Karnataka High Court
Sadhiq vs The State Of Karnataka on 6 March, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 1162 of 2011
C/W CRL.A No. 1016 of 2011
CRL.A No. 1089 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1162 OF 2011
C/W
CRIMINAL APPEAL NO.1016 OF 2011
CRIMINAL APPEAL NO.1089 OF 2011
IN CRL.A. NO.1162/2011
BETWEEN:
THOUSIF HASAN
S/O MOHAMMAD ILIYAS,
AGED ABOUT 23 YRS
OCC: B.SC. COMPUTER,
FINAL YEAR STUDENT,
RES: INDIRANAGAR, I CROSS
BHADRAVATHI TOWN
DIST: SHIMGOA
...APPELLANT
(BY SRI. A S KULKARNI, ADVOCATE)
Digitally
signed by AND:
LAKSHMI T
STATE BY NEW TOWN POLICE STATION
Location: BHADRAVATHI
High Court ...RESPONDENT
of Karnataka (BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.09.2011
PASSED BY THE HON'BLE FAST TRACK COURT, BHADRAVATHI IN
S.C.NO.48/2010 IN CONVICTING THE APPELLANT/ACCUSED NO.4
ALONG WITH ACCUSED NOS.1, 2 AND 3 FOR THE ALLEGED OFFENCE
PUNISHABLE UNDER SECTION 489-C OF INDIAN PENAL CODE R/W
SECTION 34 OF INDIAN PENAL CODE AND SENTENCING HIM TO
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CRL.A No. 1162 of 2011
C/W CRL.A No. 1016 of 2011
CRL.A No. 1089 of 2011
UNDERGO RIGOROUS IMPRISONMENT FOR 2 YEARS AND TO PAY
FINE OF Rs.500/- AND IN DEFAULT OF PAYMENT OF FINE TO UNDER
GO SIMPLE IMPRISONMENT FOR 3 MONTHS AND SET THE
APPELLANT LAT LIBERTY BY ALLOWING THE ABOVE APPEAL BY
ACQUITTING THE APPELLANT IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CRL.A. NO.1016/2011
BETWEEN:
1. MOHAMMED THAKIBULLA
S/O MOHAMMED MUSHJI AHAMMAD
AGED 23 YEARS
WORKING AS CONTRACTOR
RESIDING AT ANWAR COLONY OLD TOWN
BHADRAVATHI TOWN
SHIMOGA DISTRICT.
2. MOHAMMED KURRUM
S/O KALIMULLA
AGED 23 YEARS
STUDENT
RESIDING AT ANWAR COLONY
BHADRAVATHI TOWN
SHIMOGA DISTRICT.
...APPELLANTS
(BY SRI. LOKESH ANJANAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY NEW TOWN POLICE STATION
BHADRAVATHI
BY SPP HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
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CRL.A No. 1162 of 2011
C/W CRL.A No. 1016 of 2011
CRL.A No. 1089 of 2011
AND ORDER OR SENTENCE PASSED BY F.T.C. AT BHADRAVATHI IN
S.C.NO.48/2010 DATED 28.09.2011 AND ACQUIT THE APPELLANTS
FROM THE CHARGES UNDER SECTION 489-C I.P.C. PASSED BY FAST
TRACK COURT AT BHADRAVATHI IN S.C.NO.48/2010 DATED
28.09.2011 INCLUDING THE FINE AMOUNT IMPOSED, IN THE
INTEREST OF JUSTICE.
IN CRL.A.NO.1089/2011
BETWEEN:
SADHIQ
S/O KHASIMSAB
AGED ABOUT 29 YEARS
BUSINESS,
R/O RAMANAGAR
BHADRAVATHI TALUK
SHIMOGA DISTRICT
...APPELLANT
(BY SRI. B S PRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY NEW TOWN POLICE STATION
BHADRAVATHI.
...RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
DATED 28.09.2011 PASSED BY THE LEARNED FAST TRACK AT
BHADRAVATHI, IN SESSIONS CASE NO.48/2010 AND ACQUIT THE
APPELLANT, IN THE INTEREST OF JUSTICE.
THESE APPEALS ARE COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1162 of 2011
C/W CRL.A No. 1016 of 2011
CRL.A No. 1089 of 2011
JUDGMENT
These three appeals arise out of the judgment and order dated 28.11.2011 passed by the Court of Fast Track Court at Bhadravathi in SC No.48/2010, whereby accused Nos.1 to 4 are convicted and sentenced for the offence punishable under Section 489C read with Section 34 of IPC.
