Kerala High Court
Abdul Majeed vs The State Of Kerala
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938
CRL.A.No. 328 of 2009 (A)
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JUDGMENT DATED 10-02-2009 IN SC 373/2005 OF ADDITIONAL SESSIONS
COURT (FAST TRACK COURT NO.III), MANJERI
CP 85/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR
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APPELLANT(S)/ACCUSED NOS.2, 6 & 7:
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1. ABDUL MAJEED, S/O.ABDULLA, POOVATHINGAL
HOUSE, MAKKARAPARAMBA, MALAPPURAM DISTRICT.
2. ABDUL RAFEEQUE, S/O.MUHAMMED ALI @ ALI HAJI,
KONDAYANGADAN HOUSE,
POTHUKALLU,MALAPPURAM, DISTRICT.
3. ABDULLA, S/O.ENTHI, KONDAYANGADAN HOUSE,
POTHUKALLU, MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENT(S)/STATE:
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THE STATE OF KERALA,
THE DETECTIVE INSPECTOR, C.B.C.I.D. S.I.G.III,
KOZHIKKODE-THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY PUBLIC PROSECUTOR SMT.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 15-06-2016, ALONG WITH CRL.A. 737/2009, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
msv/
B. KEMAL PASHA, J.
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Crl. Appeal Nos. 328 & 737 of 2009
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Dated this the 15th day of June, 2016
J U D G M E N T
Appellants in Crl.A.328/09 are A2, A6 and A7 and the appellant in Crl.A.No.737/09 is A3 in S.C. No.373 of 2005 of the Additional Sessions Court(Adhoc- III), Manjeri. A1 and A5 in the case were absconding and consequently the case against them was split up and refiled.
2. The court below found A4 not guilty of any of the offences and consequently acquitted him. A2, A3, A6 and A7 stand convicted under Sections 120B, 489A, 489B, 489C and 489D IPC. A2, A3 and A6 stand sentenced to undergo rigorous imprisonment for five years each and to pay a fine of 5,000/- each, in default, to undergo rigorous imprisonment for one more year each for each of the said offences. A7 stand sentenced to undergo rigorous Crl. Appeal Nos. 328 & 737 of 2009 -: 2 :- imprisonment for 3= years, for each of the offences, and to pay a fine of 3,000/- each, in default, to undergo rigorous imprisonment for six months each. The substantive sentences of imprisonments were ordered to run concurrently.
3. The case in hand reveals strange facts. PW1 while working as the Sub Inspector of Police, Manjeri, received an information on 25.03.2004 that A3 was engaged in a tumult by threatening with a revolver at a bar named "Relax Bar" at Manjeri. PW1, along with the police party, rushed to the spot. On seeing them, A3 took to heels. He was chased and apprehended. He was placed under arrest and he was brought to the Police Station, where Crime No.173/2004 was registered. When he was intercepted further, he had allegedly divulged an information that during 2003, he along with some others were engaged in counterfeiting of currency notes at a house at Manjeri and they distributed it. He further informed that a portion of the Crl. Appeal Nos. 328 & 737 of 2009 -: 3 :- said counterfeit currency notes was available at the house of one Ali Haji at Pothukal Panchayt at Nilambur. The said Ali Haji is none other than A4, who stands acquitted. A3 further informed that he would point out the said house where counterfeit currency notes and the implements and the machinery made use of for counterfeiting were kept, if he was taken there. Based on the revelation made by A3, Crime No.174/2004 of the Manjeri Police Station was registered. Thereafter, PW1 along with the police party accompanied A3. A3 took them to the house of A7, by styling it as the house of A4. The mother of A4 alone was present there. She allegedly identified A3 as the person who used to come over there with A4. As pointed out by A3, they entered inside the house. A3 further allegedly pointed out the place above the attic wherein the said materials were kept. They climbed on the attic and could seize 39 implements for counterfeiting and also partly made counterfeit currency notes of the denomination of 500, Crl. Appeal Nos. 328 & 737 of 2009 -: 4 :- 100, 50 and 20. Bundles of paper, ink, cutter, gum, blade etc. were also seized through Ext.P1 search list.
4. PW19 continued the investigation. He placed A5 under arrest, from whom counterfeit currency notes were seized. Thereafter, he placed A6 and A7 under arrest. Two counterfeit currency notes of 500/- and 50/- were seized from the back pocket of the jeans of A6. Similarly, two counterfeit currency notes of 50/- and 20/- were seized from the pocket of A7, through Ext.P7. PW24 Dy.S.P. has taken over the investigation. PW21 completed the investigation and filed the final report.
