker v. State of Chhattisgarh [2001(3) KLT 681].
6. On the other hand, the learned Public Prosecutor would contend that the prosecution was successful in establishing the ingredients of the offence alleged against the appellant. It is pointed out that, even though there is some discrepancy in Ext.P10 as to the door number of the shop of the appellant, the same cannot be treated as fatal to the prosecution. It was pointed out that, the witnesses have clearly identified the shop room of the appellant and hence even if there is difference in the room number mentioned in Ext.P10, that by itself would not affect the prosecution case. It was further contended that, while conducting the search as evidenced by Ext.P1, the counterfeit currency was found kept separately from the cash box which was kept by the appellant in his shop and this indicates the conscious possession on his part. In CRL.Appeal No.1048 of 2016 7 such circumstances, he prays for dismissal of the appeal.
7. The first contention that is raised by the appellant is with regard to the discrepancy in the serial number of MO1 currency note mentioned in Ext.P1. On going through the same, it is seen that, in the column of description of articles found during search, the number of MO1 currency note was shown as BR300944 which is a currency note of Rs.500 denomination. It is evident that MO1 was actually numbered as BR300946. However, I am of the view that, this is not a fatal discrepancy affecting the prosecution. This is because, even though the serial number was wrongly mentioned in the column for description of articles, in the column for remarks, the number was clearly mentioned as BR300946. PW6 who conducted the search and seizure has clarified that it was a mistake occurred while preparing Ext.P1 search list. The other documents also clearly indicate that the counterfeit CRL.Appeal No.1048 of 2016 8 currency of rupees 500 denomination was bearing number 300946. In such circumstances, I do not find any merit in the contention put forward by the learned counsel for the appellant in this regard.
8. The next aspect is relating to the identity of the shop room of the appellant. It is true that in Ext.P1 search list, the room number of the appellant is mentioned as 21, whereas in Ext.P10 license, which was produced to prove the possession of the appellant over the building, the number is mentioned as room No.27. However, in the facts and circumstances of the case, I am of view that, that by itself is not a ground to discard the prosecution case. This is particularly because Ext.P10, which was proved through PW2, is seen issued for the year 2009-2010, whereas the incident in this case occurred on 6.8.2005. The room number assigned by the Local Self Government Institution, can be subjected to change during the course of time and it is not static. Now coming CRL.Appeal No.1048 of 2016 9 back to the question of identity of the shop room of the appellant, there is ample evidence to establish the same. PW1 is the witness who was examined to prove the attestation of Ext.P1 mahazar. Even though he turned hostile to the prosecution, he had categorically deposed that, the shop of the appellant is just in front of his shop room. It was also stated by him that, the shop room of the appellant is situated in between the shop room of PW4 and PW7. He also stated to have seen a gathering of people when police came to the premises of the shop of the appellant on that particular date. PW4 clearly stated in his examination that, his shop room is adjacent to the shop room of the appellant and on the other side of the shop room of the appellant, PW7's fruit shop is situated. The aforesaid aspect is clearly proved by the evidence of PW7 who acknowledges the above facts in clear terms. The evidence of PW3 also gives an indication to the location and identity of the shop room of the appellant in CRL.Appeal No.1048 of 2016 10 clear terms. It is true that, PWs.1,3,4 and 7 were declared hostile to the prosecution. However, merely because of the reason that they have turned hostile, their entire evidence need not be discarded. It is a well settled proposition of law that, even in such circumstances, the evidence of such hostile witnesses to the extent it supports the case of prosecution can be taken into account and relied upon by the court. Therefore, nothing precludes this Court from considering this issue by relying upon the evidence of the said witnesses. From a careful examination of the said evidence, it can be safely concluded that the materials produced by the prosecution clearly indicate the exact location and identity of the shop of the appellant, without any doubt. In such circumstances, the discrepancy contained in Ext.P10 cannot be treated as something fatal to the prosecution.
CRL.Appeal No.1048 of 2016 11
9. The next contention is with regard to the conscious possession of the appellant. Section 489C of IPC reads as follows:
"Section 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."
As per the said provision, the accused must be in possession of any forged or counterfeit currency note by knowing or having reason to believe that the same is forged or counterfeit. In this case, the crucial question that arises is that, even if the possession of MO1 & MO2 series of currency notes were proved by the prosecution, whether the materials available on record establishes a case of knowledge of the appellant that the aforesaid currency notes were forged or counterfeit notes. The legal position in this regard is settled in CRL.Appeal No.1048 of 2016 12 M.Mamutti's case (supra). It was observed by the Hon'ble Supreme Court as follows:
"There is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under S.342 CrPC. The High Court has affirmed the judgment of the learned Sessions Judge of the ground that in his statement under S.342 made before the committing Court the accused has made a statement different from that made in the Sessions Court and therefore the appellant had reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the Committing Court in Ex. P13 which appears at p. 154 of the paper book, the appellant has struk to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs. 390 in two rupee notes. We are not able to find any inconsistency between the answer given by the accused in his statement under S.342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr. Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be CRL.Appeal No.1048 of 2016 13 presumed to know that the notes are counterfeit. If the notes were of such a nature that a 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. In these circumstances, it is impossible for us to sustain the conviction of the appellant."
