Madras High Court
Parthiban vs State Rep.By on 18 July, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 11.07.2018 PRONOUNCED ON : 18.07.2018 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.A.720 of 2008 1. Parthiban 2. Kowsigan .... Appellants / Accused Vs State Rep.by Inspector of Police, CBCID, Counterfeit Currency, Prevention Wing, Chennai 600 002. .... Respondent / Complainant Prayer:- Criminal Appeal filed under Section 374(2) of Cr.P.C, praying to set aside the conviction and sentence imposed by the Additional Sessions Judge, Fast Track Court No.3, Thiruvallur, in SC.No.171 of 2007 dated 28.08.2008 and acquit the appellants. For Appellants : Mr.G.Prabhakaran For Respondent : Mr.R.Ravichandran, GA (Crl.Side) JUDGMENT
1. This Appeal is directed against the Judgment dated 28.08.2008 passed in S.C.No.171 of 2007 on the file of the Additional District and Sessions Judge / Fast Track Court No.3, Thiruvallur, thereby convicted the appellants for the offence under sections 489(A), 489(C) and 489(D) of IPC and sentenced them to undergo seven years rigorous imprisonment for each charge and a fine of Rs.5,000/- for each charge and in default payment of fine to undergo Simple Imprisonment for one year for each charge.
2. The case of the prosecution is that on the secret information, Thiru A.Udayakumar, Inspector of Police, CC Wing, Tiruchy Unit, PW-1 on 13.04.2005 along with his party, proceeded to the house located at Door No.10/1-C, Chellan Street, Manickavasagam street, Chinnasekkadu, Manali, Chennai 68 and made house search after given advanced intimation to the concerned Judicial Magistrate. On such search found that the accused was making counterfeit currency notes for Rs.500 denomination with the help of computer and its accessories. They printed Rs.500 hundred denomination counterfeit currency notes in same Serial No as 6 DC418928. The counterfeit currency notes along with the computer and its accessories were connected with materials as itself. Thereafter, PW-1 on such report, registered a case in Cr.No.4 of 2005 under section 489(A), (C) and (D) of IPC and the accused were arrested and remanded to judicial custody.
3. On receipt of the same report of PW.1, PW6 registered the case and recorded confession statement of the accused. P.W.6 also recorded statements from the other witnesses. The seized material objects were sent for expert opinion and after receipt of the same, he filed charge sheet as against the 1st accused for the offence under sections 489(A), 489(C) and 489(D) of IPC. As against the 2nd accused, charge sheet was filed for the offence under sections 489(A) & 489(C) of IPC. Based on the above materials, the Trial Court framed charges as stated above and the accused denied the same as false and claimed trial.
4. The prosecution examined PWs.1 to PW.7 and Exs.P1 to Ex.P10 were marked and material objects 1 to 15 were produced. The PW.1, Inspector of Police on the secret information on 13.04.2005, made a house search along with his party-men and detected printing of counterfeit currency notes for the denomination of Rs.500 with the same serial number for a tune of Rs.49,000/- with the help of computer and its accessories at Door No.10/1-C, Chellan Street, Manickavasagam street, Chinnasekkadu, Manali, Chennai 68. In the presence of witnesses, PW-3 the Village Administrative Officer seized the same. He also prepared seizure mahazar Ex.P.2 and the search list Ex.P3 and submitted to the PW.6, the investigating officer. His search report marked as Ex.P.1, Seizure Mahazaar was marked as Ex P.2 and the search list was marked as Ex.P.3. The material objects seized by PW.1 were produced as material objects 1 to 15 as per Ex.P.2.
