Karnataka High Court
Vishwanath Mallappa Karadiguddpatil vs The State Of Karnataka, on 22 February, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO. 2679/2012
BETWEEN:
VISHWANATH MALLAPPA
KARADIGUDDPATIL,
AGED ABOUT : 25 YEARS,
OCC.: PAINTING WORK,
R/O: ARAVIND NAGAR, 5TH CROSS,
OLD HUBLI, TALUK: HUBLI,
DIST.: DHARWAD.
- APPELLANT
(BY SRI M.B. GUNDAWADE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD,
THROUGH GHATAPRABHA POLICE.
- RESPONDENT
(BY SMT. VEENA HEGDE, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
PASSED BY THE FAST TRACK COURT & ADDL. SESSIONS
JUDGE, HUKKERI, SITTING AT GOKAK, IN S.C. NO.
118/2011 DATED 05.04.2012 FOR THE OFFENCES
PUNISHABLE U/S 489(B) OF IPC & ETC.,
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The present appeal is preferred calling in question the judgment of conviction and sentence passed by the Fast Track Court and Addl. Sessions Judge, Hukkeri, sitting at Gokak in S.C. No. 118/2011 dated 05.04.2012 in convicting the accused and sentencing him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- with a default sentence of three months for the offence punishable under Section 489(B) of IPC. By the same judgment the learned Sessions Judge has acquitted the accused-appellant for the offence punishable under Section 420 of IPC.
2. The brief factual matrix on which the chargesheet has been laid against the appellant are that on 7.10.2010 at about 4.30 p.m., at Ghataprabha J.G. Co.Op. Hospital, near a petrol bunk, the appellant, with an intention to commit the offence alleged, was standing near the said petrol bunk. The police after 3 receiving such credible information about said attitude of the accused, particularly P.W.7, along with his staff and panch witness, raided the said place. After seeing the police, the appellant tried to escape from the clutches of the police. However, the police chased him and caught him and on his personal search, the police found four counterfeit currency notes of Rs.500/- denomination. P.W.7-Investigating Officer, who was working as C.P.I of Mudalagi during the relevant point of time, in the presence of the panch witnesses, seized the said currency notes under a mahazar. After, thorough investigation, the police have submitted a chargesheet for the offence under Sections 489B and 420 of IPC. The prosecution, in order to prove the guilt of the accused, examined as many as nine witnesses and got marked Exs.P.1 to P.13 and also got marked M.Os.1to 4 i.e., currency notes of Rs.500/- denomination.
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3. The learned counsel for the appellant seriously contends that trial court has not appreciated the evidence on record properly and has wrongly convicted the accused for the offence under Section 489B of IPC. He also contends that trial court has not appreciated properly the hostility of P.Ws.2 and 3, who are the panch witnesses and who are stated to have been present at the time of seizure of said counterfeit of Rs. 500/- denomination from the custody of the appellant.
4. Per contra, the learned High Court Government Pleader, in support of the judgment passed by the Trial Court, submitted that the Trial Court has considered each and every point raised by the defence and, after appreciating the oral and documentary evidence on record, has come to the conclusion that the accused has committed such offence, and the Trial Court has sentenced the accused accordingly. She, therefore, submits that there is no 5 room for this Court to interfere with such judgment of conviction and sentence passed by the Trial Court.
5. On careful re-evaluation of the materials on record, the only point that would arise for consideration of this Court is, Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the Trial Court?
6. The prime witness to the prosecution case is the Investigating Officer, P.W.1, who accompanied the Investigating Officer at the time of raid, and the panch witnesses P.Ws.2 and 3.
7. P.Ws.2 and 3 have turned hostile to the case of the prosecution, and I will refer to the evidence of these witnesses, briefly, little later.
8. P.W.7-Sadashiva Revappa Kattimani, who was working as a Circle Police Inspector, Mudalagi, during 6 the relevant point of time, has deposed that on 07-10-2010, he received a credible information that one Vishwanath Patil was indulged in possessing counterfeit currency notes in order to use the same in public. Immediately, he took two panch witnesses along with him and also C.Ws.4 to 10, who are the staff members, and they all went near J.G. Co.Op Hospital and were waiting nearby a petrol bunk. At that time, a person, who was sitting on a bridge, after seeing the police, tried to ran away from the spot. Immediately, they chased and caught hold the said person. On enquiry, they came to know that the said person by name Vishwanath Karadiguuda Patil (the appellant herein). In the presence of the panch witnesses, on personal search of the said person, the police found in his pants pocket, four counterfeit currency notes of Rs.500/- denomination. P.W.7 has also stated that the said fake currency notes were seized and, in the presence of the panch witnesses, those fake currency notes were packed and sealed. He has further stated 7 that, on enquiry, the appellant told that the said fake currency notes were given to him by somebody and he wanted to use the said currency notes in the public as genuine currency notes, and that the appellant was waiting for a person by name Mahadev. During the course of cross-examination, sofar as this core aspect is concerned, nothing more has been elicited, except stating that this witness or anyone of the witnesses have seen any person or any customer approaching the accused and that accused was using or trafficking in said currency notes at that particular point of time.
9. P.W.1-Jyotiba Nikkam is the person who assisted the Investigating Officer. He has, in fact, reiterated the aspects narrated by P.W.7.
