Kerala High Court
Sivadasan.N.K vs State Of Kerala on 13 January, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1847 of 2008()
1. SIVADASAN.N.K., S/O.KUTTAPPAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.T.R.ASWAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :13/01/2009
O R D E R
V.K.MOHANAN, J.
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Crl.A.Nos. 1847 & 2427 of 2008
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Dated this the 13th day of January, 2009
J U D G M E N T
These two appeals are arising out of the judgment dated 4.8.2008 in S.C.No.724 of 2005 of the court of Additional District and Sessions Judge, Fast Tract (Adhoc-III), Kozhikode. The above case is instituted upon a police report for the offence punishable under Section 489C read with Section 34 I.P.C. By the impugned judgment, the trial court found that both the accused, who faced the trial, are guilty of the charges levelled against them and accordingly, they were convicted and sentenced to undergo rigorous imprisonment for a period of three years each. Set off is allowed under Section 428 of the Cr.P.C. Challenging the above conviction and sentence, the first accused preferred Crl.A.No.1847 of 2008 and consequent to the suspension of the execution of the sentence, he was released on bail. The appellant in Crl.A.No.2427 of 2008, namely the second accused is undergoing imprisonment pursuant to the impugned judgment and hence he preferred the above appeal from the jail.
2. The prosecution case is that at about 8 a.m. On 27.2.1999, accused Nos.1 and 2 and the third accused were found CRL.A. NOs.1847 & 2427 of 2008 :-2-:
keeping 11,14 and 1 counterfeit currency notes of Rs.500/- denomination respectively in their possession in Room No.303 of Coronation Lodge in M.P.Road, Kozhikode, in furtherance of their common intention to use the same as genuine currency notes. Based upon the above allegation, Crime No.39 of 1999 was registered in the Kozhikode Town Police Station for the offences under Sections 489B and C of I.P.C. Subsequently, the case was entrusted with the C.B.C.I.D., Kozhikode wherein the case is re-numbered as 49/CR/99 of C.B.C.I.D., Kozhikode.
3. After investigation, a final report was filed against all the accused persons before the Judicial First Class Magistrate Court -I, Kozhikode where the case was taken on file as C.P.No.40 of 2004. But only the first accused appeared before the Magistrate Court. Thus, the learned Magistrate committed the case against the first accused to the Sessions Court, Kozhikode wherein S.C.No.724 of 2005 was taken on file and made over to the First Additional Sessions Court, Kozhikode for trial. As the first accused alone appeared before the committal court, the learned Magistrate split up the case against the absconding accused 2 and 3 and refiled as C.P.No.34 of 2005 and later transferred to the Register of Long Pending Cases and CRL.A. NOs.1847 & 2427 of 2008 :-3-:
the same is pending as L.P.No.46 of 2006. Later, when the second accused was produced before the court, the learned Magistrate refiled the case against him as C.P.No.34 of 2007 and after complying with the legal formalities, the case was committed to the Sessions Court and the case was taken on file as S.C.No.763 of 2007 and then made over to the First Additional Sessions Court. Subsequently, both the cases were withdrawn by the Sessions Judge from the file of the First Additional Sessions Court and made over to the trial court for disposal. Since both the sessions cases are arising out of the same crime and records and evidence to be adduced by the prosecution are one and the same, S.C.No.763 of 2007 was amalgamated with S.C.No.724 of 2005, the present case. Thus, the appellants herein faced the trial.
4. After considering the prosecution materials and on hearing them and the defence, a formal charge was framed for the offences only under Section 489C read with Section 34 I.P.C.
and the same were read over and explained to the accused who pleaded not guilty. Thereafter, the prosecution adduced its evidence consisting of oral testimonies of Pws.1 to 5 and the documentary evidence such as Exts.P1 to P8. Mos.1 to 5 were CRL.A. NOs.1847 & 2427 of 2008 :-4-:
marked and identified as material objects. When the incriminating circumstances, which emerged during the evidence of prosecution, put to the accused, they denied the same. After considering the evidence and materials on record, the trial court found that the accused were guilty of the charges levelled against them. Accordingly, after hearing them, they were sentenced to undergo rigorous imprisonment for three years. It is the above conviction and sentence challenged by the appellants/accused by filing the above two separate appeals. Crl.A.No.1847 of 2008 is prosecuted by Advocate Sri.T.R.Aswas engaged by the appellant according to his choice. In the case of Crl.A.No.2427 of 2008, as the appellant is undergoing imprisonment and the appeal is preferred from the jail, State Brief Smt.K.V.Reshmi was appointed to prosecute the jail appeal.
5. Thus, I have heard Mr.T.P.Aswas, learned counsel appearing for the appellant in Crl.A.No.1847 of 2008 and Smt.Reshmi.K.V., State Brief appointed to prosecute Crl.A.No.2427 of 2008 and also the learned Public Prosecutor.
