Karnataka High Court
State Of Karnataka vs Pinki @ Honnursab on 29 March, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 1252 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 1252 OF 2016
BETWEEN:
STATE OF KARNATAKA
BY TOWN POLICE STATION,
HARIHARA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
...APPELLANT
(BY SRI H.S SHANKAR, HCGP)
AND:
Digitally signed by
RENUKAMBA K G 1. PINKI @ HONNURSAB
Location: High S/O MAHMADSAD,
Court of Karnataka AGE 29 YEARS,
R/O NEAR MASJID,
KAKKARAGOLLA,
DAVANAGERE TALUK,
PRESENTLY AT S.M.K.NAGARA,
DAVANAGERE.
2. ALTAF HUSSAIN
S/O RAJAK HUSSAIN,
AGE 30 YEARS
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CRL.A No. 1252 of 2016
R/O POULTRY FARM,
HAMSAGARA COMPOUND,
HARIHARA.
3. ABBAS
S/O JAFAR SAB,
AGE 24 YEARS,
R/O AMBEDKAR CIRCLE,
AZAD NAGARA MAIN ROAD,
DAVANAGERE.
4. ASHPAK
S/O YOUNIS KHAN,
AGE 30 YEARS,
R/O VENKABOVI COLONY,
4TH CROSS, 1ST MAIN,
AZAD NAGAR, DAVANAGERE.
5. ASLAM
S/O MOHMADSAB,
AGE 33 YEARS,
R/O GUTTUR COLONY,
HARIHARA TALUK,
NATIVE OF KAKKARAGOLLA,
DAVANAGERE TALUK.
6. FAROOQ & MOHAMMAD FAROOQ
S/O MUNNA PAILVAN,
AGE 26 YEARS,
KEB CIRCLE,
MUSLIM HOSTEL BUILDING,
BELOW EMPLOYMENT OFFICE,
R/O VENKABOVI COLONY,
4TH CROSS,1ST MAIN,
AZAD NAGAR, DAVANAGERE.
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CRL.A No. 1252 of 2016
7. MUNNA @ MUNNA PAILVAN
S/O ABDUL GAFOORSAB,
AGE 52 YEARS,
CORPORATOR,
DAVANAGERE CORPORATION,
R/O VENKABOVI COLONY,
4TH CROSS,1ST MAIN,
AZAD NAGAR, DAVANAGERE.
8. IMTIYAZ
S/O ISMAIL SAB,
AGE 27 YEARS,
R/O 12TH CROSS,
BASHANAGARA, DAVANAGERE.
...RESPONDENTS
(BY SRI HAREESH BHANDARY T, ADVOCATE FOR
RESPONDENTS NO. 1 TO 3 & 5
SRI NAGARAJ M BHAT, ADVOCATE FOR SRI R B
DESHPANDE, ADVOCATE FOR RESPONDENTS NO. 4 & 6
TO 8)
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED 22.01.2016 PASSED BY
THE I ADDL. DIST. AND S.J., DAVANAGERE IN
S.C.NO.128/2013 THEREBY ACQUITTING THE ACCUSED NO.1
TO 3 AND 5 TO 9/ RESPONDENTS HEREIN OF THE OFFENCES
P/U/S 489(B) AND 489(C) OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
RAJENDRA BADAMIKAR J DELIVERED THE FOLLOWING:
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CRL.A No. 1252 of 2016
JUDGMENT
The State has filed this appeal challenging the judgment and order of acquittal passed by the I Additional District & Sessions Judge, Davanagere in S.C.No.128/2013 whereby the learned Sessions Judge has acquitted the respondents herein of the charges for the offences punishable under Sections 489B and 489C of IPC.