5. The PW-2 on 18/05/2005, received the material objects 1 to 15 under Form-95 and, as requested by the investigating officer, seized counterfeit currency notes sent to Hyderabad for examination. The requisitions were marked as Exs.P4 and Ex.P5. Thereafter the seized counterfeit currency notes was examined by PW-4 and he concluded that the seized currency notes are counterfeit notes and sent his report. The said report is marked as Ex.P8. The other seized material objects were sent to Forensic Science Laboratory, Andhra Pradesh and examined by PW-5. His report was marked as Ex.P.9. On receipt of the special report Ex.P.1, PW-6 registered the case and the F.I.R. was marked as Ex.P.10. He examined the witnesses and recorded their statements and after completion of investigation he laid charge sheet as mentioned above. The above incriminating materials were put to the accused under section 313 Cr.P.C. and they denied the same as false and their defence was a total denial. The accused did not examine any witness and not marked any exhibit or document on their side. The Trial Court considering the evidence of the witnesses and materials on record, convicted the accused for the offence under sections 489(A), 489(C) and 489(D) and as against the said conviction and sentence, the accused are before this Court with this appeal.
6. Heard the rival submissions of the learned counsel for the appellant and the learned Government Advocate for the respondent.
7. The learned counsel for the appellants vehemently contended that the prosecution completely failed to prove the charges made against the accused. He contended that the first accused was charged under sections 489(A), 489(C) and 489(D) and the 2nd accused was charged under sections 489(A), 489(C) and 489(D) but the Trial Court, without even framing charges under section 489(D) as against the 2nd accused, convicted both the accused for all the offences. Further, he would contend that Ex.P.1 complaint is directly hit by under section 162 Cr.P.C., since the PW-1 prepared Ex.P.1 after completion of entire investigation including search, seizure of all material objects, arrest of the accused and recording the confession statement from the accused.
8. The learned counsel for the appellants would further contend that the alleged search and seizure was carried out in a planned manner. It is under breach of 162(1) of Cr.P.C. It is illegal. The PW-1 without complying the procedure laid down under section 165 of Cr.P.C., made the search and also even after search, the procedure contemplated under section 166 of Cr.P.C are not complied with. Ex.P.1 itself was prepared after consultation with the superiors and that too also fixed the accused with the said house and therefore the search has no leg to stand further and the entire investigation is liable to be declared as illegal.
9. He would further contend that the prosecution also failed to connect the accused with the said house at Door No.10/1-C, Chellan Street, Manickavasagam street, Chinnasekkadu, Manali, Chennai 68 and there is no evidence or material objects produced to prove that the search, seizure and the material objects are from the said house. Further the prosecution failed to prove that the possession and ownership of the said house, connecting the accused and the owner of the said building. The learned counsel for the appellant would further contend that the Ex.P.2, Seizure Mahazar was sent to the Judicial Magistrate only on 18.07.2007, since the Seizure Mahazar was manipulated and item no.15 was subsequently added to fulfill the lacunae made in Ex.P.2. The Ex.P.3 was also sent to the concerned Judicial Magistrate only on 14.04.2005 and PW-3 who is the sole witness to the Ex.P.3, has disowned his own signature and it is fatal to the case of the prosecution. In the said Ex.P.1, without any justification, item no.15 was inserted and manipulated as if the printer was seized during the search. It is apparent on face of the record and it is appropriate only to fill up the lacunae. Further it is disclosed that one Murugan who is an occupier of the premises and one Dasarathan is the owner. There is no nexus between the accused and the said occupier. The PW-1 was examined by PW-6 and admittedly it was not sent to the court and also not supplied to the accused. Therefore it causes prejudice to the accused and they could not effectively cross examined the witness.
10. Further, the learned counsel for the appellants would contend that the contradiction found in the contents of the search list and seizure mahazar in respect of the material facts including the owner of the name of the 2nd accused in the search list. Therefore the presence of the 2nd accused itself is in question. However, the Ex.P.2, seizure mahazar cannot be construed as legal one when already the search list made to the proviso under section 105 of Cr.P.C. Further more, the said Ex.P.2, seizure mahazar was not at all mentioned in the Ex.P.1. In special report submitted by the PW-1, as per the search list, one Murugan was signed as house owner of the property and he was not examined. Therefore, there is no cogent proof to show that the possession or ownership or control of the computer and its accessories connecting the accused. Further the prosecution case is that the accused were found cutting and bundling the notes. The PW-3 deposed that the accused were taken along with them to the SOC premises. Therefore the entire case of the prosecution vitiated and the prosecution failed to prove the case and prayed for acquittal of the accused.
