Karnataka High Court
Mohammad Asif vs State Of Karnataka Rep By State Public ... on 14 November, 2013
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.865/2006 C/W
CRIMINAL APPEAL No.1321/2006
CRL.A.No.865/2006
BETWEEN:
1. MOHAMMAD ASIF
S/O CHAYABBA
AGED ABOUT 36 YEARS
BARKATH MANE
NEAR NAGABRAHMA TEMPLE
GORIGUDDE, MANGALORE
2. NASIR
S/O LATE ABDUL KHADER @ ADIAKKA
AGED ABOUT 40 YEARS
R/O KARBALA ROAD
KUDROLI, MANGALORE
3. JAMEER
S/O LATE JAHOOR AHAMMAD
AGED ABOUT 31 YEARS
S/O NEAR JUMMA MASJID
BUILDING, MAHAKALIPADPU
MANGALORE
4. SYED IBRAHIM
S/O SYED ABDUL RAHIMAN KHAJI
AGED ABOUT 40 YEARS
R/O KHAJI HOUSE, KHAJI MOHALLA
MURUDESHWARA, BHATKALA TALUK
KARWAR DISTRICT. ... APPELLANTS
(BY SRI S VISHWAJITH SHETTY, ADV.)
2
AND:
STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 15.04.2006 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-I, D.K.,
MANGALORE, IN S.C.NO.121/2002, CONVICTING THE
APPELLANTS/ACCUSED NOS. 1 TO 4 FOR OFFENCES
PUNISHABLE UNDER SECTIONS 489(B) & 489(C) IPC & ETC.
CRL.A.No.1321/2006
BETWEEN:
RAMESH JAIN
S/O SOHANLAL JAIN
AGED ABOUT 38 YEARS
GUNDOJIABHAG, PALI DISTRICT
RAJASTHAN STATE. ... APPELLANT
(BY SRI S VISHWAJITH SHETTY, ADV.)
AND:
STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECITON 374(2) CR.P.C.,
AGAINST THE JUDGEMENT DATED 15.04.2006 & 12.06.2006
PASSED BY PRESIDING OFFICER & DISTRICT & SESSIONS
JUDGE, FAST TRACK COURT-I, D.K., MANGALORE IN
S.C.NO.121/2002, CONVICTING THE APPELLANT/ACCUSED
NO.5 FOR OFFENCES PUNISHABLE UNDER SECTION 489(B) &
489(C) IPC & ETC.
3
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Criminal appeal No.865/2006 and 1321/2006 are filed by accused Nos.1 to 5 against the judgment of conviction for offences punishable under Sections 498-B and 498(c) of IPC. I have heard Sri.S.Vishwajith Shetty, the learned counsel for accused and learned SPP for the State.
2. Accused Nos.1 to 6 were tried for the aforesaid offences. Accused No.6 was acquitted. The State has not filed an appeal against accused NO.6. The accused were tried for the following charges:
"Firstly, that on 20.3.2002, at about 14-15 hours (i.e., at about 2.15 P.M), on the basis of credible information when CW-1 the P.S.I. of Mangalore South P.S along with his staff CWs 9 to 17 and 19 raided Room No.101 of Hotel Intercity situated in Nellikai Road of Mangalore City, you accused No.1 Mohammed Asif were found possessing counterfeit notes, you accused No.2 Nasir were found possessing 30 counterfeit 4 notes, you accused No.3 Jameer were found possessing 24 counterfeit notes, you accused No.4 Sayyed Ibrahim were found possessing 28 counterfeit notes and you accused No.5 -Ramesh Jain were found possessing 10 counterfeit notes, in all 192 counterfeit currency notes, of the face value of Rs.100/- of different serial numbers, knowing or having reason to believe the same to be forged or counterfeit notes, which were given by you accused No.6 N.Mohammad to you accused No.1 Mohammad Asif for circulation with intent to gain unlawfully, and that you accused Nos. 1 to 6 thereby committed an offence punishable under Section 489(B) of the Indian Penal Code, and within my cognizance.