6. The prosecution mainly depends upon the evidence of PW1 and PW4 and also the documentary evidence to substantiate its case. PW1 is the officer who detected the crime CRL.A. NOs.1847 & 2427 of 2008 :-5-:
when he was working as Sub Inspector of Police, Town Police Station, Kozhikode, at that time. PW1 deposed before the court that at about 8 a.m.on 27.2.1999, he got information that three persons with counterfeit notes of Rs.500/- denomination are staying in Room No.303 in the third floor of Coronation Lodge in Moideenpally Road. According to him, as there was no sufficient time to get sanction from the court, he preferred Ext.P6 search memo and sent the same to the court and thereafter proceeded to the above lodge along with police party and reached the above lodge by 8 a.m. It is his case that he went to Room No.303 along with the room boy and receptionist of the lodge and when the door of the room was knocked, it was opened from inside. Both the accused persons and Anwar (accued No.3 in the police charge) were present in the room. According to PW1, the room was taken in the name of Anwar and he further deposed that he searched the body of the accused persons in the presence of witnesses and it is seen that the first accused had kept 11 counterfeit currency notes of Rs.500/- denomination and 21 currency notes of Rs.100/- in the left side pocket of his shirt and those notes were seized as per Ext.P1 mahazar at 8.45 a.m. Similarly, on the body search of the second accused, it is seen CRL.A. NOs.1847 & 2427 of 2008 :-6-:
that 14 counterfeit notes of Rs.500/- denomination and 11 currency notes of Rs.100/-, one currency note each of Rs.500/- and Rs.50/- respectively are kept in his pocket. PW1 seized those notes as per Ext.P2 mahazar. PW1 categorically stated that no currency notes were found on the body of Anwar. But, one counterfeit note of Rs.500/- denomination was found kept in a book lying on the cot in the room in which the name of third accused is written and the same was seized as per Ext.P3 search list. The accused persons were arrested and the arrest memos were prepared connected with the arrest and he identified Ext.P4 series. Thereafter, he reached in the Police Station along with the accused persons and the thondi articles and thus, he registered Ext.P5 F.I.R. The thondi articles were produced before the court on 2.3.1999. MO1 and MO2 series are the counterfeit notes respectively recovered from accused Nos.1 and 2. MO3 note is the counterfeit note recovered from the book. The genuine currency notes seized from the possession of the first and second accused persons were marked as MO4 series and MO5 series respectively.
7. PW4 is the Head Constable who accompanied PW1 at the time of search and seizure. When he was examined, he CRL.A. NOs.1847 & 2427 of 2008 :-7-:
had deposed in terms of the deposition of PW1 with respect to the material particulars. Though the prosecution cited PWs.2 and 3 as independent witnesses to prove the search and seizure, they turned hostile. But PWs.2 and 3 admitted their signatures in EXts.P1 to P3 and also the arrest memo. Mainly relying upon the evidences of PWs.1 to 4 and other documentary evidence, the trial court found that the accused were guilty of the offences charged against them and accordingly, they were sentenced.
8. Learned counsel Mr.Aswas and Mr.Reshmi appearing for the appellants vehemently argued that the judgment of the trial court is liable to be set aside as the trial court simply believed the interested version of PW1 alone, and entered into a conviction and imposed highly disproportionate sentence against the appellant/accused. Learned counsel pointed out that the entire case of the prosecution is doubtful since except the seizure of the fake notes, no other investigation was conducted by the prosecution and the prosecution has miserably failed to find out the source of the fake notes and there was no allegation attributing the overt act with respect to the role played by each of the accused. It is argued that though PW1 has admitted in his evidence that he had verified the register of CRL.A. NOs.1847 & 2427 of 2008 :-8-:
the Coronation lodge, no such register was seized by PW1 and therefore, non-seizure itself will go against the prosecution. According to the learned counsel, as there is no other independent evidences apart from the interested version of PW1, the non-seizure of the register will go against the prosecution, otherwise, the same would have been a valuable piece of evidence in favour of the prosecution. It is also the case of counsel that before the search of the body of the accused, PW1 and other Police party themselves were not subjected to body search. It is also pointed out that the arrest was done in violation of the guidelines issued by the Apex Court. Another point strenuously argued by the learned counsel is that though the prosecution has claimed that the search and seizure was effected on 27.2.1999 at about 8 a.m., the thondi articles were reached in the court only on 2.3.1999 and there is substantial delay in reaching the article in the court especially when the court is within the vicinity of the Police Station and such delay was not explained. It is also argued that no further investigation was conducted after the seizure and the prosecution has no idea regarding the source of fake notes. It is also the point placed by the counsel for the appellant that the identity of the accused is CRL.A. NOs.1847 & 2427 of 2008 :-9-:
not fully established through independent source. The other legal point raised is that even though the entire prosecution case is accepted as true, for the argument's sake, what proved is only the possession and the other essential requirement of Section 489C is not proved by the prosecution and therefore, the conviction and sentence awarded by the court below is not sustainable. Hence the counsel for both the appellants submits that the accused are entitled to get clear acquittal.