2. The brief factual matrix leading to the case are that the complainant-Investigating Officer received credible information on 15.02.2013 night at 8.00 p.m. that accused No.1 is visiting Harihara KSRTC bus stand in order to circulate counterfeit currency notes. He immediately secured two panchas and along with his staff went to Harihara KSRTC bus stand and near Nandini Milk Parlour, accused No.1 came on a motorbike. He was identified by the staff members and he was apprehended. On search, accused No.1 was found with 27 fake currency notes of 500 denomination totally amounting to Rs.13,500/- and same have been seized. On interrogation, he revealed that -5- CRL.A No. 1252 of 2016 he had received Rs.11,19,000/- worth counterfeit currency notes of denomination of Rs.500/- from accused No.4 and he had already circulated Rs.86,500/- and still possessed Rs.2,50,000 currency notes. Then the Investigating Officer brought accused No.1 to the Police Station and lodged the FIR. Accused No.1 also disclosed that he had handed over Rs.1,00,000/- worth currency notes to accused No.2 and on the basis of information, he secured accused Nos.2, 3 and 5 to 9. On interrogation, accused No.2 gave voluntary statement that he received counterfeit currency notes of Rs.1,10,000/- from accused No.1 and out of the same, he had circulated Rs.1,00,000/- and possessed Rs.10,000/-. The said amount was also seized under a mahazar. Accused No.3 gave voluntary statement that he had received Rs.1,35,000/- counterfeit currency notes from accused No.1 and out of that, he had circulated Rs.1,33,000/- and possessed Rs.2,000/. The said amount was also seized. Accused No.5 confessed that he had received Rs.50,000/- counterfeit currency notes from accused No.1 and out of that, he has circulated 25,000/- -6- CRL.A No. 1252 of 2016 and remaining notes are in his possession and at his instance, same were seized under the mahazar. Accused No.6 confessed that he received Rs.50,000/- counterfeit currency notes from accused No.4 and out of that, he had circulated Rs.26,000/- and possessed Rs.24,000/- which were seized. Thereafter, accused Nos.7 and 8 confessed that they received Rs.2,24,000/- counterfeit currency notes from accused No.1 and out of that, they had circulated 1,69,000/- counterfeit currency notes and possessed Rs.55,000/- counterfeit currency notes, which were also seized at their instance. Accused No.9 confessed that he received Rs.50,000/- counterfeit currency notes from accused No.1 and out of that, he had circulated Rs.27,000/- counterfeit currency notes and he possessed the balance and same was seized. Hence, it is alleged that totally counterfeit currency notes worth Rs.4,02,500/- of Rs.500/- denomination were seized from accused Nos.1 to 3 and 5 to 9. It was alleged that accused No.4 handed over counterfeit currency notes worth of Rs.14,69,000/- to accused Nos.1 to 3 for circulation. It was also alleged that, -7- CRL.A No. 1252 of 2016 accused Nos.1 to 3 having knowledge that they are counterfeit currency notes, received the same for circulation and totally circulated Rs.10,66,500/- counterfeit currency notes and totally possessed Rs.4,02,500/- counterfeit currency note.
3. The Investigating Officer after seizure sent the seized counterfeit currency notes to RBI and obtained certificate that they are not genuine currency notes. On the basis of the recovery and other evidence, he submitted the charge sheet against the accused for the offences punishable under Sections 489B and 489C of the IPC. Accused Nos.1 to 3 and 5 to 9 were arrested and were remanded to judicial custody. Accused No.4 was found to be absconding and case against him stands split up.
4. The learned Magistrate, after perusing the prosecution papers, took cognizance of the offences and copies of the prosecution papers were also furnished to the accused in compliance with Section 207 of Cr.P.C. Subsequently, accused Nos.1 to 3 and 5 to 9 i.e., -8- CRL.A No. 1252 of 2016 respondents herein, have been enlarged on bail as per the order passed by the learned Sessions Judge. Since the offences are exclusively triable by the Court of Sessions Judge, the learned Magistrate, by exercising his powers under Section 209 of Cr.P.C., committed the matter to the Sessions Court. Thereafter, the matter came to be registered in SC.No.128/2013 and was assigned to the I Additional District & Sessions Judge, Davanagere.
5. The accused appeared before the learned Sessions Judge and the charges were framed and read over to them. They pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined 19 witnesses and also got marked 43 documents and two material objects. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The -9- CRL.A No. 1252 of 2016 case of the accused is of total denial and they did not choose to lead any oral or documentary evidence.
6. The learned Sessions Judge after hearing the arguments and perusing the oral and documentary evidence, found that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and as such, acquitted the accused. Being aggrieved by this judgment and order of acquittal, the State is before this Court by way of this appeal.