Secondly, that on the above said date, time and place, you accused No.1 Mohammed Asif had in your possession 100 counterfeit notes, you accused No.2-Naseer had in your possession 30 counterfeit notes, you accused No.3 Jameer had in your possession 24 counterfeit notes, you accused No.4 Sayyed Ibrahim had in your possession 28 counterfeit notes and you accused No.5 Ramesh Jain had in your possession 10 counterfeit notes, in all 192 counterfeit currency notes of the face value of Rs.100/- of different serial numbers, forged or counterfeit currency 5 notes knowing or having reason to believe the same to be forged or counterfeit notes which were received by you accused No.1 from you accused No.6 intending to use the same as genuine or that it may be used as genuine for unlawful gain and thereby you accused Nos. 1 to 6 have committed an offence punishable under Section 489(C) of the Indian Penal Code.
3. In view of acquittal of accused NO.6 and conviction of accused Nos.1 to 5, following points would arise for determination:
(1) whether the prosecution has proved that on 20.3.2002 at 2.15 p.m. accused 1 to 5 were found in possession of counterfeit currency notes of 100 denomination in Room No.101 of Hotel Intercity, Mangalore with an intention to circulate the counterfeit currency notes as genuine currency notes, thereby committed an offence punishable under Section 489 of IPC.
(2) whether the prosecution has proved that accused Nos.1 to 4 as aforesaid, were in possession of counterfeit currency notes of 100 denomination in room NO.101 of Hotel Intercity, Mangalore as stated in point No.1, having reasons to believe they are forged / counterfeit 6 currency notes with an intention to use the same as genuine currency notes and thereby committed an offence punishable under Section 498(c) IPC.
(3) Whether the learned Trial Judge has properly appreciated evidence?
(4) what order?
4. Sri.S.Vishwajith Shetty, learned counsel for accused, taking me through evidence of prosecution witnesses, has made the following submissions:
(i) Accused Nos.1 and 2 have elicited from cross-
examination of PWs.1 and 2 that they have been falsely implicated;
(ii) PW.9-Bhandary, Police Inspector had grudge against accused Nos.1 and 2 who are mutton merchants and they had demanded money from PW.9 towards the price of mutton supplied to PW.9;
(iii) The independent witnesses said to be present at the time of raid and seizure of counterfeit currency notes 7 from the possession of accused in room No.101 of Hotel Intercity, have not supported the case of prosecution;
(iv) The prosecution has not examined Parameshwara (ASI, Anti Rowdy Squad, Mangalore) who is said to have received credible information regarding possession of counterfeit currency notes;
(v) In view of acquittal of accused No.6 for an offence punishable under Section 489-B IPC, the prosecution has failed to prove that the accused were either selling or purchasing counterfeit currency notes. In the circumstances, the learned Trial Judge should not have convicted accused Nos.1 to 5 for an offence punishable under Section 489-B IPC.
(vi) There are discrepancies in entries relating to check-in and check-out of occupants of Hotel Intercity on 19.3.2002 and 22.3.2002 in the extract of Hotel Register.
(vii) The evidence of Investigation Officer and other witnesses in proof of seizure of counterfeit currency notes 8 from the possession of accused Nos.1 to 5 does not inspire confidence.
(viii) The evidence of Investigating Officer in proof of presence of accused Nos.1 to 5 in room No.1 of Hotel Intercity at the relevant time does not repose confidence;
(ix) The trial Court should have accepted the evidence adduced by accused that they were apprehended at different places and that they were falsely implicated in the aforesaid case and for that purpose, PW9 had used the counterfeit currency notes seized in some other case;
5. The learned SPP for the State would justify the impugned judgment.
6. It is true that independent witnesses for prosecution including the staff of Hotel Intercity have not supported the case of the prosecution. The law is fairly well stated that if independent witnesses do not support the case of prosecution in relation to recovery of incriminating articles from accused by the Investigating Officer, that cannot be a 9 ground to discard the evidence of Investigating Officer and other police officials. Their evidence needs careful scrutiny and guarded approach.
7. From the evidence adduced by the prosecution, it is proved that accused Nos.1 to 3 are residents of different localities of Mangalore city. Accused No.4 is from Murudeshwar of Karwar District and accused No.5 is from Pali District of Rajasthan State. The evidence of PWs.1, 5 to 10 regarding apprehension and arrest of the accused in room No.101 in Hotel Intercity at about 2.30 p.m. on 20.3.2002 does not suffer from any discrepancy even otherwise from the order sheet of committal court, we find that accused Nos.1 to 5 were produced before the learned jurisdictional Magistrate at 3.30 p.m. on 21.1.2003 (i.e., within 24 hours including the time of journey). The accused had not complained ill-treatment to the Jurisdictional Magistrate. The accused had not stated before the jurisdictional Magistrate that they were forcibly arrested from different places and produced before the jurisdictional Magistrate. As already stated, accused Nos.1 to 3 are from 10 Mangalore City. Accused No.5 is from Rajasthan. The presence of accused Nos. 1 to 5 in the room No.101 of Hotel Intercity to some extent finds corroboration from the entries made in the hotel register. The receptionist of hotel namely PW.2 Abubacker has not supported the case of the prosecution. It is not the case of accused Nos.1 to 5 that they had occupied room No.101 of Hotel Intercity for transacting any legitimate business.