10. P.Ws.2 and 3, who are the panch witnesses, turned hostile to the case of the prosecution. Nevertheless, it is curious to look into their evidence, which discloses that, on that particular day, these two witnesses were secured by the police near a petrol 8 bunk and the police have taken photographs and also their signatures on the mahazars and also M.Os.1 to 4 covers under which the said currency notes were seized and sealed by the police. The photographs were shown to the witness and they identified themselves in the said photograph. The photographs also show the presence of the appellant-accused No.1. Though this witness has stated that he does not know the contents of the panchanama, nevertheless, these two witnesses have admitted their presence, and their signatures to Ex.P.1 and also the signatures on M.Os.1 to 4. These witnesses also identified their presence in the photographs along with accused No.1. Therefore, it clearly goes to show that the police officers and the raiding party had been to that particular place, where accused No.1 was very much present, and that they drew panchanama seized M.Os.1 to 4 and thereafter the signatures of P.Ws.2 and 3 were taken. Though P.Ws.2 and 3 have turned hostile, their evidence, in the 9 examination-in-chief corroborates the evidence of the Investigating Officer as well as other raiding party.
11. There is no much cross-examination sofar as P.Ws.1 and 7 are concerned with reference to these aspects. Though, lot of suggestion were made to these to the effect that, they have created a case against the appellant and other aspects with reference to topography of the place etc., but, all these questions have been properly answered by the Ivnestigating Officer. There is no evidence on the part of the Investigating Officer with reference to the false implication of the accused in any manner. There is no suggestion to P.Ws.1 and 7 that they have falsely implicated accused No.1. It is not that the accused is a habitual offender, or that the real accused persons in this case were not traceable, therefore, a false implication has been made by the Investigating Officer. The appellant-accused No.1 is altogether a stranger to the Investigating Officer and only on that particular 10 day, the Investigating Officer had an occasion to see accused No.1/appellant. Therefore, no ill intention can be attributed on the conduct of the Investigating Officer. When a public servant, while discharging his duties as such, exercises his powers and conducts the investigation, seizes some articles from the accused persons, the presumption is that he has discharged his duties in accordance with law, unless any rebuttal evidence is adduced to show his misconduct. Therefore, normally such public servants have to be believed with regard to their work being discharged in accordance with law.
12. Having such materials on record and there being no other material to show that the accused has been falsely implicated, I do not find any strong reason to differ from the view taken by the Trial Court. hence, the judgment of conviction passed by the learned Sessions Judge, is proper and correct.
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13. However, the learned counsel for the appellant-accused No.1 is right in submitting before this Court that even accepting the case of the prosecution, the offence under Section 489B of IPC is not made out; at the most, it may fall under Section 489C of IPC. Therefore, the conviction and sentence for the offence under Section 489B, according to the learned counsel, is not correct.
14. In order to attract Section 489B of IPC, the allegations should make out following ingredients, which are mentioned in the said provision. The said section reads as under :
"489B. Using as genuine, forged or
counterfeit currency-notes or bank-notes.--
Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a 12 term which may extend to ten years, and shall also be liable to fine."
This provision clearly indicates that there must be selling, buying or receiving by the accused from any other person or otherwise the accused traffics in or uses the forged or counterfeit currency notes or bank notes as genuine knowing or having reason to believe the same to be forged or counterfeit, then only he is punishable under Section 489B of IPC.
15. Section 489C speaks about the possession of forged or counterfeit currency-notes or bank-notes, which reads as under:
"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 13 description for a term which may extend to seven years, or with fine, or with both." In order to attract this provision, a person must be in possession of 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.
16. Therefore, considering the above said two provisions, applying them to the facts of the present case, there is, absolutely, no allegation in the evidence of P.W.7 that the accused was selling to, or buying, or receiving from, any other person the said counterfeit currency notes or that the accused used the said currency notes as genuine or trafficked in with the said currency notes in order to attract Section 489B. However, it is made clear that the accused-appellant was found in possession of the counterfeit currency 14 notes and the police officer has reason to believe that the same were counterfeit and were intended to be used as genuine. P.W.7 has categorically stated that the accused has disclosed, at the time of seizure, that he was in possession of the said currency notes and he was also waiting for somebody to use the said currency notes as genuine. Therefore, intention of the accused can be gathered from the evidence of P.W.7 that accused might have only intended to use the same as genuine currency notes. But, actually, the use of the said currency notes, trafficking in, selling is not established in this particular case. Therefore, the Trial Court has mistook itself in analyzing the evidence on record and erred in holding that the offence falls under Section 489B of IPC. Actually, as could be seen from the evidence on record, the offence falls under Section 489C of IPC.
17. The offence under Section 489B of IPC is punishable with imprisonment for life or with 15 imprisonment of either description for a term which may extend to ten years, whereas Section 489C is punishable with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The offence under Section 489C of IPC is punishable with lesser punishment when compared to the offence under Section 489B of IPC.
In view of the above said facts and circumstances, on re-appreciation of the material on record, I do not find any reasons to interfere with the opinion of the Trial Court, regarding the judgment and conviction, however, it requires to be modified in view of the above observation. Hence, the following order:
Order The appeal is partly allowed. The appellant- accused No.1 is convicted for the offence under Section 489C of IPC instead of 489B of IPC. The sentence passed by the Trial Court sentencing the accused to undergo rigorous imprisonment for three years and to 16 pay fine of Rs. 2000/-, with default clause holds good even for the offence under Section 489C of IPC and, hence, the said sentence is not disturbed.
Sd/-
JUDGE KMS/MNS