The accused are sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.500/- each, in default, to further undergo Simple Imprisonment for three months.
2. Crl.A.No.1162/2011 is preferred by accused No.4, Crl.A.No.1016/2011 is preferred by accused Nos.1 and 3 and Crl.A.No.1089/2011 is preferred by accused No.2.
3. Heard the learned counsel for the appellants in the respective appeals and the learned High Court Government Pleader appearing for the respondent-State, at length and perused the evidence and material on record. -5- CRL.A No. 1162 of 2011 C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011
4. The case of the prosecution in brief, is that on 28.08.2009, at about 4.15 p.m., PW13-Circle Inspector of Police, Bhadravathi Town Circle received a credible information that two persons are indulged in trafficking of counterfeit currency notes near the private bus stand, Bhadravathi, in front of a book stall of one Ramesh (PW7). On receiving the said information, as per the direction of Deputy Superintendent of Police, PW13 along with other police personnel and panch witnesses went near Bhadravathi private bus stand at about 4.30 p.m., and noticed two persons standing near the book stall of Ramesh and a motorcycle parked by the side of those two persons. They were engaged in removing the notes from their bags and again keeping them back. Immediately, the complainant and his staff surrounded and apprehended accused Nos.1 and 2. Accused No.1 was found in possession of 09 counterfeit currency notes of Rs.100/- denomination with Sl.No. 22 F 962136 and accused No.2 was found in possession of 11 counterfeit currency notes of Rs.100/- denomination with Sl.No.2AF 962286. The said counterfeit currency notes as well as a motor cycle bearing registration No.KA-03-EA-2326 were seized under a mahazar-Ex.P1 in the presence of panch -6- CRL.A No. 1162 of 2011 C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 witnesses. Upon enquiry, accused Nos.1 and 2 informed that the counterfeit currency notes were given to them by accused Nos.3 and 4 for circulation.
5. On the complaint of CPI-PW13, PW6-PSI of New Town Police Station, Bhadravathi, registered a case in Cr.No.129/2009 against accused Nos.1 to 4 for offences punishable under Section 489 (A), (B), (C) and (D) read with Section 34 of IPC.
6. On the information furnished by accused Nos.1 and 2, the police conducted a raid in the house situated at Anwar Colony, Bhadravathi Town and apprehended accused Nos.3 and
4. A total quantity of 145 counterfeit currency notes as well as computers, monitors, printer etc., marked as MOs.1 to17 were seized under a panchanama-Ex.P3 in the presence of panch witnesses. Seized notes were sent for examination to PW12-Deputy Manager, Bharathiya Reserve Bank, who issued the opinion letter as per Ex.P14. On completion of investigation, PW13 filed the charge sheet.
7. Charges were framed against accused Nos.1 to 4 for the offence punishable under Sections 489 (A), (B), (C) and -7- CRL.A No. 1162 of 2011 C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 (D) read with Section 34 of IPC. The prosecution in all examined 14 witnesses and got marked 20 documents and 21 material objects.
8. The defence of the accused was one of total denial. However, no evidence either oral or documentary was adduced by the defence.
9. The trial Court, after appreciating the oral and documentary evidence on record, came to the conclusion that there is no evidence to show that there was any buying or selling of the notes and therefore held that the prosecution has failed to establish the offence under Sections 489A, 489B and 489D of IPC, however, held that the accused were in possession of the counterfeit currency notes and they had the knowledge that they are counterfeit currency notes and naturally intended to use it. Hence, the trial Court convicted and sentenced accused Nos.1 to 4 for the offence punishable under Section 489C read with 34 of IPC.
10. PW1 is the panch witness to Ex.P1 i.e, mahazar regarding seizure of counterfeit currency notes and a -8- CRL.A No. 1162 of 2011 C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 motorcycle from accused Nos.1 and 2. The same are marked as MOs.18 to 20.
11. PWs.2 and 9 are the panch witnesses to Ex.P3- Mahazar regarding seizure of counterfeit currency notes and other material objects from accused Nos.3 and 4, which are marked as MOs.1 to 17 and MO.21.
12. PW3 is the shopkeeper, who has sold a printer and issued the bill to accused No.4. Ex.P5 is the copy of the bill in respect of the said printer.