5. On the side of the prosecution, PWs 1 to 24 were examined, Exts.P1 to P47 were marked and MOs 1 to 52 were identified. On the side of the accused, DWs 1 to 4 were examined and Exts.D1 to D7 were marked. The attempt of A7 through the examination of those witnesses and production of those records was to make out a case that the said building, from which material objects were Crl. Appeal Nos. 328 & 737 of 2009 -: 5 :- seized, stands in the name of his wife. The court below found A2, A3, A6 and A7 guilty of the offences as aforesaid, convicted them thereunder and sentenced as aforesaid.
6. Heard learned counsel for the appellants and learned Public Prosecutor.
7. The learned counsel for A2 has argued that there is no evidence at all in the case to connect him with the offences alleged. According to the learned counsel, the only allegation against A2 is that he had acted as middleman for the sale of a photocopier of A5 to PW9. Apart from that, his connection with the counterfeit of currency notes or its distribution or possession has not been established. It has been further argued that A6 was not residing at the house of A7. According to the learned counsel for A6, A6 came over there on getting information regarding the police search at the house of A7 and that he has been falsely implicated in this case. It is also argued that no counterfeit currency notes capable of making use of it as genuine were seized Crl. Appeal Nos. 328 & 737 of 2009 -: 6 :- from the possession of A6. For and on behalf of A3, it has been argued that there is no evidence to connect him with any of the offences alleged.
8. On hearing either side and on a perusal of the entire evidence and records of this case, it has come out that there was a legally conducted search at the house of A7 as alleged by PW1 and PW2. There is absolutely nothing to disbelieve the versions of PW1 and PW2 regarding the search and seizure. According to PW1, he along with the police party was taken to the house of A7 by A3. It is the specific case of PW1 and PW2 that the house as well as the spot wherein the incriminating materials were kept, were shown to the police by A3, and the seizure was consequent to the same. Even though A7 has attempted to make out a case that the building stands in the name of his wife, that will not make any difference at all. The fact that the house stands in the name of A7 or his wife does not assume any importance, when A7 was residing there. Incriminating Crl. Appeal Nos. 328 & 737 of 2009 -: 7 :- materials were seized from the said house. Even though A3 had taken PW1 to the said house by styling it as the house of A4, it was the house wherein A7 was residing with his wife. A4 is the son of A7. A6 is the son of A4. Both A4 and A6 are residing in their separate house, which is situated far away from the house in question. When the police party reached there, the wife of A7 was present there.
9. The search and seizure of incriminating materials and machinery from the house of A7 clearly stands proved. Several numbers of partly made counterfeit currency notes of the denomination of 100, 50 and 20 could be seized from above the attic of the house of A7. Over and above it, the machinery and materials for counterfeiting could also be seized from there.
10. As rightly pointed out by the learned counsel for A2, apart from attempting to adduce some evidence to show that A2 had acted as middleman in the sale of a photocopier by A5 to PW9, no specific evidence could be adduced by the Crl. Appeal Nos. 328 & 737 of 2009 -: 8 :- prosecution for the same. Even if it is admitted that A2 had acted as middleman for the sale of the photocopier by A5 to PW9, it cannot invite an offence of counterfeiting. The said photocopier was not seized. There is absolutely nothing to show that such a photocopier was in existence or that the same was made use of for counterfeiting. Matters being so, there is no evidence to connect A2 with the offences alleged and, therefore, he is entitled to be acquitted.
11. Regarding A6, the prosecution case is that four partially made counterfeit currency notes were seized from the back pocket of his jeans, that too five days after the search and seizure from the house of A7. A7 had appeared at the house of A7 while the search was going on. In fact, being the grandson of A7, he had rushed to the spot on getting information regarding the police raid at the house. The fact that he had reached the house during the search and seizure is not sufficient to invite the said offences against A6. Further, it is evident that the incriminating Crl. Appeal Nos. 328 & 737 of 2009 -: 9 :- materials allegedly seized from his possession are two partly made counterfeit currency notes of the denomination of 500 and two partially made counterfeit currency notes of the denomination of 50. The said seizure was through Ext.P6 mahazar. From the contents of Ext.P6 mahazar, it is evident that one side of such a counterfeit currency notes is blank white paper, and print was there only on the one side of it. The same is the case with the seizure from A7 also. Considering the aforesaid aspects, it cannot be said that counterfeit currency notes were seized from the possession of A6. In order to constitute counterfeit currency notes, it should reflect as counterfeit currency notes on both the sides of such counterfeit currency notes. Here, one side of such counterfeit currency notes were not printed at all.