8. We have the evidence of PWs.5 to 10, in proof of seizure of counterfeit currency notes from the possession of the accused. PW.5-Ananda was working as Police Constable attached to ASI in Anti Rowdy Squad. PW5 has deposed; that he had accompanied the Assistant sub-Inspector for routine rounds. On the way the ASI received credible information that in Hotel Intercity fake currency notes are being circulated. The ASI informed the same to the Inspector of Police, Mangalore South Police Station who in turn asked the Sub-Inspector to proceed to Hotel Intercity. 11
PW.5 has deposed; that the Sub-inspector of Police Mangalore South Police Station and other members of the raiding party along with PW.5 proceeded to Mangalore Intercity Hotel near Nellikai road at Mangalore. Accused no.1 to 5 were found in the room no.101. The police inspector questioned accused no.1 to 5 of their purpose of occupying room no.101 and the purpose of their congregation. There was no satisfactory response from accused 1 to 5. The police inspector secured panchas. He searched the person of accused no.2 and found 30 fake currency notes of Rs.100/- denomination and 28 genuine currency notes of Rs.500/- denomination and one genuine currency note of Rs.1,000/- denomination. Besides they (raiding party) also found ATM Card, Cash Card and a Mobile phone and one leather purse. The police inspector seized the same from the possession of accused no.2. Thereafter, the police inspector searched the person of accused no.3 and found 24 fake currency notes of Rs.100/- denomination and 9 genuine currency notes of Rs.10/- denomination.
12
The police inspector searched the person of accused no.4 and found 28 fake currency notes of Rs.100/- denomination and 17 genuine currency notes of Rs.100/- denomination. Accused no.4 was found in possession of a Passport. The above articles were seized from accused no.4 and he has identified the Passport as MO.3 and fake currency notes as MO.2. Thereafter, they searched the person of accused no.5 and found that accused no.5 was in possession of 10 fake currency notes of Rs.100/- denomination and 2 genuine currency notes of Rs.500/- denomination. He was also found in possession of cash cards and a purse. They searched the person of accused no.1 and found 100 fake currency notes of Rs.100/- denomination which were bundled and affixed with a label of Karur Vysya Bank to make it appear that he had drawn money from Karur Vysya Bank, Pollachi Branch, Kerala State.
During cross-examination, PW.5 has reiterated the version given in examination-in-chief. PW.5 was cross- examined on the credible information received by ASI 13 Parameshwaraih (raiding party). It was suggested to PW.5 that police had not visited the Intercity Hotel at Mangalore and accused no.1 to 5 were not found in the room no.101 and they were arrested elsewhere. PW5 has denied these suggestions.
The defence of accused that police (raiding party) had not raided the hotel and accused were arrested from different places and they were falsely implicated, cannot be accepted for more than reason.
PW.5 had no grudge or ill-will against accused no.1 to 5. He did not know accused no.1 to 5 before the date of incident. PW.5 had seen seizure of counterfeit currency notes from the possession of accused no.1 to 5 and seizure of passport and credit cards. These incriminating articles bear distinctive features. Therefore, the contention of accused that investigation officer had foisted a false case against them by using the counterfeit currency notes seized from other accused cannot be accepted.
14
9. The contention of accused no.1 and 2, that they are mutton merchants; accused no.1 had supplied mutton to PW.9 and PW.9 had refused to pay the bill and PW.9 had falsely implicated accused 1 and 2 cannot be accepted. The evidence on record does not disclose the date of marriage or function for which accused no.1 and 2 are alleged to have supplied mutton to PW.9. PW.9-B.J.Bhandary was working as the Police Inspector of Mangalore South Police Station. It looks improbable that he had demanded accused no.1 and 2 to supply mutton to marriage function, the details of which are not made known to the court by the accused.
10. PW.6-S.M.Rudrappa had carried the seized counterfeit currency notes to Mysore Note Printing Press. The evidence of PW.6 has not been controverted.