13. PWs.4 and 5 are examined to show that accused Nos.3 and 4 were students in their institution.
14. PW7 is the owner of one Book Stall situated opposite to the bus stand, where accused Nos.1 and 2 were apprehended.
15. PWs.6, 8, 10, 11 and 14 are the Police personnel, who accompanied PW13 to the spot and they speak about the seizure of counterfeit currency notes from the accused.
16. PW12 is the Deputy Manager, Bharathiya Reserve Bank, Mysore, who has issued Ex.P14-opinion letter with regard -9- CRL.A No. 1162 of 2011 C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 to the counterfeit currency notes seized from the possession of the accused persons.
17. Amongst the prosecution witnesses, PWs.1, 2, 7 and 9 have not supported the prosecution and they have turned hostile.
18. The trial Court has held that all the police officials and the CPI examined by the prosecution have clearly stated in their evidence that accused Nos.1 and 2 were present in front of the book stall near the private bus station and from accused by name Mohammed Thakibulla (A1), 11 counterfeit currency notes and accused by name Sadhiq (A2), 09 counterfeit currency notes were seized. Further, PWs.7 and 13 have clearly stated in their evidence that 145 counterfeit currency notes were seized from the house situated in Anwar Colony and they have stated that accused Nos.3 and 4 were apprehended, when they tried to run away from that place. Further placing reliance on the evidence of PWs.4 and 5, the trial Court has come to the conclusion that the prosecution has established that accused Nos.3 and 4 have undergone education in B.Sc. (Computer Science) and thus, the trial Court convicted accused
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 Nos.1 to 4 for the offence punishable under Section 489C read with Section 34 IPC. Relying on the evidence of PWs.4, 5, 6, 8, 10,11, 13 and 14, the trial has held that the fake counterfeit currency notes are not easily available anywhere and therefore under those circumstances, the evidence of the police officials that they have seized notes from the possession of accused Nos.1 and 2 could be believed. Further held that, nothing is elicited to show that why the police officials will have grudge over these accused to speak falsehood.
19. It is the specific case of the prosecution that, the complainant-PW13-CPI of Bhadravathi Town Police station received a credible information on 28.08.2009 at about 4.15 p.m. that two persons are involved in circulating counterfeit currency notes in front of a book stall of one Ramesh, situated near the private bus station in Bhadravathi. In the complaint, which is marked as Ex.P11, it is stated that on receiving the said information, immediately, PW13-CPI, as per the direction of Dy.S.P., went to the spot along with other police officials and apprehended accused Nos.1 and 2 and seized 09 counterfeit currency notes of Rs.100/- denomination from accused No.1 and 11 counterfeit currency notes of
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 Rs.100/- denomination from accused No.2 and also a motorcycle. The said seizure was made under a mahazar-Ex.P1 in the presence of panch witness namely PW1 and one Shivaram V. Bhat (CW3). Further, the said two accused, on enquiry confessed before the police that the counterfeit currency notes were given to them by accused Nos.3 and 4. PW13, thereafter went to the house situated in Anwar Colony as per the information volunteered by accused Nos.1 and 2 and arrested accused Nos.3 and 4 and seized 145 counterfeit currency notes as well as the printer, computers etc., at their instance.
20. In the first information report, it is stated that PW13 along with the PSI of New Town Police Station i.e., one Anjankumar K. (PW6), A.V.Narayana (PW14) along with ASI-HC 596 (PW8), HC 546 (PW10), PC 1173, PC 882, PC 782 and PC 895 (PW11) and panch witnesses went in a departmental Jeep to the spot. As per PW13, after accused Nos.1 and 2 were apprehended and counterfeit currency notes and the motorcycle were seized under Ex.P1, he took over the investigation from PW6, who registered the case and then arrested the said accused and recorded their voluntary
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 statements. The voluntary statement of accused No.1 is marked as Ex.P18 and that of accused No.2 is marked as Ex.P.17.
21. It is the case of prosecution that seizure of 145 counterfeit currency notes, computers, printer and moniters etc. as per MOs.1 to 17 and MO.21 are at the instance of accused Nos.3 and 4. PW13 has specifically stated that it was accused Nos.1 and 2 who led the police to a house in Bhadravathi from where those articles as well as the counterfeit currency notes were seized under a mahazar-Ex.P3. PW13 has stated that those articles were seized in the presence of panchas and thereafter accused Nos.3 and 4 were taken into custody.