11. The learned Government Advocate would submit that the accused were found in possession of the counterfeit currency notes and on enquiry they voluntarily gave confession and on that basis the special report was submitted by PW-1. After PW-1, PW-6 registered the same and after investigation laid down the charge sheet. Based on the evidence and material on record, the Trial Court correctly convicted the accused and there is no reason to interfere with the conviction.
12. Heard the rival submissions made by Mr.G.Prabhakaran, learned counsel for the appellants and Mr.R.Ravichandran, learned Government Advocate (Crl.Side) appearing for the State and perused the materials placed before this Court.
13. The case of the prosecution is that on secret information, the PW-1 along with his party man and PW-2, Village Administrative Officer went to the house and made search and detected the counterfeit currency notes. When the search was made, the accused persons were found cutting and bundling the counterfeit currency notes. After seizing the same, he prepared the special report and recorded confession statement from the accused. After preparing the search seizure mahazar, search list and the rough sketch went to the police station. Therefore, admittedly before registering the F.I.R. - Ex.P.10, the entire investigation, seizure were over and it is hit by the proviso under section 162 of Cr.P.C. which reads as follows:-
162. Statements of police not to be signed: Use of statements in evidence:-
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police dairy or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation:- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
14. The learned counsel for the appellant relied upon a Judgment reported in 1993 Criminal Law Journal. 3684, (State of Andhra Pradesh Vs. Punati Ramulu and others). In para-5 , it was held as follows, 5. According to the evidence of PW-22, Circle Inspector, he had received information of the incident from police constable No.1278, who was on 'bandobast' duty. On receiving the information of the occurrence, PW-22 left for the village of occurrence and started the investigation in the case. Before proceeding to the village to take up the investigation, it is conceded by PW-22 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW-1 returned from the police station along with the written complaint to the village that the same was registered by the circle inspector, PW-22, during the investigation of the case at about 12.30 Noon, as the F.I.R., Ex.P-1, could not be treated as the F.I.R. In the case as it certainly would be a statement made during the investigation of a case and hit by Section 162, Cr.P.C. As a matter of fact, the High Court recorded a categorical finding to the effect that Ex.P-1 had not been prepared at Narasaraopet and that it had been brought into existence at Pamidipadu itself, after due deliberation. Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stooped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses of PW-3 and PW-2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching nature, which is found wanting in this case.
15. The learned counsel for the appellants further relied upon a Judgment reported in 1956 MYSORE 51 ( (S) AIR V 43, C. 23 July.) (J.K.Devaiya Vs. State of Coorg), In para 14, it was held as follows, (14) What P.W-7 told the District Superintendent of Police is that the accused was carrying on a scheme for the manufacture of counterfeit coins and currency notes with fraudulent intention and that the accused was in possession of M.O.1 counterfeit coins. It cannot be denied that P.W- 7 reported this matter to the Police with the intention of setting the police in motion.
The District Superintendent of Police, relying on this information, started investigation by deputing P.W.1 to apprehend the accused and seize M.O.1. If what P.W-7 told the D.S.P. Is not the first information regarding the commission of the offence. It is not clear what else it could be. To constitute a 'first information report' two conditions are to be fulfilled: firstly what is conveyed must be an information, and secondly, that information should relate to the commission of a cognizable offence on the face of it.
These two conditions have been satisfied in this case, and I fail to understand how the learned Sessions Judge could hold that this is not the first information regarding the commission of the offence. He holds that by the seizure of M.O.1 by P.W-1 he came into possession of information regarding the commission of the offence. As P.W-1's report Ex.P-5 itself puts, he proceeded to apprehend the accused and seize the articles on receipt of credible information regarding the commission of the offence.
Apprehending the accused and seizure of the articles concerned in the case cannot be considered as first information regarding the commission of the offence. On the other hand, P.W-1's arresting the accused and seizing the incriminating articles were almost the last stage in the investigation of the case. Under these circumstances, I am of opinion that the information conveyed by P.W.7 to the D.S.P. Was information regarding the commission of an offence and not an information which led to the discovery of a crime, as found by the learned Sessions Judge.
16. In this case on hand, PW-1 did not register any F.I.R., after receipt of the information of cognizable offence. After preparing the special report, seizure mahazar and search list and also after getting consultation and discussion with a superior officer, the special report was got registered as F.I.R. Therefore, Ex.P.10 is non-est in the eye of law.
17. It is seen from the Ex.P.2 in the column no.6, that item no.15, was subsequently inserted by the prosecution and deliberately made corrections. It is also very keen to note that the said correction is not found in the copies furnished to the accused. Therefore Ex.P.2 itself was made after fixing the accused and the place of occurrence. It is also seen from the deposition of P.W.3, as follows, ehd; kzypf;F tpvx mYtyfj;jpypUe;J rk;gt ,lj;jpw;F ve;j ntdpy; nghndd; vd;W bjhpahJ/ Mdhy; mJ muRntd;/ MJ 6. 7 ngh; mkuf;Toa thfdk;/ bkhj;jk; ehd;F rPl;Lfs; ,Ue;j thfdk;/ gpd;gf;f rPl;oy; vjphpfs; me;j ntdpy; ,lgf;f rPl;oy; ,Ue;jhh;fnsh my;yJ tyJgf;f rPl;oy; ,Ue;jhh;fsh vd;W epahgfk; ,y;iy/ ifapy; tps';Fnghl;lhh;fsh vd;W vdf;F bjhpahJ/ me;j ntdpy; v';fs; mYtyfj;j[ypUe;J rk;gt ,lj;jpw;F bry;y 10 epkpl';fs; MdJ/ nghdt[ld; ,d;!;bgf;lh; vjphpfSld; ,w';fpdhh;/ mnj neuj;jpy; eh';fSk; ,w';fpndhk;/ me;j tPL kho tPL/ me;j tPl;ow;F Fwpg;gpLk; ,lj;jpw;F vjphpia miHj;J brd;W Ma;thsh; cs;ns EiHe;jhh;/ gpd; eh';fs; brd;nwhk;/ 1-1/2 kzp neuj;jpw;F nkyhf rk;gt ,lj;jpy; ,Ue;njhk;/
18. Therefore, PW-1 along with PW-3 went to the occurrence place along with the accused persons and conducted the search. The prosecution miserably failed to prove that the charges made against the accused. The prosecution did not produce any evidence to show that the accused is the occupier of the house. It is seen from the Ex.P-3, column 7 that one person signed as Murugan was being the house owner. Admittedly, the 1st accused is the son of Dasaranthan. Therefore, there is no clinching evidence to connect the 1st accused with the alleged premises.
19. The learned counsel for the appellant relied upon a Judgment reported in A.I.R. 1953 TRA-CO. 225 (Vol.40, C.N.75) (Thomman Kunju Naina Vs. State), wherein it is held as follows, The burden is on the prosecution to show that the accused was occupying the house where from the instruments for forging currency notes were recovered and that he had joint possession or control over the instruments with the other accused or at least that they were brought there with his knowledge.