7. The learned HCGP apart from the grounds urged in the appeal memo, contended that though the mahazar witnesses have turned hostile, the Investigating Officers and other official witnesses have supported the case of the prosecution and the learned Sessions Judge has ignored this aspect. He also contended that there is material evidence regarding accused No.3 transferring amount to the account of accused No.4 which is evident from the statements of Bank Officials, but no credence was given to that by the learned Sessions Judge. He would
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CRL.A No. 1252 of 2016contend that mere hostility of mahazar witnesses itself is not a ground to discard the evidence of the Investigating Officers and other official witnesses. Hence, he seeks allowing the appeal and reversal of the impugned judgment and order of acquittal and conviction of the accused.
8. Per contra, learned counsels for the respondents would support the judgment and order of acquittal passed by the trial Court. They contended that except for the official witnesses, other witnesses have not supported the case of the prosecution and only on the basis of the evidence of Bank Officials, prosecution cannot claim to have proved the guilt of the accused. They would also contend that the entire investigation is vitiated as the investigation commenced before the issuance of FIR. They would also contend that all the recovery mahazar witnesses have turned hostile and considering the commencement of the investigation before registration of the FIR, it is evident that the evidence of the Investigating
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CRL.A No. 1252 of 2016Officers is not trust worthy. The other witnesses did not support the case of the prosecution. The learned Sessions Judge appreciated all these facts in proper perspective and the impugned judgment does not suffer from any illegality so as to call for interference of this Court. Hence, they would seek for dismissal of the appeal.
9. Having heard the arguments and on perusing the records, the following point arises for my consideration:
"Whether the judgment and order of acquittal passed by the learned Sessions Judge suffers from any illegality, arbitrariness or infirmity warranting interference of this Court?"
Analysis
10. Though the prosecution has examined 19 witnesses to substantiate its contention, the entire case of the prosecution is based on the evidence of PW11, PW13 and PW15. It is the specific contention of the prosecution that on the basis of credible information, PW13 along with Panchas went to Harihara bus stand on 15.02.2013 at
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CRL.A No. 1252 of 2016about 8.00 p.m., where he apprehended accused No.1 and from his custody, 27 counterfeit currency notes of Rs.500 denomination, worth of Rs.13,500/- were recovered. Further, it is the contention of the prosecution that, on the basis of the confessional statement of accused No.1, from his possession Rs.2,50,000/- counterfeit currency notes of Rs.500 denomination were also recovered. Further, on the basis of his voluntary statement, accused Nos.2, 3 and 5 to 9 were also arrested and from them counterfeit currency notes said to have been recovered by PW13 and PW15.
11. At the outset, it is to be noted that all the seizure mahazar witnesses have turned hostile. According to the prosecution, PW13 recovered Rs,13,500/- from accused No.1 under Ex.P19 in the bus stand and counterfeit currency notes worth of Rs.2,50,000/- under Ex.P8 from his house. It is also alleged that he recovered under Ex.P9 counterfeit currency notes worth of Rs.23,000/- from accused No.9, under Ex.P10 Rs.55,000/-
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CRL.A No. 1252 of 2016worth of counterfeit currency notes from accused Nos.7 & 8, under Ex.P11 Rs.25,000/- worth of counterfeit currency notes from accused No.5 and under Ex.P4 Rs.2,000 worth of counterfeit currency notes from accused No.3. Further, it is the case of the prosecution that PW13, who is the complainant as well as the Investigating Officer, has directed PW15-PSI and accordingly, PW15 recovered Rs.24,000/- worth of counterfeit currency notes under Ex.P2 from accused No.6 and Rs.10,000/- worth of counterfeit currency notes under Ex.P3 from accused No.2.
12. PWs.7 and 8 are pancha witnesses to Ex.P19 which said to have been conducted in Harihara KSRTC bus stand regarding the recovery from custody of accused No.1. But both the witnesses turned hostile. Further, PWs.3 & 4 are mahazar witnesses in respect of the recovery from the house of accused Nos.1, 3, 5, 7, 8 and
9. But they also turned hostile. PW.2 is the mahazar witness to Ex.P4 and he also turned hostile. Further, PW.19 and PW.2 are mahazar witnesses in respect of
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CRL.A No. 1252 of 2016recovery from accused Nos.2 and 6 under Exs.P2 and P3, but they have also turned hostile. Though they were cross examined at length by learned Public Prosecutor after treating them hostile, nothing was elicited to support the case of prosecution. Hence, it is evident that all the material recovery mahazar witnesses turned hostile. Hence, the prosecution has to fall back only on the evidence of PW13, PW15 and PW14 a constable who was the member of the raiding party. Except these official witnesses, none of the other witnesses have supported the case of the prosecution.