12. In order to invite an offence under Sections 489C and 489D IPC, the accused should be in possession of any forged or counterfeit currency notes, having or having reason to believe the same to be forged or counterfeit and Crl. Appeal Nos. 328 & 737 of 2009 -: 10 :- intended to use the same as genuine or with the knowledge that it may be used as genuine. Therefore, in order to bring out an offence under Section 489C and 489D IPC, the prosecution is bound to prove that such counterfeit currency notes could be made use of as genuine. A counterfeit currency note having one side alone cannot be made use of as genuine. Therefore, the mere alleged seizure of such counterfeit currency notes with print on the one side alone cannot invite an offence under Section 489C or 489D IPC. Similarly, there are no ingredients to invite an offence under Section 489B IPC also as against A6. Further, there is no evidence to show that A6 has made or caused to be made any counterfeit currency notes. The only evidence that can be collected in this case are the incriminating materials seized from above the attic of the house of A7. The responsibility of the same cannot be attributed to A6, who is residing separately.
13. Regarding A3, the only allegation against him is Crl. Appeal Nos. 328 & 737 of 2009 -: 11 :- that he had divulged information to PW1 police officer at the time of interrogation that he along with some other persons had made counterfeit currency notes at a house at Manjeri and distributed the same and made use of the same as genuine. The said fact cannot be treated as admissible evidence in the matter. It could only be in the form of a confession to a police officer while in custody, which is patently inadmissible in evidence. The remaining aspect is that by stating that a portion of such counterfeit currency notes and the implements for fabricating the same were being kept at the house of A4, he took PW1 and the police party to the husband of A7. A7 is the father of A4. Once upon a time, they might have been residing together. But, there is no evidence to show that at the time of search and seizure, A4 and A6 were also residing along with A7 at that house. They were residing separately. At the same time, A7 was residing at that house at that point of time also. The fact that A3 has pointed out the exact place, wherein partially Crl. Appeal Nos. 328 & 737 of 2009 -: 12 :- made counterfeit currency notes, and the machinery and other implements for fabricating counterfeit currency notes were kept, is not the substantive piece of evidence against A3. Even if the said statement made by A3 to PW1 could be treated as an information admissible under Section 27 of the Indian Evidence Act, the same could not be treated as substantive piece of evidence. Such a disclosure even if admissible under Section 27 of the Indian Evidence Act, can only be made use of as a corroborative piece of evidence. When there is no substantive evidence as against A3 in the case, it has to be treated as that there is no evidence against him in the case.
14. Regarding the position of A7, it seems that the concerned house from where the incriminating materials were seized, belongs to A7. He was residing there. There is evidence to show that he has committed the offence under Section 489B as well as 489C IPC also.
15. From all the above, it has come out that there are Crl. Appeal Nos. 328 & 737 of 2009 -: 13 :- no sufficient evidence to connect A2, A3 and A6 for the offences under Sections 489A, 489B, 489C or 489D or 120B IPC. Matters being so, the conviction and sentence passed by the court below on A2, A3 and A6 are liable to be set aside. There is sufficient evidence to convict A7 for the offences under Sections 489A, 489B, 489C and 489D IPC. There is no evidence to prove conspiracy and, therefore, A7 is liable to be acquitted for the offence under Section 120B IPC. The conviction and sentence passed by the court below on A7 for the offences under Sections 489A, 489B, 489C and 489D IPC are not liable to be interfered with.
In the result, Criminal Appeal No.328/2009 is allowed in part by setting aside the conviction and sentence on A2 and A6, who are appellants 1 and 2. They are acquitted. The said appeal so far as it relates to A7 is allowed in part by setting aside the conviction and sentence passed on him for the offence under Section 120B IPC. This appeal against his conviction and sentence for the offence under Sections Crl. Appeal Nos. 328 & 737 of 2009 -: 14 :- 489A, 489B, 489C and 489D IPC stands dismissed. Criminal Appeal No.737/2009 is allowed and the conviction and sentence passed by the court below on A3 are set aside. A3 is acquitted.
Sd/- B. KEMAL PASHA, JUDGE.
ul/aks/-
// True copy // P.S. to Judge.