In Anthru @ Abdurahiman's case (supra), it was observed as follows:
"18. Therefore, it is a settled position that if there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was counterfeit notes, there cannot be any conviction under S.489B or 489C of IPC. In this case, also there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit notes. Therefore, based on the Apex Court judgment also, it can be found that there is no knowledge to the appellant that MO2 and MO3 are counterfeit notes when he handed over the same to PW6.CRL.Appeal No.1048 of 2016 14
Same point was considered by this Court in Gafoor v. State of Kerala[1987 KHC 564 : 1987 (2) KLT 730]. In this judgment, this Court held that mere possession or use of counterfeit currency notes is not punishable.
This Court found that the accused must have knowledge or reason to believe that the notes were counterfeit or forged. The same view was taken by this Court in Abdul Rahiman v. State of Kerala [2014 KHC 773 : 2014 (4) KLJ 772 :
2015 (1) KLD 13 : ILR 2015 (1) Ker. 641 :
2015 (1) KLT SN 168] and in Sukumaran P.O @ Kunhukunhu v. SI of Police, Ambalavayal and another[2016 (4) KHC 660 : 2016 (2) KLD 929 : 2016 (3) KLJ 835 : 2016 (4) KLT SN 38 : 2016 (4) KLT 613]. In the light of the above authoritative judgments of the Apex Court and this Court, it is clear that the mere possession of a counterfeit note without the knowledge or reason to believe that the currency note or bank note was forged or counterfeit and intending to use the same as genuine, there cannot be a conviction under S.489B or 489C of Cr.P.C.".
In Sukumaran P.O. @ Kunhukunhu's case (supra) also this Court has taken the very same view.
10. Thus from the legal propositions laid down by the Hon'ble Supreme Court as well as this Court in the aforesaid decisions, it is evident that in addition to the possession of counterfeit CRL.Appeal No.1048 of 2016 15 notes, the prosecution also has an obligation to show that such possession was with the knowledge of its nature of falsity. If the notes seized were of such a nature that a mere look at them would convince a prudent man that they were fake notes, it would be possible to presume that the accused had the knowledge or reason to believe that those are counterfeit coins. In this case, none of the witnesses have stated about the said fact. On the other hand, during cross examination, PW5, the civil police officer who accompanied PW6 for conducting the search and seizure, could not mention the distinguishing features of the notes seized, with that of the original currency. It was stated by him that, it could be possible only through examination of an expert. It is evident from the materials that, the notes were identified to be fake by the inspection team initially on the basis of the fact that the serial numbers of MO2 series of notes were same. Under normal circumstances, no person dealing with currency CRL.Appeal No.1048 of 2016 16 would give attention to the serial number of the currency note. It is also a fact that the total number of currency notes found in the possession of the petitioner is just three. Admittedly, he was conducting a shop where day-to-day transactions are being carried out. The total value of the notes comes to Rs.700/- only. The chances that the aforesaid counterfeit currency notes coming to his possession during the course of his normal business, cannot be ruled out.
11. The learned Public Prosecutor would point out at this juncture that, the counterfeit currency seized from the appellant were kept in a separate hardboard box and it was not detected from the drawer where he used to keep the cash. However, in my view, that by itself is not a ground to arrive at the conclusion that it was a conscious possession. This is particularly because, PW13,another police officer who accompanied PW6 and participated in the search and seizure has stated that the hardboard which CRL.Appeal No.1048 of 2016 17 contain the counterfeit currency notes were kept above the drawer where the other currency notes were kept by the appellant. The contents of Ext.P1 search list also indicates that the hardboard box was found near to the drawer where the cash was kept. In such circumstances, merely because of the fact that these notes were found in a separate box, it cannot be concluded that the prosecution has established his conscious possession beyond reasonable doubt. It is also to be noted in this regard that, an attempt was made by the prosecution through PW7, the neigbouring shop owner, to show that some months before the incident, a person came to his shop and handed over a fake 100 rupee note while purchasing some items. However, after realising that it was fake note, he returned the same to the said person and got it replaced with another note. Even though PW7 has reportedly given a statement before the police to the effect that the person who handed over the fake 100 rupee note to him informed that the said CRL.Appeal No.1048 of 2016 18 note was obtained from the shop of the appellant, the version of PW7 during his examination is otherwise. He specifically denied the suggestion put to him by the prosecution that the said person informed him that the said fake note was received by him from the shop of the appellant. The prosecution could not provide any materials to prove the same. In such circumstances, I am of the view that the prosecution failed to prove the conscious possession of the petitioner beyond reasonable doubt. As mentioned above, the chances of these notes coming in his possession during the course of regular transactions in his shop cannot be ruled out. Section 489C of IPC does not contemplate for a punishment merely because of the reason that the accused is in possession of counterfeit notes but on the other hand, it should be proved that such possession was with the knowledge about the fakeness of the currency notes. Thus on examining the totality of the facts and circumstances of this case, I am of the view CRL.Appeal No.1048 of 2016 19 that the conviction and sentence imposed by the Sessions Court in this case is to be set aside.
Accordingly, this appeal is allowed. The conviction and sentence imposed upon the appellant by the 1st Additional District & Sessions Court, Kollam as per the judgment in S.C.No.53/2014 dated 7.10.2016 are set aside.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk