Karnataka High Court
C K Muneer vs The State Of Karnataka By P S I on 31 January, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.292 OF 2008
Between:
C.K.Muneer
S/o Abdul Rahiman
Aged about 28 years
Gandhinagar, Virajpet
Virajpet Taluk
S.Kodagu ... Appellant
(By Sri.C.R.Gopalaswamy, Advocate)
And:
The State of Karnataka
By P.S.I.
Virajpet Town Police Station
Virajpet Taluk
Kodagu District ... Respondent
(By Sri.B.Visweswaraiah, HCGP)
*****
This Criminal Appeal is filed under Section 374
Cr.P.C against the judgment and order of conviction
dated 26.2.2008 passed by the Ad.Hoc. District and
Sessions Judge, Fast Track Court, Virajpet in
S.C.No.82/2002 convicting the appellant/accused No.1
for the offence punishable under Section 489(c) of IPC
and sentencing him to undergo rigorous imprisonment
for 5 years and also fine of Rs.1,000/- in default of
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payment of fine to undergo rigorous imprisonment for
one month for the offence punishable under Section
489(c) of IPC.
This Appeal coming on for further arguments this
day, the Court delivered the following:-
JUDGMENT
The appellant (accused No.1) and accused Nos.2 and 3 were tried for offence punishable under Sections 489(B) and 489 (C) IPC. The learned Sessions Judge acquitted accused Nos.2 and 3 of the afore stated offences and also acquitted accused No.1 of offence punishable under Section 489(B). The learned Sessions Judge has convicted appellant (accused No.1) for offence punishable under Section 489(C) IPC. Therefore, he is before this Court.
2. I have heard Sri Gopalaswamy, learned counsel for accused and learned Government Advocate for State.
3. It is the case of prosecution that on 22.3.2001, accused was found in possession 16 counterfeit/fake 3 currency notes of 50 rupees denomination, thereby committed an offence punishable under Section 489 IPC.
4. The prosecution has relied on evidence of PWs.1 to 9 and the documents marked as Exs.P1 to P10. The fake currency notes are marked as MOs.1 and 2.
5. PW1 - B.P.Pawan is a private witness who is stated to have attested the mahazar when the fake currency notes were seized from the possession of accused. He has not supported the case of the prosecution.
6. PW2 - Sudheer Kumar was working as receptionist in Bhagyalakshmi Lodge at Virajpet. He has deposed that certain persons had occupied a room in Bhagyalakshmi Lodge and accused was visiting that room to meet those persons. PW3 - Dinesh was working as the Manager of Bhagyalakshmi Lodge and his evidence does not incriminate the accused. 4
7. At the relevant time, PW4 - H.K.Partha was working as D.C.I.B. at Mercara. PW4 has deposed that on 22.3.2001 at 3.30 p.m., Assistant Sub-Inspector of Police received credible information regarding possession of counterfeit/fake currency notes. The Assistant Sub-Inspector of Police, PW4 and other police staff proceeded to Virajpet. PW4 has deposed the informant who had given credible information showed one person who was near Hospital road at Virajpet. PW4 and others apprehended that person, who was later identified as accused No.1 and accused had a purse in his right hip pocket which contained 13 fake currency notes of 50 rupees denomination and 3 genuine notes of 50 rupees denomination. PW4 apprehended the accused and seized fake currency notes, prepared mahazar and produced accused No.1 before the jurisdictional police officer.
During cross-examination, PW4 has deposed that they were 6-7 persons when they apprehended accused. He has deposed that accused was apprehended near the 5 house of one Sophi. The accused had kept counterfeit currency notes in valet. PW4 has deposed that by mere glance it was possible to make out that 13 currency notes were fake currency notes. Thus from the evidence of PW5, we find that accused was apprehended and he was in possession of fake currency notes of 50 rupees denomination.
8. At the relevant time, PW6 - Achuthan Nair was working as Assistant Sub-Inspector, D.C.I.B, Madikeri. PW6 has deposed that on 22.3.2001 when he was on duty, he received reliable information that the accused - Muneer was dealing with counterfeit currency notes in Virajpet. Therefore, he left from Madikere and reached Virajpet at 4.45 p.m. He has deposed that they summoned one Belliappa and Pavan as witness. The informant identified accused No.1 and PW6 and others apprehended him and he was found in possession of 16 currency notes of 50 rupees denomination, out of them 3 were genuine notes and 13 were fake currency notes. 6 PW6 seized the currency notes (genuine and fake) from the possession of accused No.1 and prepared a mahazar. The accused was produced before the jurisdictional police officer. The first information was lodged by PW6.
During cross-examination, PW6 has deposed that reliable information given to him was not treated as first information. Therefore, he had not registered the first information. The Superintendent of Police had instructed him that the first information report has to be registered in the jurisdictional police i.e Virajpet Police Station. PW6 has deposed that accused was arrested in a public place. There were shops near the place of apprehension of accused. PW6 has deposed that he had recorded the voluntary statement, which in my considered opinion has no bearing on the seizure of counterfeit currency notes from the possession of accused. PW6 had recovered the counterfeit currency notes from the possession of accused, presumably, after searching the person of accused. The statement of 7 accused recorded by the police subsequent to the seizure of counterfeit currency notes does not fall under provisions of Section 27 of the Evidence Act.