22. A perusal of the evidence of PW13 would clearly reveal that after the arrest of accused Nos.3 and 4, their voluntary statements were recorded, which is after the seizure of 145 counterfeit currency notes and other articles, marked as MOs.1 to 17. Therefore, it is clear that accused Nos.3 and 4 have not volunteered the police to produce either the counterfeit currency notes or other materials, which were
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 seized from the house situated in one Anwar Colony in Bhadravathi Town. Accused Nos.3 and 4 have not led the police to the house situated in Anwar Colony and therefore, it cannot be held that at their instance MOs.1 to 17 and MO.21 were seized. To establish that, MOs.1 to 17 and MO.21 and 145 counterfeit currency notes were seized from the possession of accused Nos.3 and 4, the prosecution is relying on the evidence of PWs.11 and 13 and panch witnesses.
23. According to PW11, accused Nos.1 and 2 were apprehended from the spot and the counterfeit currency notes were seized from their possession. On enquiry, accused by name Sadiq (accused No.2) showed the house in Anwar Colony stating that counterfeit currency notes are being printed there. He has stated that accused Nos.3 and 4 were present in the said house and they tried to ran away on seeing the police. They were apprehended and on search of the house, they found computers, printers etc., and the counterfeit currency notes.
24. PW11 has stated that they went to the house at Anwar Colony along with panchas namely PWs.2 and 9 and PSI-PW6, HC-546 and PC-782. Though PW11 has stated that
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 even PSI-PW6 and HC-546 (PW10) have also accompanied them while conducting the raid in the house situated in Anwar Colony, but PWs.6 and 10 have not stated that they have accompanied other police to the house in Anwar Colony or that they were present at the time of seizure of articles such as computers, printers etc., and 145 counterfeit currency notes from the said house. They have only spoken about the seizure of notes namely MOs.18, 19 and 20 and a motorcycle from the possession of accused Nos.1 and 2.
25. As already discussed, even according to the prosecution, it was accused Nos.1 and 2 who led the police to a house in Anwar Colony from where MOs.1 to 17 and MO.21 were seized. After the seizure of those articles, accused Nos.3 and 4 were arrested and their voluntary statements were recorded. The prosecution has not placed any material to show that either accused Nos.3 and 4 were residing in the said house. The owner of the said house is neither cited as a witness nor examined. The panch witnesses namely PWs.2 and 9 to the seizure mahazar-Ex.P3 have not supported the prosecution case. Hence, it cannot be conclusively held that accused Nos.3 and 4 were either in exclusive possession of
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 MOs.1 to 17 and 21 or that those articles were seized from their possession or at their instance.
26. In Ex.P11 i.e., complaint lodged by PW13, it is specifically mentioned that accused No.1 was in possession of 09 counterfeit currency notes of Rs.100/- denomination with Sl.No. 22 F 962136 and accused No.2 was in possession of 11 currency notes of Rs.100/- denomination with Sl.No.2AF 962286.
27. PW13, in his chief examination has deposed that on 19.10.2009 he forwarded a letter to the Manager of Reserve Bank India, Printing Press, Note Mudranalaya, Mysore, to verify as to whether the notes which are seized are fake or genuine notes. He has further stated that he received the opinion letter as per Ex.P14. Though PW13, in his complaint has mentioned only about two serial numbers, in his evidence, he has not stated the serial numbers of the notes, which are seized from accused Nos.1 and 2. As per PW12, he received a requisition from the Deputy Superintendent of Police, Bhadravathi Sub-Division along with 165 notes in a sealed cover to verify as to whether they are genuine or not on
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 20.10.2009. He has stated that after receiving the sealed cover, the currency notes were examined as per the procedure and he examined all the 165 notes and came to the conclusion that they are not genuine notes. He has issued the opinion letter, marked as Ex.P14.
28. It is vehemently contended by the learned counsel for the appellants that PW12 is not an expert to examine and give opinion with regard to the counterfeit currency notes and further in this case the Investigating Officer has not sent the notes to FSL and therefore, it cannot be said that the notes which were seized in this case has been proved to be fake notes.