13. PW9 is the hotel owner who runs the canteen at the KSRTC bus stand and he has turned hostile. PW10 was a depot manager and PW16 was running a Milk Parlour in KSRTC Bus stand. But they also turned hostile. Curiously, PW13, after receiving the information, did not make any entries in the CD and without registering the crime, straight away went to the bus stand and there he claims to have apprehended accused No.1 and drawn a
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CRL.A No. 1252 of 2016mahazar. Then he returned and lodged the complaint. Thus it is evident that he began his investigation prior to the registration of crime. It is also evident from his evidence that he went to Harihara bus stand from police station after getting information and that too after securing the Panchas. In that event, nothing prevented him from recording the FIR but he has not done so. This conduct of Investigating Officer completely vitiates the entire proceedings. Further, when he was proceeding to the bus stand, he could have secured the mahazar witness in the bus stand itself, i.e, either the depot manager or any other person working in the KSRTC, but he took witnesses along with him from the police station who did not support the case of the prosecution. Further, PW17 is the owner of the house wherein accused No.6 said to have been residing. He also denied the case of the prosecution.
14. The prosecution has made a futile effort to place reliance on the evidence of PW.5 and PW.6. PW.5 is the Manager of Allahabad Bank and PW6 is the Assistant
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CRL.A No. 1252 of 2016General Manager of IDBI Bank. The evidence of PW6 discloses that accused No.4 was having an account and according to him, accused No.2 deposited Rs.1,80,000/- in to the account of accused No.4. Merely because accused No.2 deposited some amount in the account of accused No.4, it cannot be presumed that the said amount was in exchange for counterfeit currency notes. PW.5 has also deposed regarding accused No.4 holding an account and on 07.02.2013, Rs.1,57,000/- being deposited in that account. He has produced Ex.P16 deposit slip which simply discloses that it was deposited by one Manjunatha who is not accused in the instant case. It is not the case of the prosecution that Majunatha has deposited the said amount in exchange of counterfeit currency notes on behalf of other accused. Hence, the evidence of PW.5 and PW.6 does not assist the prosecution in establishing the guilt of the accused in any way.
15. According to the prosecution, PW.1 deposited a sum of Rs.50,000/-. It is further case of the prosecution
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CRL.A No. 1252 of 2016that the father of accused No.7 has availed some loan from PW1 Hazarath sab and accused No.7 has repaid the said loan of Rs.50,000/- by way of cash. It is also alleged that when Hazarath Sab deposited the said amount i.e., Rs.50,000/- in the bank, it was traced to have contained 7 counterfeit currency notes and a complaint was lodged in that regard. Though the prosecution has placed reliance on Ex.P42 in this regard, PW1 himself has denied the said transaction between himself and accused No.7. Hence, in the absence of direct evidence, the prosecution ought to have made some efforts to prove the chain of circumstances, which the prosecution failed to do. The entire case of the prosecution is based on the evidence of PW13 and PW15, but their evidence is not corroborated by any independent witnesses. The evidence of PW11 simply discloses that MO1 contains 805 counterfeit currency notes and when they were sent by the Investigating Officer, he verified them and submitted the report as per Ex.P22 that they are 'not genuine Indian bank notes'. Though MO1 are proved to be fake currency notes, it does not establish
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CRL.A No. 1252 of 2016they were possessed by the accused or they were recovered from the custody of the accused. To substantiate the said contention, prosecution is required to prove atleast recovery, but that was also not done.
