Karnataka High Court
Anandagouda S/O Tippanagouda Patil vs The State Of Karnataka on 4 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 04TH DAY OF FEBRUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 2805/2012
BETWEEN:
Anandagouda
S/o Tippanagouda Patil,
Age: 62 years, Occ: Agriculture,
R/o Idagal, Tq. Ramdurg,
Dist. Belgaum. ... Appellant
(By Sri. B.S. Kukanagoudar, Adv.)
AND:
The State of Karnataka,
Represented by State Public Prosecutor,
High Court of Karnataka,
Circuit Bench, Dharwad,
Through Muragod Police. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. PRAYING TO ALLOW THIS
CRIMINAL APPEAL, SETTING ASIDE THE JUDGMENT
OF CONVICTION DATED 28.06.2012 AND ORDER OF
2
SENTENCE DATED 29.06.2012, PASSED IN S.C. NO.
457/2011 BY THE PRESIDING OFFICER AND ADDL.
SESSIONS JUDGE, FAST TRACK COURT, SAUNDATTI
FOR THE OFFENCES U/SEC. 489(B) AND 489(C) OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING, THIS DAY THE COURT PASSED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred against the judgment of conviction and sentence passed by the Fast Track Court at Saundatti in S.C. No.457/2011 in convicting the appellant for the offences under Sections 489(B) and 489(C) of I.P.C. and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.20,000/-. In default to pay fine amount to undergo further period of 3 years imprisonment for the offence under Section 489(B) of IPC and also sentencing him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.10,000/- in default to pay fine accused 3 shall undergo imprisonment for further period of 2 years for the offence under Section 489(C) of IPC.
2. The factual matrix that emanate from the records are that, the complainant one by name Jagadeesh Chennabasayya Karajgimath had filed a complaint before the PSI, Murgod on 14.06.2010. It is alleged that, on the day at about 8.00 a.m. when he was in his Pan Shop at Yaragatti Village accused came to his shop and produced one 100 Rupee currency note requesting the complainant to provide one pack of Beedi and also a match box. On verification of the said note, the complainant suspected it as fake currency note. Immediately he caught hold the accused and took him to the Police Station and handed over the accused and that 100 rupee fake note to the Police.
3. It is the further case of the prosecution that on search of the accused person in the Police Station, the 4 Police also found 22 more fake currency notes in the pocket of the accused. It is also the case of the prosecution that at the time when the accused presented the said fake note in the shop of the complainant some other witnesses were also present who have witnessed the said incident. The Investigating Officer after recording the statement of witnesses and also sending the fake notes to the Reserve Bank of India for opinion as to genuineness of those currency notes and after getting the opinion confirmed himself that the currency notes recovered from the custody of the accused were all fake notes. Therefore, after completion of the investigation he submitted the charge sheet before the Court.
4. The accused person in fact was arrested in this case and he has been in judicial custody for some time during the course of investigation that was from 14.06.2010 to 11.07.2010 and he was released on bail 5 on 12.07.2010, he was on bail throughout during the pendency of the case before the Trial Court till he was convicted and taken to custody by the Trial Court on 28.06.2012.
5. The learned Trial Judge has framed charges against the accused person for the offences under Sections 489(B) and 489(C) of IPC. The accused pleaded not guilty thereafter the case set down for evidence. The prosecution in order to bring home the guilty of the accused examined 9 witnesses as PWs 1 to 9 and got marked Ex.P1 to P15 and Material Objects MOs 1 to 23. The Trial Court after examining the accused under Section 313 of Cr.P.C. called upon the accused to enter into defence evidence if any, as the accused did not choose to do so, after hearing the arguments on merits, the Trial Court rendered the impugned judgment holding the accused guilty and sentenced him accordingly as noted above. 6
6. The learned Counsel for the petitioner strenuously contends the prosecution has not proved the guilt against the accused beyond reasonable doubt. There are so many discrepancies in the evidence of PW-1, PW- 3 and PW-9 with regard to the catching of the accused by PW-1, and producing him before PW-9, etc. The learned Counsel also contends that the contents of Ex.P1 and Ex.P12 totally given go bye by PW-1 in his evidence. He has stated that though the Police themselves came to his shop on receiving information from some body and there they caught hold the accused person and took him to the Police Station. Wherein in Ex.P1 and P12 it is categorically stated that PW-1 caught hold the accused in his shop itself and took him to the Police Station. The learned Counsel also strenuously contends that PW-9 who says that under Ex.P12 he seized 22 currency notes, but other records shows that the accused himself has produced those 22 7 currency notes before the Investigating Officer. It is contended that the conscious process of the currency notes that the accused has got knowledge or reason to believe that those currency notes are fake notes. In spite of having such knowledge and belief he indulged in selling or using the said currency notes in order to make himself wrongful gain has not been meticulously examined by the prosecution in the particular case. He also contends that the accused is aged more than 65 years and he is suffering from lot of diseases. Therefore, the accused is entitled to be acquitted.