20. The PW-1's statement was recorded by the PW-6 and it was not produced before the Court. The evidence of PW-6 in this aspect reads as follows;
rk;gt ,lj;jpy; cs;s rhl;rpfs; ahiua[k; tprhhpj;jhfth Mtz';fspd; Kyk; btspgltpy;iy vd;why; rhpjhd;/ Kjy; jfty; mwpf;ifapy; Twg;gl;Ls;s rk;gt ,lkhdJ vjphpfspd; Kfthp btspgltpy;iy vd;why; rhp/ mJ Kjy; vjphpapd; jhj;jh brhj;J Kjy; vjphpapd; jhj;jhit ,e;j tHf;fpy; rhl;rpahf tprhhpf;ftpy;iy vd;why; rhp/ Kjy; vjphppapd; jhj;jhtpd; brhj;J brhe;jkhdij vd;gij epUgpf;f Mtz';fs; vJt[k; ifgw;wtpy;iy/ fpuhk eph;thf mjpfhhpapd; xg;g[jy; nfl;Lk; bgwtpy;iy. mJ bjhlh;ghf rhd;wpjH; vJt[k; bgwtpy;iy vd;why; rhp/ kf$hpy; Kjy; vjphpapd; thlif tPL vd;W rk;gt ,lkhd Twg;gl;Ls;sJ vd;why; rhp/ M$h; Kjy; vjphpapd; jhj;jh Kjy; vjphpf;F tPl;il thliftpl;ljhf ve;j Mtzj;jpYk; btspgltpy;iy. nrhjid $hgpjhtpy; nrhjid gl;oaypy; me;j ,lj;jpd; chpikahsnuh my;yJ mth; jug;gpy; ntW ahnuh ,Ue;jhh;fsh vd;W me;j ,lj;jpy; fhypahf cs;sJ/ gotk; 95 nrhjid $hgpjhit bgw;Wf;bfhz;ljhf n$.KUfd; vd;gth; ifbaGj;J cs;sJ vd;why; rhpjhd;/ mtiu ehd; rhl;rpahf ,e;j tHf;fpy; tprhhpf;ftpy;iy vd;why; rhp//
21. Therefore it is also fatal to the case of the prosecution. The charge under section 489(A) of IPC against the accused is that they were cutting and bundling the counterfeit currency notes. Admittedly, the PW-1, PW-3 along with the accused went to the alleged house premises. Therefore the evidence of PW-6 is not supporting the case of prosecution.
22. Further, the prosecution has not complied the proviso under section 165(1)(5) of Cr.P.C. Even though, the PW-1 deposed that through Seshachellam, the advanced intimation in respect of search was sent to the Judicial Magistrate, Thiruvotriyur, the said requisition is not at all marked and the said Seshachellam was also not examined by the investigating officer. Even after the search report has not been sent to the Judicial Magistrate. The prosecution has failed to prove the mens-rea of the accused.
23. In this regard, it is relevant to quote the decision reported in (2001) 9 SCC 642 (Umashankar Vs. State of Chattisgarh), read as follows.
8. A perusal of the provisions, extracted above, shows that mens-rea of offences under sections 489(B) and 489(C) is, knowing or having reason to believe the currency notes or bank notes are forged or counterfeit. Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or bank notes, is not enough to constitute offence under section 489(B) of IPC. So also 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 489(C) in the absence of the mens-rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens-rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW.2, PW.4 and PW.7 that they were able to make out that currency note alleged to have been given to PW.4, was fake presumed such a mens rea.
24. Therefore there is absolutely no investigation regarding the selling of counterfeit currency notes by the accused. So far as the next contention of the learned counsel for the appellant is that though no charge under section 489(D) of IPC was framed against the 2nd accused, the trail Court convicted the 2nd accused on total non-application of mind under section 489(D) also. Considering all the material available on record, this court is of the view that absolutely there is no material object to show that both the accused committed the offence under sections 489(A), 489(C) and 489(D) of IPC. As such the prosecution has failed to prove that the charges made against the appellants beyond any reasonable doubt and the appellants are entitled for acquittal.
25. As a result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellants / accused in S.C.No.171 of 2007 dated 28.08.2008 on the file of the learned Additional District and Sessions Judge, Fast Track Court, No.3, Thiruvallur, is set aside and the appellants / accused are acquitted from the charges levelled against them and the bail bond, if any, executed by them shall stand cancelled and the fine amount paid by them is ordered to be refunded to them forthwith.
18.07.2018 Index:Yes/No Internet:Yes/No Speaking order/non-speaking order drl To
1. The Additional Sessions Judge, Fast Track Court, No.3, Thiruvallur.
G.K.ILANTHIRAIYAN, J., drl PRE DELIVERY JUDGMENT IN CRL.A.720 OF 2008 18.07.2018