9. At the relevant time, PW7 - P.K.Biddappa was working as Head Constable in Virajpet Town Police Station. He has given evidence relating to registration of the first information and the despatch of the first information to the jurisdictional Magistrate. He has deposed that after taking counterfeit currency notes from the possession of accused, he had prepared the mahazar.
10. At the relevant time, PW8 - was working as Sub- Inspector of Virajpet Police Station. He has deposed about registration of the case and part of investigation of the case. PW9 - K.P.Uttaiah has given evidence relating to completion of investigation and submission of final report against the accused.
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11. Sri.C.R.Gopalaswamy, the learned counsel for the accused has made following submissions:
(i) The prosecution has sought to prove the offence alleged against accused from the evidence of police officials. The private witnesses have not supported the case of the prosecution.
(ii) The first information was not registered before the apprehension of accused and seizure of fake currency notes from the possession of accused.
Therefore, the trial is vitiated.
(iii) The prosecution has failed to adduce evidence to prove that counterfeit/fake currency notes seized from accused had such features, that mere look of the currency notes was sufficient to make out they are counterfeit/fake currency notes and that accused was in conscious possession of fake currency notes.
(iv) The learned counsel for the accused relying on the reports submitted by the experts of the Reserve Bank of India would submit that distinguishing 9 features noted in the report would not bring the seized currency notes any where nearer to the counterfeit or fake currency notes. The report gives the impression that the currency notes were imitation currency notes. Therefore, the prosecution has failed to prove an offence punishable under Section 489(c) IPC.
12. The learned counsel for the accused has placed reliance on a decision reported in 2013 AIR SCW 6386 (in the case of LALITA KUMARI vs. GOVT. OF U.P. & ORS.), wherein the Supreme Court has held thus:
"(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessary for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.10
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which case preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:11
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/ laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously 12 reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
13. In the case on hand, what was received by PW6 was the reliable information and not the first information. The law is fairly well settled that the credible information protected under Section 125 of Evidence Act cannot be treated as first information relating to commission of a cognizable offence. In afore stated judgment, the Supreme Court has held what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In the case on hand, police had reliable information probably from a police informer. The jurisdictional police officer had not received first information (either oral or in writing) disclosing commission of a cognizable offence. Therefore, the submission of the learned counsel for accused that without registering the first information report, the accused should not have been arrested and fake 13 currency notes should not have been recovered from possession of accused, cannot be accepted.
14. It is true that the independent witnesses have not supported the case of prosecution. The evidence of police officers regarding apprehension of accused and seizure of fake currency notes from possession of the accused is consistent and credible.
15. It is not the case of accused that fake currency notes seized in some other case were planted to concoct a case against the accused. The Investigating Officer has deposed that mere glance of currency notes seized from possession of accused was sufficient to hold that they are fake currency notes. The report submitted by the expert of Reserve Bank of India (Ex.P9) discloses that on examination of notes bearing No.1BD 881805, 1BD 881806 it was found:-
(i) Notes are colour xerox
(ii) Watermark is not observed
(iii) Security thread is not observed 14
(iv) Numbers are not printed with fluorescent ink On examination of the notes bearing No.9NS 171740, 9 DE 038877 and OMV 035462, it was found:
(i) Watermark is simulated
(ii) Security thread is not genuine
(iii) Sizes of the notes are not correct
(iv) Numbers are not printed with fluorescent ink In the circumstances, it is not possible to accept the contention that accused did not have reasons to believe that they were fake currency notes.
16. The learned counsel for the accused would submit that the Trial Judge has acquitted other accused. The learned counsel further submitted that the prosecution has failed to prove the source of fake currency notes.
It is relevant to state that offences under Sections 489-A, 489-B, 489-C, 489-D and 489-E are distinct offences. The ingredients are distinct. In other words, the proof of these offences is not inter dependent. Therefore, it was not necessary for the prosecution to 15 prove the origin of counterfeit currency notes. It was not necessary for the prosecution to prove as to how the accused had come in possession of fake currency notes.
17. The learned counsel for accused has submitted that accused was aged about 20 years, therefore possibility of accused being an innocent possessor of fake currency notes, cannot be rules out.
During cross-examination of prosecution witnesses, there is not even a suggestion to probablise that accused was an innocent possessor of fake currency notes. In the statement recorded under Section 313 Cr.P.C, accused has not offered explanation for being in possession of fake currency notes or stated circumstances to probablise that he was an innocent possessor of fake currency notes. Therefore, the submission of learned counsel for accused that the accused was an innocent possessor of fake currency notes cannot be accepted.
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18. The learned counsel for the accused submits that accused was aged about 20 years at the time of commission of offence. Therefore, a lenient view may be taken with regard to the sentence.
The prosecution has proved that accused has committed an offence punishable under Section 489-C. The offence committed by accused is an offence committed against the nation. The offence committed by accused was a premeditated offence. It is not an offence that was committed in the spur of moment. On consideration of nature of offence, I do not find any reasons to reduce the sentence. In the result, the appeal is dismissed.
Sd/-
JUDGE AHB