16. The prosecution has also recovered 5 mobile sets under MO2, but no investigation was done and the call details were also not secured so as to link the accused inter se or the present accused along with absconding accused No.4. Ex.P24 is the complaint lodged by PW13/Investigating Officer. He allegedl drew the mahazar as per Ex.P19, between 9.15 and 10.45 p.m. on 15.02.2013 after proceeding from police station and later on, the complaint was lodged at night 11.00 p.m. Hence, prima facie, it is evident that before issuing FIR or registering of the crime, the investigation was undertaken by the Investigation Officer/PW13. This is against the settled principles of law and it vitiates the entire proceedings itself as he did not offer any explanation in this regard.
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CRL.A No. 1252 of 2016
17. PW13/Investigating Officer though deposed in terms of the mahazar, but mahazar witnesses have turned hostile. Further, he claims that after receiving the information, he made an entry in the CD, but the copy of the CD was not produced before the Court. The trial Court, placing reliance on the judgment reported in 2015 Criminal Reports 508 (Kar) (Laxman Poojary Vs. State represented by the Police Inspector, NDC, COD, Bangalore) held that the officer, after having received information regarding the commission of cognizable offence, is required to register FIR and then he has to proceed with the investigation. Hence, it is observed that the entire proceedings are vitiated. It is no doubt true that there is no strict bar for the complainant to take the role of the Investigating Officer. But in such cases, the conduct of the investigation or a member of the raiding party is to be scrutinised carefully and should be supported by some corroborative evidence which is not forthcoming in the instant case.
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CRL.A No. 1252 of 2016
18. The learned counsels for the respondents placed reliance on the judgment reported in Manu/SC/1166/2013 (AIR 2014 SC 187) (LALITA KUMARI V. GOVERNMENT of U.P. AND ORS), in para 111(i), (iv) and (viii) it was held as follows:
" 111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
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CRL.A No. 1252 of 2016Hence, the recording of First Information Report is mandatory.
19. The learned HCGP has placed reliance on judgment of the Apex Court in (2020) 2SCC 563 (SURINDER KUMAR Vs. STATE OF PUNJAB). But the facts of the said case are entirely different. Further, the said case pertained to NDPS Act where there was a presumption of guilt. The said principles cannot be made applicable to the case on hand. He has further placed reliance on the Judgment of this Court in Crl.A.No.3606/2012 (SMT. AMRAMMA @ BASAMMA vs. THE STATE OF KARNATAKA). But the facts and circumstances being different, said judgment cannot be made applicable to the case on hand. The learned HCGP also placed reliance on the Judgment of this Court in Crl.P.3073/2020 & Connected matters, (TASLEEM N.P @ MUHAMMED THASLIM N.P vs. STTATE OF KARNATAKA) dated 01.10.2020, wherein this Court has distinguished Lalita Kumari's case referred to supra. But the said
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CRL.A No. 1252 of 2016judgment pertained to the bail under Section 439 of Cr.P.C. Further, the offences in that case were under Sections 8(c), 20(b) and 22(c) of the NDPS Act. Hence, the said judgment does not advance the case of the prosecution. In view of Lalita Kumari's case referred to supra since PW13 has started investigation of the matter before registration of the crime, the entire proceedings stood vitiated. Even his evidence is not supported by any other independent witnesses. Under these circumstances, the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt.
20. The trial Court appreciated the oral and documentary evidence in detail and analysed the evidence of each witness. It has discarded the evidence of PW13 by giving cogent reasons. As such, no illegality or infirmity is found in the order of the Trial Court. Hence, the impugned judgment and order of acquittal do not warrant interference of this Court. Further, this Court, sitting as appellate court, in an appeal against acquittal, cannot
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CRL.A No. 1252 of 2016interfere unless the conclusions reached by the trial Court are palpably wrong or based on an erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, as observed by the Apex Court in AIR 2014 SC 2200 (MURALIDHAR @ GIDDA & ANOTHER VS. STATE OF KARNATAKA). It is further observed in the above said Judgment that, if the trial Court takes a reasonable view on the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. The said principles are directly applicable to the facts and circumstances of the case on hand.
21. Looking to the aforesaid facts and circumstances, the view taken by the Trial Court is a possible view in the contest of the evidence lead by the prosecution. Hence, the said judgment and order of acquittal does not warrant interference of this Court. The appeal is devoid of merits. We answer the point under
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CRL.A No. 1252 of 2016consideration in the negative and proceed to pass the following:
ORDER The appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE DS List No.: 1 Sl No.: 2