7. Learned Additional State Public Prosecutor also contends that the conduct of the accused in this case that presenting the fake note in the shop of PW-1 and when the PW-1 brought to the notice of the accused that it is a fake note then immediately the accused was perturbed, started perspiring and requested PW-1 to return the said note and attempted to run away from 8 the spot are sufficient to draw an inference that the accused person was having knowledge and belief that the said currency note presented by him was a fake note and therefore, the conduct of the accused is sufficient to hold that the accused has committed such an offence. Therefore, he contends that the Trial Court has rightly convicted the accused.
8. I have re-evaluated the evidence on record. Of course, PW-1 who is the complainant has in so many words stated that the presence of the accused and presentation of 100 rupee currency note, and PW-1 after verifying the said note found that there was no Gandhi emblem in the said fake note and it was very old note and therefore, he informed the accused that it is a fake note. After hearing that the accused was perturbed, started perspiring and tried to run away from the spot. Immediately PW-1 called the neighbouring pan shop owners and caught hold the accused thereafter, took the 9 accused to the Police Station and in their presence the Police have seized 100 rupee fake note and also searched the accused and recovered 22 more fake notes from the possession of the accused. It is worthy to note here no specific defence has been taken by the accused, but the Court has to ascertain and analyze from the evidence what is the defence of the accused.
9. On going through the examination of these witnesses there is no need to refer to the cross- examination of all the witnesses. It is quite sufficient to look into the cross-examination of PW-1. In the cross-examination of PW-1 it is suggested that "this witness has been deposing falsehood that the accused knowing fully well that the said currency note was fake note and in spite of that in order to have wrongful gain he has given fake currency note to PW-1". That indirectly denote that the accused has the defence that he has no knowledge that those currency notes are fake 10 currency notes and he has any reason to believe that those currency notes are fake notes and in spite of that it is for the purpose of making wrongful gain he has given the said fake notes to PW-1. Though the offence is not specific but on perusal of the cross-examination it could be seen that it must be the defence of the accused person. Even otherwise no defence is taken by the accused. It is the burden on the prosecution to prove the ingredients of the penal provisions beyond reasonable doubt.
10. PW-2 is the Panch witness for Ex.P2, under which the Police on the arrest of the accused took the accused to the shop of the complainant and conducted the spot mahazar. But this Ex.P2 nowhere prove any allegations against the accused. Likewise, Ex.P3 is the mahazar drawn near the house of the accused, but nothing has been recovered at the instance of the accused. PWs 3 and 4 are the witnesses who were present near the shop 11 of PW-1 at the time of the incident who saw the accused presenting 100 rupee fake currency note, etc. They have in fact supported the case of the prosecution, in the course of cross-examination nothing has been elicited by them in so far as these aspects are concerned.
11. PW-5 is the Deputy Manager of the Indian Reserve Bank to whom the Investigating Officer has sent these seized 23 fake currency notes. He has deposed before the Court that he has examined the said notes with the original currency notes and found that those 23 currency notes seized by the Police were fake currency notes. Though this witness has been cross-examined as could be seen nothing much has been elicited to disbelieve the evidence of this witness to come to any other conclusion that these currency notes are not fake currency notes. PW-6 - M.S. Naiker is the person who sent these currency notes to PW-5 for examination. 12 PW-7 is the panch witness for Ex.P12 under which the Police have seized one 100 rupee currency note from the custody of the accused and also seized 22 fake currency notes from the custody of the accused under Ex.P13. In his examination in chief he has categorically stated that he was present at the time of the seizure of these currency notes. So many questions have been put to these witnesses in the course of cross-examination to elicit the Sl.Nos. of the currency notes, etc., and also it is suggested that the Police have not conducted any such mahazar, etc. All those suggestions in the course of cross-examination have been denied. PW-8 is the formal witness, who took the fake currency notes to PW- 5 for examination.
12. The main witness relied upon by the prosecution is the evidence of PW-9 - the Investigating Officer. Though there is some discrepancies with regard to the seizure of 23 currency notes and also arresting of the 13 accused person, the evidence of this witness cannot be out rightly rejected. The learned Counsel already contended referred to above that the accused was produced by PW-1 before the Investigating Officer. But in the course of evidence PW-1 has stated that the Police themselves came to the spot and took the accused person. But this witness says that on 14.06.2010 the complainant himself appeared before this witness, produced the accused and one counterfeit currency note of denomination of Rs.100/-, seized the same in presence of the witnesses. He enquired the accused and also make personal search of this accused and found 22 more fake currency notes with him. He has deposed with regard to the other stages of investigation he has conducted.
