Kerala High Court
Mujeeb Rahman And Another vs State Of Kerala on 17 August, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934
CRL.A.No. 1398 of 2011
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[AGAINST THE JUDGMENT IN SC.222/2006 of ADDL. SESSIONS COURT, THRISSUR
(FAST TRACK COURT NO.II, ADHOC)]
APPELLANTS(S)/ACCUSED 1 AND 2:
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1. MUJEEB RAHMAN AND ANOTHER
KUMBALAPARAMBIL HOUSE, VELOOPADAM DESOM, THRISSUR.
2. PRAVEEN, S/O.KRISHNAKUTTY NAIR,
KAITHAKKAT HOUSE, WEST CHALAKUDY VILLAGE
MUTHOLI DESOM, THRISSUR.
BY ADVS.SRI.SHABU SREEDHARAN
SRI.C.K.PRASAD
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.P.M.SANEER.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-08-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.1398 of 2011
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Dated this the 17th day of August, 2012
JUDGMENT
The above appeal is at the instance of accused Nos.1 and 2 in S.C.No.222 of 2006 of the court of the Additional Sessions Judge, Thrissur (Fast Track Court-II, ADHOC) as they are aggrieved by the judgment dated 27.7.2011 of the said court by which the learned Judge convicted the first accused/appellant for the offence under Section 489C of I.P.C., whereas the second accused was convicted for the offences under Sections 489C and D of I.P.C.
2. In fact, crime No.53 of 2000 of the Cherpu Police Station was registered against four accused for the offences punishable under Sections 489 A,B,C and D and Section 120B of I.P.C. read with Section 34 of I.P.C. The above crime was registered on the allegation that the accused entered into a criminal conspiracy to counterfeit the currency notes and in pursuance of the said conspiracy and in Crl.A.No.1398 of 2011 :-2-:
furtherance of their common intention, counterfeited the currency notes and were found in possession of counterfeit currency notes and instruments for the purpose of making counterfeit notes in building No.XXIV/463 of Chalakudy Municipality on 26.2.2000. On the basis of the above crime, investigation was undertaken and finally, the charge was laid for the said offences in the Judicial First Class Magistrate Court-I, Thrissur, wherein on receipt of the report, C.P.No.16/2005 was instituted and subsequently, the learned Magistrate committed the case to the Sessions Court, except the case against the third accused as he was absconding and accordingly, SC No.222/2006 was instituted. When the accused appeared, pursuant to the summons issued, accused Nos.1,2 and 4 appeared and they were granted bail and subsequently, after hearing the prosecution as well as the defence, a formal charge was framed against accused Nos.1,2 and 4, who faced the prosecution for the offences punishable under Sections 489A,B,C and D and Crl.A.No.1398 of 2011 :-3-:
120B I.P.C. read with Section 34 of I.P.C. When the said charge was read over and explained to them, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 17 and producing Exts.P1 to P42 documents. Mos.1 to 130 series were also got identified and marked as material objects. After questioning the accused under Section 313 of Crl.P.C. and during the stage of defence evidence, from the side of the defence, DW1 was examined and Exts.D1 to D3 were marked. On the basis of the evidence and materials on record and on the basis of the rival contentions, the trial court formulated 7 points for its consideration. Finally, the trial court has found that the prosecution has succeeded in substantiating the charge against the first accused for the offence punishable under Section 489C of I.P.C. and for the offences under Sections 489C and D in respect of the second accused. With respect to fourth accused, the trial court has found that she is not guilty for the Crl.A.No.1398 of 2011 :-4-:
offences punishable under Sections 489A to D of I.P.C. and accordingly, she is acquitted under Section 235(1) of the Cr.P.C. Similarly, the first accused is also found not guilty for the offences punishable under Sections 489A,B and D of I.P.C. and thus, he is acquitted under Section 235(1) of the Cr.P.C. for the said offence. Again, the second accused was also found not guilty for the offences punishable under Sections 489A and B of I.P.C. and thus the second accused is also acquitted under Section 235(1) of the Cr.P.C.
3. In the light of the above finding and as no separate sentence is awarded for the offence under Section 120B of I.P.C., it can be presumed that the accused are not found guilty for the offence under section 120B even though there was a specific charge to that effect. In this juncture, it is relevant to note that though in the charge, Section 120B is incorporated and the first point formulated for determination is to the effect that whether the Crl.A.No.1398 of 2011 :-5-:
accused entered into a criminal conspiracy to commit the offences punishable under Sections 489A to D as alleged by the prosecution, there is no specific finding under the above point though it is stated in paragraph 23 of the judgment of the trial court that point Nos.1 to 6 are found accordingly. Suffice to say, it is relevant to note that paragraph 19 of the impugned judgment starts with the following words. The prosecution has not adduced any evidence regarding the offence of criminal conspiracy.
4. Thus, on such finding of guilt of the first accused for the offence under Section 489C and that of the second accused for the offences under Sections 489C and D, each of them is sentenced to undergo rigorous imprisonment for a period of two years each under Section 489C of I.P.C. In addition to that, the second accused is also sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.50,000/- and in default, he is directed to undergo simple imprisonment for six months for Crl.A.No.1398 of 2011 :-6-:
the offence under Section 489 D of I.P.C. It is ordered that the sentence imposed against accused No.2 under Sections 489C and D of I.P.C. shall run concurrently and set off is allowed.
5. To buttress the allegation against the accused, the prosecution mainly depends upon its star witness PW1 and also the connected documents. PW1 was the then C.I.of Police, Cherpu Police Station, who detected the offence. When he was examined, he had deposed in support of the prosecution allegation. According to him, on 26.2.2000 at about 6 p.m. on getting telephonic message, himself and members of the Special Investigation Team headed by him proceeded to Oorakam and found the first accused with a mobile phone near the State Bank of Travancore, Oorakam Branch and according to him, on search of the body of the first accused, 19 fake currency notes of the denomination of `500/-, which are concealed in a polythene cover, were found in the fold of his dothi and consequently, he arrested Crl.A.No.1398 of 2011 :-7-:
the first accused as per Ext.P2 arrest memo and seized the counterfeit notes under Ext.P1 mahazar. According to PW1, since several local people gathered at the spot, he took the accused in the police jeep near to the premises of the Peruvanam temple and when questioned the first accused, it was told by the accused that the counterfeit notes, which are recovered from the possession of the accused, were given by a person from Chalakudy. It is the further case of PW1 that after recording the above submission of the first accused, himself and party reached in the Police Station and Ext.P3 statement was recorded based upon which a crime was registered for the offence under Section 489 C read with Section 34 of I.P.C., as per Ext.P3(a) F.I.R. According to PW1, the second stage of the investigation under which the second accused was arrested starts from the stage of registration of Ext.P3(a) F.I.R.
6. According to PW1, after registering Ext.P3(a) FIR, he had prepared Ext.P4 search memo and thereafter, himself and party Crl.A.No.1398 of 2011 :-8-:
went to Chalakkudy with the first accused Mujeeb Rahman as led by him and on pointing out House No.XXIV/463 by the first accused towards the said house and on ringing the calling bell, the second accused came out of the house and thereupon, PW1 arrested the second accused as per Ext.P5 arrest memo. It is the further case of PW1 that thereafter, the second accused took out 1083 counterfeit currency notes of `500/- denomination from beneath a cot in his bed room and also colour monitors of a computer and also series of accessories of a computer, which were placed over the cot and Aluminium foil printer and its accessories, and a glass of size of 26x36 cms., another glass of the size of 37x27 cms. with ink spread over them and Aluminium roll and implements for counterfeiting notes, which were placed in the store room and handed over the same to him, and thus, those items were seized by preparing a search list. With respect to the seizure, from the first accused, the prosecution has, as I indicated earlier, Crl.A.No.1398 of 2011 :-9-:
produced certain documents and the same were marked through PW1. Thus, during the examination of PW1, with respect to the first stage of the investigation i.e.,the arrest of the first accused and the seizure of the counterfeit notes, following documents viz., Ext.P1 seizure mahazar, Ext.P2 arrest memo with respect to the first accused, Ext.P3 F.I. Statement and Ext.P3 (a)F.I.R were marked. PW1 has also identified 19 fake currency notes of denomination of `500/- allegedly recovered from the person of the first accused and the same were marked as MOs.1 to 12 series. MO14 is the mobile phone allegedly used by the first accused. MO13 is the polythene cover, which is allegedly found in the fold of the dhothi worn by the first accused.
7. As I indicated earlier, the second stage of the investigation started after registering Ext.P3(a) F.I.R. and according to PW1, the search was conducted, after preparing a search memo, which is marked as Ext.P4. Ext.P5 is the arrest memo with respect to the Crl.A.No.1398 of 2011 :-10-:
second accused. Mos.15 to 100 series are the counterfeit currency notes of denomination of `500, 1083 in number. According to PW1, MO1 series of colour monitors of a computer recovered from beneath the cot of the second accused in the bedroom. Mos.102 to 113 series are the accessories of a computer, which was placed over the cot. Following materials are also allegedly recovered from the said house, viz., MO.112 Aluminimum foil printer and its accessories, MO113 glass of size of 26X36 cms. MO114 glass of size of 37X27 and MO115 Aluminium roll and finally, the implement of counterfeit notes which are placed in the store room which were handed over to PW1, are identified and marked as MOs.116 to 128. The above material objects are seized as per the search list which is mentioned as Ext.P6.
8. It is the further case of PW1 that after the seizure of the material objects from the above house, he contacted System Expert and summoned him from the D.I.G.Office, Thrissur and after Crl.A.No.1398 of 2011 :-11-:
ascertaining the password from the second accused viz.,'Praveen' and by using the said password, got operated the computer and printer seized as per Ext.P6 search list and made fake notes and thus, according to PW1, the fake notes, so got, resembled as MOs.1 to 100 series and the fake notes, so got, were burnt off by himself. According to PW1, thereafter, they proceeded to the Police Station and prepared Ext.P7 remand report with respect to first and second accused and produced them before the court and obtained the custody of the second accused on the basis of Ext.P8 order. It is the further claim of PW1 that in pursuance of Ext.P11 disclosure statement made by the second accused and as led by him, PW1 had effected recovery of the pocket diary of the second accused from the above said house. Thus, MO129 is the pocket diary so recovered and Ext.P11(a) is the mahazar for recovery of MO129 pocket diary. According to PW1, second accused has also made another disclosure statement and the same is marked as Crl.A.No.1398 of 2011 :-12-:
Ext.P13(a) and pursuant to that statement, PW1 has claimed that he had effected the recovery of the copy of the cash bill of the colour printer from Esquire Associates, Thrissur and Ext.P13 is the mahazar for the seizure of the said cash bill. According to PW1, he had also seized Ext.P15 rent deed dated 14.8.1998 with respect to the above office as per Ext.P14 mahazar. According to PW1, the said rent deed was produced by one Manjooran Devassy and the same was executed by the fourth accused. It is also the claim of PW1 that he had also seized MO130, copy of the rent deed with respect to Building No.XXIV/463 of the Chalakkudy Municipality as per Ext.P18 mahazar, PW1 has also deposed that fourth accused Sushama and one child were seen residing with second accused in House No.XXIV/463 of the Chalakkudy Municipality.
9. Pws.2 and 3 are the members of the Special Investigation Team, who followed PW1. When Pws.2 and 3 were examined, they have deposed more or less in the same way deposed by PW1. Crl.A.No.1398 of 2011
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Pws.4 and 5 are the independent witnesses, who are the attestors to Ext.P1 mahazar, but when they were examined, they turned hostile towards the prosecution though they have admitted their signature in Ext.P1. They have deposed denying to have witnessed the seizure of Mos.1 to 12 counterfeit notes from the possession of the first accused. PW6 is another witness cited and examined by the prosecution as the attestor to Ext.P6 search list. But, PW6 also turned hostile against the prosecution. PW7 is another witness, who is an attestor to Ext.P6 search list. When he was examined, he had identified his signature in Ext.P6 search list and he had also deposed that he had seen Police apprehending second accused with computer and other articles. PW8, who is a witness to the seizure of the articles, turned hostile to the prosecution, when he was examined. Suffice to say, he is not an attestor to Ext.P6. MO130, copy of the rent agreement was marked through PW7, a retired Headmaster. According to him, the building covered by MO130 is Crl.A.No.1398 of 2011 :-14-:
belonging to her daughter Ambika, which was rented out to the second accused Praveen on a monthly rent of Rs.2000/-. According to PW1, the original of MO130 is with accused No.2.
10. PW10 is the proprietor of Esquire Associates and his evidence shows that Ext.P12 bill was issued from his establishment and according to him, the color laser printer mentioned in Ext.P12 bill was sold to M/s.Cybertek, Chalakudy and his evidence is not sufficient to hold that whether the color laster printer covered by Ext.P12 was purchased by A2. As PW10 did not support the prosecution, he was also declared as hostile. PW11 is another witness examined to show that Ext.P12 bill relates to the sale of computer to M/s.Cybertek, South Chalakudy. PW11 has also identified his signature in Ext.P13 mahazar for the seizure of Ext.P12 bill.
11. PW12 is the successor in office of PW1 and according to PW12, he had seized Ext.P29 and Ext.P30 which are copies of Crl.A.No.1398 of 2011 :-15-:
bills, by which the second accused purchased the accessories of computers from the shop of charge witness No.21 situated at Ernakulam. As per Ext.P39 mahazar, the above articles were produced before the court as per Ext.P31 proeperty list. PW13 is the attestor to Ext.P17 mahazar, by which Ext.P15 rent deed was seized from the house of one Manjooan Devassy, who is CW19.
12. PW14 is the Assistant Professor of the Computer section of the Government Engineering College, Thrissur. When he was examined, he had deposed that he inspected the computers allegedly seized from the possession of the second accused Praveen and he had issued Ext.P32 report. The deposition of PW14 shows that the computers were equipped with software for image manipulation and PW14 had operated one computer by using the password viz., 'Praveen'. The further details of the facilities equipped in the computers are also stated in Ext.P32 report. PW15 the Deputy Superintendent of Government Press, Crl.A.No.1398 of 2011 :-16-:
Shornur and according to him, he had inspected MO112 Heater machine at the office of the Judicial First Class Magistrate Court-I, Thrissur and he had issued Ext.P33 report.
13. PW17 is the then Detective Inspector attached to the CBCID, SIG-3, Kozhikode, who conducted the investigation as per the order issued by the Superintendent of Police, CBCID (CFS), Ernakulam. When PW17 was examined, Ext.P36 forwarding note for sending the counterfeit notes to the Bank Note Press, Dewas, Madhya Pradesh for examination, Ext.P37 report obtained from the said press, Exts.P38 and P39 forwarding notes for sending printer for expert opinion, Ext.P40 report for adding Section 489A to D and 120B read with Section 34 of I.P.C., Ext.P41 report for dealing one Mani from the array of accused and for adding Sushama as accused No.4 in the crime and Ext.P42 forwarding note not for sending computers and accessories for expert opinion, have been proved through him. It was PW17, who laid the charge on Crl.A.No.1398 of 2011 :-17-:
completing the investigation.
14. As I indicated earlier, during the time of defence evidence, DW1 was examined and his deposition shows that Building No.XXIV/342 situated at Chalakkudy is belonging to him and the said building was rented out to one I.T.Unnikrishnan, on a monthly rent of Rs.2500/- as per Ext.D1 rent deed. According to PW1, the said Unnikrishnan is running a DTP centre in the said building by name and style Cybertek. According to him, during the month of February 2000, Police have seized the accessories of computers and printer from the said building. These are the evidence and materials on record which were considered by the trial court.
15. Advocate Sri.Shabu Sreedharan, learned counsel for these appellants vehemently submitted that the prosecution has miserably failed to prove its allegation beyond reasonable doubt. In support of the above submission, the learned counsel submitted Crl.A.No.1398 of 2011 :-18-:
that the search and seizure and arrest of the first accused have not been proved properly and beyond doubt. In support of the above contention, against the alleged seizure of the counterfeit notes from the first accused and the search, seizure connected therewith and the arrest of the accused, after taking me through Ext.P1 seizure mahazar, Ext.P3 F.I.statement, Ext.P3(a) FIR, the learned counsel submitted that regarding the information claimed to have received by PW1, the exact time of the information received, seizure and arrest, there is no cogent evidence. It is also the submission of the learned counsel that no document is produced to show the constitution of special team. According to the counsel, the evidence of PW1 is insufficient to show that when he conducted the search of person of the first accused, he was free and he was not having any material or goods with him, though Pws.1 to 3 have undergone such a process and demonstration before the seizure from the house in question. It is also the submission of the learned Crl.A.No.1398 of 2011 :-19-:
counsel that the prosecution has no case as to why the first accused is seen to be stood near SBT, Oorakam with the counterfeit notes. It is also the submission of the learned counsel that there is no proper investigation regarding the telephone call gone out of the mobile phone held by accused No.1. Thus, according to the counsel, the alleged seizure of Mos.1 to 14 from the first accused cannot be believed as the same are not free from doubt.
16. It is the further contention of the counsel that even according to the prosecution, the seizure and recovery were effected from House No. XXIV/342 on the basis of the information allegedly conveyed by the first accused, but that story of prosecution cannot be believed due to inherent defect that emerges from the prosecution's own documents. It is also the submission of the learned counsel that even the entire prosecution case is admitted as true and the evidence are accepted as correct, there is nothing to connect the second accused with the alleged seizure of Crl.A.No.1398 of 2011 :-20-:
the counterfeit notes and the implements from the house No. XXIV/342. Thus, the counsel submitted that the trial court miserably failed to consider the above vital aspect and the drawback of the prosecution case and erroneously found that the prosecution has succeeded in proving its case against the accused under Section 489C and 489D. Thus, according to the counsel, the appellants/accused are entitled to get a clear acquittal.
17. On the other hand, the learned Public Prosecutor Sri.P.M.Saneer, submitted that the available evidence and materials supported by the evidence of Pws.1 to 3 show that Mos.1 to 14 were recovered from the physical possession of accused No.1 and he has no explanation as to how the said counterfeit notes came into his possession and therefore, according to the learned Public Prosecutor, the findings of the court below against the first accused are absolutely correct and such finding is supported by the evidence and materials on record. It is the further submission of Crl.A.No.1398 of 2011 :-21-:
the learned Public Prosecutor that the counterfeit notes and implements for counterfeiting the notes were recovered from the house which was under the control of the second accused. It is also the submission of the learned Public Prosecutor that many of the articles seized from the prosecution records were produced by the second accused. According to the learned Public Prosecutor, the evidence and materials collected and produced by the prosecution unerringly point towards the involvement of the second accused in the manufacturing of counterfeit notes and therefore, the finding of the court below is absolutely correct and no interference is warranted.
18. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor. I have carefully perused the judgment of the trial court and scrutinised the evidence and materials on record.
19. In the light of the arguments advanced from the side of Crl.A.No.1398 of 2011 :-22-:
the counsel for the appellant as well as the prosecution and in the light of the evidence and materials available on record, the question that emerges for consideration is whether the trial court is correct and justified in its finding and convicting the first appellant for the offence under Section 489C as well as convicting the second accused for the offence under Sections 489C and D of I.P.C. The substance of the allegation of the prosecution is that on getting information by PW1and party that the first accused is standing near the SBT Branch at Oorakam with counterfeit notes, PW1 and party proceeded to the spot and Mos.1 to 12 counterfeit notes were seized from the physical possession of the first accused and on his questioning after his arrest, he disclosed the source of the said counterfeit note as the one given by one man from Chalakudy and as led by the first accused, PW1 and party proceeded to the house in question and recovered the other set of counterfeit notes and the implements for counterfeiting the notes Crl.A.No.1398 of 2011 :-23-:
and therefore, the accused four in numbers have committed the offences punishable under the above heads and also under Section 120 B of I.P.C.
20. At the outset, it is to be noted that though in the police report as well as in the court charge, the offence under Section 120B was incorporated, there is no positive finding in the judgment of the trial court that the accused have committed the offence punishable under Section 120B or Section 34 of I.P.C. and they were not convicted thereunder and no sentence is awarded for the said offence. Suffice to say, as I indicated earlier, in paragraph 19 of the trial court judgment, with the opening words, the learned Judge has found that the prosecution has not adduced any evidence to attract the ingredients of Section 120B. So the present findings against the appellants/accused and the evidence and materials have to be appreciated in the above background. I have already referred to the evidence of PW1 and connected documents. As I indicated Crl.A.No.1398 of 2011 :-24-:
earlier, the first stage of the investigation in the above crime is with respect to the alleged search and seizure of Mos.1 to 12 counterfeit notes from the possession of the first accused and his alleged arrest. Going by the evidence of PW1, it can be seen that even according to PW1, a Special squad was constituted for detecting the offence connected with counterfeiting of currency and thus, the special squad, so constituted, have made arrangements to collect details so as to detect such crimes. But, in the present case, according to PW1, the information with respect to the first accused was received by him, but he has no claim that he had reconveyed the said information to any higher officials who are in charge of the special team constituted. No explanation is forthcoming from PW1, why he proceeded to the spot to search A1 instead of conveying information to the officials of the special team. Suppose, if the evidence of PW1 was to the effect that if such a practice is adopted, the first accused is likely to escape from the Crl.A.No.1398 of 2011 :-25-:
spot, we can understand his option to proceed to the said spot instead of informing the special team. Regarding the nature of the information, there is no evidence in the deposition of PW1. As rightly pointed out by the counsel for the appellant, regarding the exact time of the information received by PW1, there is no parity between the documents relied on by the prosecution. In Ext.P1 seizure mahazar and Ext.P3 F.I.statement, time at which PW1 received information is noted as 6 p.m. whereas in Ext.P3(a) F.I.R., the time is shown as 5 p.m. It is also relevant to note that the evidence of PW1, as to how he came into possession of MOs.1 to 12 counterfeit notes, is also not satisfactory and his evidence is not supported by other official witnesses, who accompanied PW1 at the time of the alleged seizure and the document has also not approved the version of PW1 in this regard. PW1 says, during the chief examination itself, that while PW1 was conducting body search of the first accused, something is seen concealed in the fold Crl.A.No.1398 of 2011 :-26-:
of his dhoti. Then he asked the accused to take out the same and the same was shown, after taking it out. Thus, when the accused had taken it out and shown, he had seen 19 counterfeit notes of Rs.500/- denomination in a polythene cover. But, Pws.2 and 3 say that it was detected and taken out by PW1 through the body search. In Exts.P1 seizure mahazar and P3 F.I.statement, what recorded is that it was detected and taken out by PW1. So the prosecution evidence regarding the mode for effecting the recovery is not satisfactory and the same is inconsistent. The contention raised by the counsel for the appellant to doubt the entire seizure is that Ext.P2 arrest memo contained crime No.53/2000 and the prosecution has no explanation as to how Ext.P2 arrest memo, which is prepared at the spot contained the crime number. Suffice to say, the prosecution has no explanation as to how Ext.P2 arrest memo with respect to the arrest of the accused, which is allegedly prepared from the place of occurrence, contained the crime Crl.A.No.1398 of 2011 :-27-:
number. It is also relevant to note that Pws.4 and 5, the independent witnesses who were cited and examined to prove the seizure from the possession of accused No.1, turned hostile. Thus, there is no independent evidence in support of the prosecution allegation that Mos.1 to 12 were seized from the physical possession of the first accused. If that be so, the court has to consider every minute aspect of the prosecution allegation to find out that it is safe to act upon the evidence of the prosecution, which is brought on through the official police witnesses to convict a person for the offence particularly in this nature alleged against them. I have already referred to the circumstances and also the infirmities that are seen in the documentary evidence and also the contradiction in between the ocular evidence and also the documentary evidence. In this juncture, it is relevant to note that the trial court has already found that the prosecution has not succeeded in proving its allegation of conspiracy against the first Crl.A.No.1398 of 2011 :-28-:
accused and the other accused. If that be so, it is for the prosecution to prove beyond reasonable doubt as to how the first accused came into the possession of counterfeit notes. The prosecution has not also proved as to for what purpose, the first accused was found in possession of counterfeit notes and how he happened to be there at the place of occurrence. Regarding all these aspects, absolutely, there is no evidence and the prosecution has a definite case. It is also relevant to note that with respect to the alleged seizure of the counterfeit notes from the alleged possession of the second accused, Pws.1 to 3 have to undergo the process to convince the witness that no counterfeit notes were with them, but in the present case, no such course is adopted. Since Ext.P2 arrest memo contained crime number, especially in the absence of any convincing explanation from the side of the prosecution as to how the crime number finds a place in Ext.P2, though the same is prepared in the place of occurrence, I am Crl.A.No.1398 of 2011 :-29-:
unable to believe the prosecution allegation that Mos.1 to 12 were seized from the physical possession of the first accused from the place of occurrence. With respect to the mode of seizure of counterfeit notes from the physical possession of the first accused, there is no consistent version for PW1 as well as Pws.2 and 3. The evidence of PW1 in this regard is also contrary to Ext.P1 seizure mahazar and Ext.P3 F.I.statement. There is also no independent evidence to corroborate the evidence of PW1 or Pws.2 and 3. Therefore, according to me, the trial court is incorrect and improper in convicting the first accused for the offence under Section 489C.
21. As I stated above, the second stage of the investigation, ie., with respect to the seizure of counterfeit notes from the second accused starts on the arrest and questioning of the first accused and after registration of Ext.P3(a) crime. According to PW1, he proceeded to the house of the second accused on the basis of the Crl.A.No.1398 of 2011 :-30-:
disclosure statement made by the first accused on his interrogation after his arrest. Learned counsel for the appellant raised several points against the case of the prosecution with respect to the alleged seizure of counterfeit notes from the second accused. Though PW1 has deposed before the court that the first accused has deposed about his source for the counterfeit notes as the same was given by one man from Chalakkudy, no such statement is recorded by PW1. In this juncture, it is relevant to note that according to PW1, after the arrest of the first accused, as there were several local people gathered, the first accused was taken to a nearby place viz., the premises of Peruvanam temple and he was questioned and at that time, the first accused divulged the information. It is pertinent to note that it is, after questioning the first accused as claimed by PW1, PW1 and party along with the first accused proceeded to the Police Station and recorded Ext.P3 F.I.statement, based upon which he had registered Ext.P3(a) F.I.R. Crl.A.No.1398 of 2011
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But, neither in Ext.P3 F.I.statement nor in Ext.P3(a) F.I.R., PW1 has recorded about the revelation of the information by the first accused. It is also relevant to note that when PW1 was examined, he had deposed that the said statement of the first accused was recorded. Suffice to say, such a document has not been produced so far during the trial. But, in Ext.P7 remand report, which was prepared by PW1, it is stated that the first accused made such a statement, on questioning him, after recording Ext.P3 F.I.statement. So with respect to the revelation of the information, that the first accused got the counterfeit note from a person from Chalakkudy, there is no convincing and satisfactory evidence. So, the very basis of the prosecution case with respect to the second stage of the investigation and the allegation against the second accused are doubtful due to the paucity of convincing and satisfactory evidence.
22. It is also relevant to note that going by the evidence Crl.A.No.1398 of 2011 :-32-:
of PW1, it can be seen that what revealed by the first accused is to the effect that ' Note-
.