11. PW.7-K.Mohana had been entrusted to verify from the Manager of Karur Vysya Bank, Pollachi Branch about the label attached to the bundle of fake currency notes recovered from the possession of accused no.1. PW.7 has deposed; that he had met the Manager of Karur Vysya Bank, 15 Pollachi and he has totally denied that 100 rupees counterfeit currency notes were not issued from the Bank and label found on the bundle was not the label of the bank.
12. PW.9-B.J.Bhandary was the Police Inspector of Mangalore South Police Station. He had led the raiding party to Room No.101 of Intercity Hotel at 2.00 p.m., on 20.03.2002. PW.9 has given the details of apprehension of accused no.1 to 5 in room no.101 and given the details of seizure of counterfeit currency notes from possession of each of the accused. The evidence of PW.9 discloses that apart from seizure of counterfeit currency notes, he had also seized other articles such as Driving Licence, Passport, Credit Cards, Mobile Phone from the possession of accused no.1 to 5 bearing distinctive features. It is difficult to conceive that PW.9 had planted these incriminating articles, which bear distinctive features to foist a case against accused.
During cross-examination, PW.9 has denied a suggestion that one Bhaskar Nair was involved in circulation of fake currency notes worth Rs.16 Lakhs and he had used a 16 part of fake currency notes seized in connection with that case to foist a case against accused no.1 to 5.
13. There is nothing on record to indicate that PW.9 had any ill-will or grudge against them. It was also suggested to PW.9 that he was receiving mamul (bribe) from accused no.1 and 2. This suggestion indicates that accused no.1 and 2 were capable of bribing the police officers and accused no.1 and 2 are not the men of normal conduct. It is also not made known to the court as to why accused no.1 and 2 being merchants were paying bribe to the Police Inspector. It is suggested to PW.9 that accused no.1 is a popular person in Mangalore City and he was the brother-in- law of one Ibrahim (the then Dy.S.P. at Mangalore). It looks probable that accused no.1 taking advantage of his relationship with Dy.S.P. had emboldened to commit these offences under the impression that police would not be dare enough to touch him. Therefore, there is no ambiguity or discrepancy in evidence adduced by the prosecution in proof of seizure of aforestated counterfeit currency notes from the possession of accused no.1 to 5.
17
14. The next point for consideration is whether accused no.1 to 5 were found in possession of aforestated counterfeit currency notes knowing or having reason to believe the same to be forged or counterfeit currency notes. In other words, whether the prosecution has proved that accused no.1 to 5 by mere look at currency notes had reasons to believe them as fake currency notes.
15. The learned counsel for accused relying on the judgments reported in 1972 Crl.LJ 1141 and AIR 1970 SC 1705 and AIR 2001 SC 3074 would submit that the prosecution has to prove that mere look at the currency notes would convince anybody that they are fake currency notes; likewise, the accused by mere look at the counterfeit currency notes had reasons to believe the same as fake or counterfeit currency notes and the prosecution has to prove that accused had knowledge or reasons to believe them as counterfeit currency notes.
18
16. In this regard, evidence of PW.3 would be relevant. PW.3 has deposed;
i. There was no water mark on the counterfeit currency notes ii. The portrait of Mahatma Gandhi in the window was incorporated on the Xerox copy of genuine currency notes.
iii. The texture of the note was totally different from the texture of note used to prepare genuine currency note. No Intaglio print was found.
iv. No hidden image was found
v. Security Inks were not used
vi. The notes on the face of them appear to be Xerox
copies of genuine currency notes.
17. The learned trial judge on observation of counterfeit currency notes has held that mere glance of notes is sufficient to come to the conclusion that they are fake currency notes. In the circumstances, the submission of learned counsel for accused that prosecution has failed to 19 prove that mere glance of currency notes is not sufficient to believe that they are fake currency notes cannot be accepted. Above all, accused no.1 and 2 being the residents of Mangalore have not given reasons for meeting accused no.4 and 5 who are from Rajasthan and Murudeshwar in Room No.101 of Intercity Hotel. It is not that accused no.1 to 3 had any legitimate business connection to congregate in the Hotel. This lead to inference that they had intention of passing genuine currency notes. It is not the case of accused that they are innocent possessors of counterfeit currency notes.
18. On behalf of the defence, accused no.1 has examined DW.1, accused no.2 and 3 have examined DW.2, accused no.4 has examined DW.3 to prove that they were arrested from different places at different points of time and not from Room No.101 of Intercity Hotel.