13. On perusal of evidence neither in the examination in chief nor in the course of cross-examination it is elicited why this witness has falsely implicated this 14 accused, whether the accused was known to other witnesses earlier, whether accused is habitual offender or some other person has committed the offence, accused was not traced and because of that reason this accused has been falsely implicated in to this case. Therefore, it is very difficulty to disbelieve this witness in so far as the recovery of 23 counterfeit currency notes from the custody of the accused. But very sensibly some questions have been put to this witness in the course of cross-examination. It is relevant for the purpose of assessing whether accused was consciously possessing these currency notes or not. In the cross- examination it is suggested that at the time when this witness has made the personal search of the accused he found something more in the pocket of the accused. But this witness says as those articles were not relevant he has not seized them. But this witness has not stated what are those articles found in the possession of the 15 accused whether any other genuine currency notes were found along with this fake notes is also not stated. It is also stated by this witness that he did not directed the investigation to ascertain whether this accused person has got those currency notes from whom, etc. Nevertheless in the examination in chief itself he has stated that the accused has disclosed that some person from a place called Naragund gave this witness 23 fake currency notes in exchange of 10 genuine currency notes. But in spite of knowing that some person was there in Naragund who is dealing with this fake currency notes, but nothing has been stated by this witness whether he has made any efforts to ascertain going to Naragund, whether such person was there by taking accused person along with him for the purpose of identifying the said person in Naragund Village.
14. The above said materials collected by the Investigating Agency and also the evidence placed before 16 the Trial Court, in my opinion amply prove that the seizure of counterfeit currency notes from the custody of the accused. Therefore, I don't find any strong reason to differ from the observations made by the Trial Court that these 23 fake currency notes were recovered at the instance of the accused.
15. But the main prime question mere recovery of the currency notes from the custody of the accused is sufficient to hold the accused guilty of the offence under the above said provisions, the answer must be 'No', because of the simple reason mere custody of the currency notes, bereft of any intention, any knowledge, any reason on the part of the accused to believe that the said currency notes were counterfeit currency notes and knowing fully well that he has presented one currency note in the shop of PW-1 or so as to make himself wrongful gain.
17
16. In the above context, it is just worthy to note here the provisions of Section 489 (B) and 489(C) of I.P.C. which reads thus :
"489(B) 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 term which may extend to ten years, and shall also be liable to fine.
489(C). 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 18 used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both".
(Emphasis supplied)
17. The above said provisions admittedly makes it clear that the knowledge of the accused and reasons to believe that the currency notes which he has possessed were forged and counterfeit that shows that the knowledge or reasonable belief of the accused is kept on par with mens rea of the accused i.e. to say only all these things that he has the currency notes knowing fully well those currency notes are fake and in spite of that he wanted to circulate the said currency notes amongst the public at large for the purpose of making himself unlawful gain.
18. On plain reading of the above said Section 489(B) and (C) of Indian Penal Code, it imposes burden on the 19 prosecution to prove beyond reasonable doubt that at the time when the accused was possessing the alleged counterfeit currency note he knew that it was forged one. It is not sufficient on the part of the prosecution to prove mere possession of it by him and it does not shift the burden to the accused to prove his innocence in possessing of the forged note. Similarly, under Section 489(C) it is to be proved by the prosecution that the accused intended to use the forged or counterfeit currency note as genuine. It is for the prosecution to prove the circumstances which would irresistably prove to the satisfaction of the Court, that the accused had an intention to circulate counterfeit notes on the public. Therefore, it is clear that it is the burden on the prosecution and not the conduct of the accused, as such play important role in the case.
19. In this backdrop, the learned Counsel also relied upon a Ruling of the Hon'ble Supreme Court reported in 20 2001 AIR SC 3074 between Umashankar Vs. State of Chattisgarh. It is elaborately discussed by the Hon'ble Supreme Court after extracting the provisions under Section 489(B) and 489(C) of IPC at paragraph 8. It is relevant to quote here :
"(8) A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes is not enough to constitute offence under Section 489-B of Indian Penal Code. So also possessing or even intending to use any forged or counterfeit currency-notes or bank-
notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show 21 that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW-2, PW-4 and PW-7 that they were able to make out that currency note alleged to have been given to PW-4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 18 years old student. On the facts of this case the presumption drawn by the trial Court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-notes being fake or counterfeit was put to the appellant in his examination under Section 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B and 489- C of Indian Penal Code and acquit him of the said charges".