." But, it is relevant to note that the name of the person, whereabout of that person etc. are not discernible from the above revelation statement. Therefore, I am unable to understand as to how PW1 and party reached in front of the house viz., House No. XXIV/342. It is also relevant to note that no description of the second accused was given by the first accused. But, the evidence of PW1 shows that when PW1 pressed the calling bell, the second accused came out and he was arrested. So, that part of the evidence of PW1 including the arrest of the second accused, according to me, cannot be swallowed without a pinch of salt. The remaining part of the evidence regarding the seizure of the counterfeit notes and other materials, according to me, have no Crl.A.No.1398 of 2011 :-33-:
evidentiary value at all. It is relevant to note that even according to prosecution, in House No.XXIV/342, several persons were residing at the relevant time. The prosecution has no case that it was exclusively within the possession and control of the second accused. Even Exts.P14 to P16 documents are not sufficient to hold that the said house is within the possession and control of the second accused. No independent witness supports the prosecution allegation and claims that the materials referred to in Ext.P6 were seized from the exclusive possession of the second accused. Ext.P12 bill recovered as per Ext.P13 mahazar shows that the purchaser of MO1 is by M/s.Cybertek, South Station, Chalakkudi. Absolutely, there is no evidence to show that second accused has got any connection with the said Cybertek mentioned in Ext.P12 bill. The evidence of DW1 shows that he had rented out the building to some person, who in turn rented out the building to Cybertech. It is also relevant to note that when PW10 was Crl.A.No.1398 of 2011 :-34-:
examined, though he is a hostile witness, had deposed that the person, who purchased MO1 as per Ext.P12 can be identified on site, but he has confirmed that no such person was present in the court. So the evidence produced by the prosecution, to connect the second accused with the currency notes Mos.15 to 100, which are counterfeited, and recovery from the possession of the second accused is absolutely insufficient and unacceptable. As I indicated earlier, the very basis of the prosecution case to connect the second accused is based upon the alleged information furnished by the first accused which I have already found is not proved properly and satisfactorily. Even if the same is admitted as correct and true, the materials produced and relied on by the prosecution to connect the second accused with Mos.15 to 100 are also not acceptable and acted upon as the same has no evidentiary value to connect the second accused. No positive and cogent evidence is adduced by the prosecution to establish that Mos.15 to 100 and Crl.A.No.1398 of 2011 :-35-:
other material objects and documents seized from there are under the exclusive control and possession of the second accused. Therefore, I am unable to confirm the finding of the learned Judge of the trial court against accused No.2 as well.
In the light of the foregone discussions and the evidence and materials referred to above, I am of the firm opinion that the prosecution has not succeeded in discharging their traditional duty to prove its allegation against the appellants beyond reasonable doubt. Therefore, I am unable to confirm the conviction recorded by the trial court in favour of the prosecution and against the appellants. Therefore, the appellants are entitled to get the benefit of doubt. Accordingly, the appellants are entitled to get an acquittal. Accordingly, extending the benefit of doubt, the appellants are acquitted of all the charges levelled against them and conviction recorded by the trial court against them is set aside.
In the result,this appeal is allowed setting aside the Crl.A.No.1398 of 2011 :-36-:
judgment dated 27.7.2011in S.C.No.222 of 2006 in the court of Additional Sessions Judge (Fast Track Court-II- ADHOC), Thrissur and the appellant/accused are acquitted of all the charges levelled against them.
Though the appellants, on previous occasion, approached this Court to suspend the execution of sentence imposed against them, the said request was rejected by this Court by order dated 9.8.2011 in Crl.M.A.No.6954 of 2011 in this appeal. It is also relevant to note that against the above order, the first appellant has approached the Honourable Apex Court and by order dated 11.10.2011, the petition for Special Leave to Appeal (Crl) No.7134 of 2011 was dismissed subject to observation contained therein. It was in the above circumstances, the above appeal is heard out of turn and disposed of.
In the light of the above order of acquittal, the second appellant/the second accused is set at liberty and the bail bond, if Crl.A.No.1398 of 2011 :-37-:
any, executed by him will stand cancelled and the first appellant, who is undergoing imprisonment in pursuance of the judgment impugned in this appeal, is entitled to get released from the jail forthwith if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Viyyur for appropriate action.
V.K.MOHANAN, Judge MBS/