29. A perusal of the evidence of PW12 does not indicate that in what manner he examined the notes to find out as to whether the notes were fake or genuine. In the cross- examination, he has stated that he has not mentioned the procedure conducted for examining the notes because it is a confidential process of the Bank. However, it has to be borne in mind that the notes were having similar serial umbers and therefore, by a mere look at the notes itself, one can form an
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 opinion that notes are not genuine. What is relevant to be seen is that, in Ex.P1 in respect of counterfeit currency notes alleged to have been seized from accused Nos.1 and 2, only two serial numbers are mentioned i.e., 22F 962136 and 2AF 962286. PW12, in his cross-examination, has stated that he has examined the notes having top number 2AF 9627 and bottom number 22F 962136. Obviously, the said notes were seized after the arrest of accused Nos.1 and 2. In the complaint, PW13 has not stated that the said currency note having Sl.No.22F 962136 had a different serial number on the top i.e., 2AF 9627. A reasonable doubt therefore arises in the mind of the Court regarding the seizure of counterfeit currency notes mentioned in the complaint from the possession of accused Nos.1 and 2. Neither the complainant nor other police witnesses have deposed about the serial number of the notes. Ex.P11 does not show that any of the notes which were seized from accused Nos.1 and 2 were having different serial numbers at the top and bottom. PW12, in his evidence has not deposed in consonance with Ex.P14-opinion letter issued by him.
30. The prosecution is relying on the evidence of PWs.6, 8, 10, 11, 13 and 14 with regard to seizure of counterfeit
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 currency notes from accused Nos.1 and 2. PW6, in his cross-examination has stated that he cannot say the serial number of the notes seized from the said accused. Though it is the case of prosecution that accused Nos.1 and 2 informed the police, that the notes were supplied to them by accused Nos.3 and 4, PW8 has not stated in his evidence that after accused Nos.1 and 2 were apprehended, seizure was conducted and the said accused informed the police about the fake notes supplied to them by accused Nos.3 and 4. Though PWs.6 and 11 have stated that all the police were in uniform, however, PW8 in his cross-examination has stated that when they went to the spot except the Circle Inspector and PSI, all of them were in mufti. According to PW11, there were 25 to 30 people present at the spot when accused Nos.1 and 2 were apprehended. None of them are examined by the prosecution. In view of the above contradictions and discrepancy in the evidence of official witnesses, it is necessary to find corroboration.
31. In the present case, PW1- panch witness to Ex.P1, the mahazar under which currency notes were seized from accused Nos.1 and 2, has not supported the case of
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 prosecution. Another panch witness CW6 has not been examined. Further, PW7-Book Stall owner, who was said to be present when accused Nos.1 and 2 were apprehended in front of his shop, has also turned hostile. He has stated that the police have not apprehended accused Nos.1 and 2 in front of his shop and not seized anything from their possession.
32. It is also contended by the learned counsel for the appellants that in this case the complainant namely CPI-PW13 himself has conducted investigation and filed charge sheet and such practice has been deprecated by the Hon'ble Apex Court. To buttress the said argument, a decision of the Hon'ble Apex Court reported in 1975 SCC 737 has been pressed into service. In the said case, where the complainant has acted as the Investigation Officer, the Court has disapproved of such a duel role. It is observed that the Courts have generally disapproved of the same individual functioning in both the capacities.
33. Though in all cases, the role of the complainant acting as Investigation officer cannot be disapproved, however, in the case on hand, having reappreciated the entire
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CRL.A No. 1162 of 2011C/W CRL.A No. 1016 of 2011 CRL.A No. 1089 of 2011 materials on record, this Court finds that the evidence of the police witnesses are not trustworthy in the absence of corroboration from the independent witnesses. In such a situation, the complainant namely CPI himself conducting investigation and filing the charge sheet and functioning in both the capacities raises a reasonable doubt in the genuineness of the prosecution case.
34. For the forgoing discussion, the reasons assigned by the trial Court for convicting the appellants/accused Nos.1 to 4 for the offence punishable under Section 489C read with 34 of IPC cannot be said to be in accordance with law. The accused are entitled to benefit of doubt. The impugned judgment and order of conviction and sentence passed against them is therefore, liable to be set aside. Accordingly, the following:
ORDER The appeals are allowed.
The judgment and order dated 28.11.2011 passed by the Court of Fast Track Court at Bhadravathi in SC No.48/2010 convicting and sentencing accused Nos.1 to 4/appellants for the
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offence punishable under Section 489C read with 34 IPC is hereby set aside and they are acquitted of the said offence.
Their bail bonds stand cancelled.
SD/-
JUDGE TL List No.: 1 Sl No.: 17