(Emphasis supplied) 22
20. In the above said case also, it is categorically held that the Trial Judge only on the basis of evidence of PWs 2, 4 and 7 and considering the conduct of the accused held that the prosecution has proved the guilty of the accused. But the Hon'ble Supreme Court also observed that merely on the basis of the conduct of the accused or the evidence of witnesses who does not say about the knowledge of the accused is not sufficient to hold the accused guilty. The Hon'ble Supreme Court also referred to the examination of the accused under Section 313 of Cr.P.C., it is the bounden duty of the Trial Court to put the ingredient of Section 489(C) with reference to the knowledge of the accused and belief of the accused that the said currency notes were fake notes, in spite of that he was in possession of those currency notes and he made attempts to circulate the said currency notes amongst the public. In this background, if it is seen from the Trial Court record the 23 313 statement of the accused no where it is put to the mouth of the accused in such manner in order to elicit his exact answer. Perhaps, the learned Trial Judge has not put that question from the mouth of the accused for the simple reason that, none of the witnesses have stated in such a manner before the Court in order to extract the same and putting it into mouth of the accused. Even the witnesses have not stated in such a manner the learned Magistrate would have put such question as to whether the accused admit that he had any knowledge of such currency notes with him knowing fully well and having belief that those currency notes are fake currency notes. In the absence of providing such opportunity to the accused to explain whether he had currency notes with such knowledge or he has no knowledge or belief or reason to believe that those currency notes were fake notes and in spite of that he was holding those notes. Therefore, in my 24 opinion, the above said Supreme Court Ruling aptly applicable to the present facts and circumstances of the case.
21. The learned Counsel also relied upon another Ruling reported in 2004 Kar.L.J. Part 2 Page 19 between State by Lashkar Police Station, Mysore Vs. M.V. Srinivasa at paragraphs 6, 7 and 8, this Court has elaborately discussed again with regard to the responsibility of the prosecution to prove the ingredients of Section 489(B) and 489(C). Apart from discussing the responsibility of the prosecution this Court has also observed that the Investigation has not been properly done in the said case on the ground that the investigation has not been conducted to ascertain, from where the accused has secured these currency notes and who actually responsible for circulating those currency notes amongst the public. This Court in fact, categorically observed that the accused though 25 possessed the counterfeit currency notes cannot be said to be having guilty of any offence that has to be established independently irrespective of the fact that currency notes were recovered at the instance of the accused person.
22. Looking from any angle, in the above said case as I have already referred to the evidence of the witnesses and the Investigating Officer even at the cost of repetition I can say that none of the witnesses have stated anything about the mens rea of the accused, knowledge, the reasonable belief on the part of the accused that the currency notes which he was possessing were fake currency notes, nor established the guilt of the accused. Therefore, it is categorically to be held that the possession of the currency notes from the accused bereft of any intention or knowledge coupled with mens rea, it cannot be said that the prosecution has proved the case against the accused 26 beyond reasonable doubt, which make the accused person entitled for an acquittal.
23. Now, coming to the judgment of the Trial Court, so far as finding the accused guilty under Section 489(B) and (C) with reference to the knowledge of the accused, the Trial Court has referred at paragraph 25 that the complainant in this case on presentation of the said currency notes suspected the accused, in the meantime the accused was in a hurry to run away with an intention to escape from PW-1, but the complainant with the help of surrounding pan shop owners caught the accused, then informed the Police. Here, the learned Trial Judge come to the conclusion only on the basis that on PW-1 explaining that note produced by the accused was fake note then the accused started perspiring and tried to escape. Whether this conduct alone is sufficient to come to a definite conclusion that the accused had knowledge or reasonable belief that the 27 currency note produced by him was a fake currency note. There may be some circumstances where the fake currency notes were circulated extensively by some anti- social elements. In such circumstances, even an ordinary innocent man may come across such currency notes with them. Bearing in mind such circumstances, the provisions under Indian Penal Code are made so stringent and provided safeguards to protect innocent persons, by imposing responsibility on the prosecution to prove beyond reasonable doubt about the knowledge and also reasonable belief on the part of the accused regarding possession of the fake currency notes.
24. Looking to the above said circumstances, it cannot be ruled out that the accused/appellant might have come in contact with some person and in that context he might have received some currency notes unknowingly that those notes are fake currency notes. Therefore, the prosecution has not proved beyond 28 reasonable doubt about the mens rea of the accused. The mere conduct of the accused is not sufficient particularly the conduct which has been shown in this particular case to establish the guilty of the accused.
25. For having come to such conclusion, I am of the opinion that the Trial Court though right in holding that the accused was found in possession of fake currency notes with him but failed appreciate the existence of mens rea on the part of the accused, which has not been proved by the prosecution beyond reasonable doubt. Hence, the accused is entitled to be acquitted.
26. With these observations, I proceed to pass the following :
ORDER The appeal is allowed. The conviction and sentence passed by the Trial Court against the accused 29 under Section 489(B) and 489(C) of I.P.C. are hereby set aside.
As the learned Counsel brought to my notice, after the sentence of conviction passed by the Trial Court, the Trial Court taken the accused into custody and the accused is in Judicial Custody. Therefore, the accused shall be set at liberty forthwith.
If any amount of fine is deposited by the accused, the same shall be refunded.
SD/-
JUDGE Rbv