19. As already stated, when the accused were produced before the jurisdictional Magistrate, they have not stated that they were arrested from different places at 20 different points of time and they were forcibly brought to police station.
20. DW.1 has deposed; that on 20.03.2002, DW.1 and accused no.1 were proceeding in a Opal Car belonging to accused no.1 from the house of accused no.1. Two police persons known to accused no.1 stopped the car. They spoke with accused no.1 and took him to police station stating that the Police Inspector had called him. Two police constables boarded the car. DW.1, accused no.1 and two police constables travelled in the car. After reaching Kankanady Circle, DW.1 boarded the car. Accused no.1 proceeded in the car along with two police constables. After two days he came to know that accused no.1 has been implicated in the case.
During cross-examination, DW1 has admitted that he has not made any complaint or given in writing to anybody stating that he had travelled in the car of accused no.1 on 20.03.2002 and two policemen boarded he car. It appears that DW.1 being a friend of accused no.1 had narrated this 21 false story to help accused no.1. If DW.1 had travelled in the car with accused no.1 and thereafter, accused no.1 had been taken to police custody, DW.1 should have informed the matter at least to the family members of accused as to what had happened to accused no.1. Therefore, evidence of DW.1 is a mere unsuccessful attempt made by accused no.1 to prove that he was arrested elsewhere and he was not found in Room No.101 of Intercity Hotel at 2.30 p.m., on 20.03.2002.
21. DW.2 was examined on behalf of accused no.2 and 3 to prove that when accused no.2 and 3 were travelling on a motorcycle, they were forcibly taken by the police.
During cross-examination, DW.2 has admitted that he had worked with accused no.2 in the year 1999. If DW.2 had seen the police constables taking accused no.2 and 3 when they were travelling on a motorcycle, he would have informed the matter to the family members of accused no.2 an 3 or higher officials about the highhanded acts of police. Therefore, evidence of DW.2 is not worthy of acceptance. 22
22. DW.3 has given evidence to prove that accused no.4 was a merchant from Murudeshwar. Accused no.4 had come to Mangalore and contacted and told DW.3 that he was suffering from Hernia. After two days, he came to know that accused no.4 has been implicated in the case. Accused no.4 has not produced any documentary evidence to show that he was suffering from any ailment much less Hernia and he had come to Mangalore for treatment. Therefore, the evidence of DW.4 cannot be accepted.
23. The learned trial judge has acquitted accused no.6 on the ground that prosecution has failed to prove that accused no.6 had sold fake currency notes to accused no.1 to 5. The learned trial judge has failed to notice the distinction between an offence punishable under Section 489-B and 489-C IPC.
24. In order to bring home the guilt of accused for an offence punishable under Section 489B IPC, the prosecution has to prove that physical or inferential 23 activities of the accused to sell or buy or receive from any other person or otherwise traffic in or use as genuine any forged / counterfeit currency notes, knowing or reasons to believe the same as forged counterfeit currency notes. The words 'sells', 'buys' or 'receives from' occurring in Section 489-B IPC, require proof of tangible act or inferential act. The above acts can be proved by clinch evidence or circumstantial evidence. The prosecution has proved that accused 1 to 5 were found in possession of counterfeit currency notes and they have committed an offence punishable under Section 489C IPC.
25. In order to attract an offence punishable under Section 489-B IPC, the accused should be engaged in the acts of buying, selling or receiving from any other person or otherwise traffics in or using the same as genuine currency notes.
26. The learned trial judge without noticing the distinction between offences punishable under Section 489B and 489C IPC, has convicted accused 1 to 5 for an offence 24 punishable under Section 489-B IPC more particularly when the prosecution has failed to prove its case that accused no.1 to 5 were waiting for accused no.6 to buy fake currency notes from accused no.6. Therefore, the impugned judgment requires modification.
27. In the result, I pass the following:
ORDER The appeals are accepted in part.
The impugned judgment as it relates to conviction of accused no.1 to 5 for an offence punishable under Section 489-B IPC, is set aside. Accused no.1 to 5 are acquitted of offences punishable under Section 489-B IPC.
The conviction of accused no.1 to 5 for an offence punishable under Section 489-C IPC and sentence imposed for an offence under section 489-C in terms of the impugned judgment are confirmed.
Sd/-
JUDGE RS/Np/-