9. Per contra, Sri.Amjad Ali, the learned Public Prosecutor submits that the crime itself was detected on the basis of the prior information received by PW1. According to the learned Public Prosecutor, the evidence of PW1 is free from any infirmity or contradiction and there is no legal bar in accepting the evidence of PW1. It is also pointed out by the learned Public Prosecutor that the evidence of PW1 is supported by the contemporaneous documents like Exts.P1 to P3 and the arrest memo Ext.P4 series and also the F.I.R. The Public Prosecutor also pointed out that Ext.P6 is the search report which contains all the minute details including description of notes recovered regarding the seizure effected by the police party. According to the learned Public Prosecutor, the minor discrepancies that CRL.A. NOs.1847 & 2427 of 2008 :-10-:
occurred in the evidence of PW1 and PW4 are negligible and the same will not affect the prosecution case as such. Thus, the learned Public Prosecutor submits that the trial court has considered all these points during the trial and came into a conclusion in favour of the prosecution and against the accused and therefore, no interference is warranted in appeal.
10. I have carefully considered the contentions advanced by both counsel for the appellants as well as the learned Public Prosecutor and also perused the evidence and materials on record.
11. It is true that as indicated earlier, the main evidence of the prosecution to substantiate the case against the accused is that of the oral testimony of PWs.1 to 4 and the documentary evidence such as Exts.P1 to P6. Right from the beginning, the prosecution case is that PW1 and party conducted the search in Room No.303 of Coronation lodge on 27.2.1999 on the basis of the prior information received by the Police. In this juncture, it is relevant to note that in the deposition of PW1, he had deposed regarding the nature and the contents of the information which is received by him. He had categorically stated that at 8 a.m. on 27.2.1999, he got information that three persons with counterfeit CRL.A. NOs.1847 & 2427 of 2008 :-11-:
currency notes of Rs.500/- denomination are staying in Room No.303 in the third floor of Coronation lodge in M.P,.Road, Kozhikode. From the above information, it can be seen that the information is not vague, but very particular regarding the number of persons involved and the nature of the counterfeit notes and the actual place of their stay. It is on the basis of the above specific information, PW1 and party went to the spot and conducted search and seized counterfeit notes. Ext.P6 is the report sent to the court in advance as there was no time for getting permission for the court. Ext.P6 report was reached in the court on 27.2.1999 itself and on a perusal of Ext.P6, it is further clear that the same contained the specific information received by PW1. Besides the above, Exts.P1,P2,P3 and P4 are contemporaneous documents which describe the proceedings adopted by PW1 towards the seizure of the counterfeit notes and also the arrest of the accused. As pointed out by the learned Public Prosecutor, though PWs.2 and 3 turned hostile, they have admitted their signature in those documents. Thus, it can be seen that this is not a case where the prosecution has not attempted to adduce independent evidence, but the independent witnesses viz., PWs.2 and 3 were examined, but they turned CRL.A. NOs.1847 & 2427 of 2008 :-12-:
hostile.
12. The learned counsel for the appellant pointed out that PW4 the Head Constable who accompanied PW1 at the time of search has not fully supported the evidence of PW1. Thus, according to the learned counsel, there is only an interested version of PW1 in support of the prosecution case and there is no independent evidence to corroborate the evidence of PW1 and even PW4 official witness has not fully supported the prosecution case. There is no rule that the evidence of official witnesses cannot be admitted and acted upon unless it is supported by evidence from independent sources. Of course, the necessity of corroboration of the evidence of official witnesses from independent sources can be insisted when the evidence of official witnesses has some defect namely infirmities or discrepancies. In the present case, regarding the procedure adopted by PW1 and the seizure, there is not even a minor contradiction or infirmity. What pointed out by the learned counsel is that PW1 has violated certain norms while effecting search and seizure and also while arresting the accused. In support of the above contention, the learned counsel pointed out that though PW1 has admitted in his evidence that he had CRL.A. NOs.1847 & 2427 of 2008 :-13-:
verified the register of the Coronation lodge, the same was not seized. Therefore, according to the counsel, the non-seizure of the said register will go against the prosecution since it was a valuable piece of documentary and contemporaneous evidence in support of the prosecution case. I am unable to accept the above contention. It is worthwhile to remember that it is a case where, as pointed out earlier, the search was conducted pursuant to the prior information received by PW1. Ext.P6 search report contained the above information and Ext.P6 was reached in the court on 27.2.1999 itself. Probably for the purpose of locating Room No.303, PW1 might have asked the room boy and receptionist and verified the register, but even in the absence of such verification, PW1 can directly enter into Room No.303 because the information is very specific. Therefore, according to me, non-seizure of register will not affect the prosecution case. It is also relevant to note that though the articles were produced before the court only on 2.3.1999, the other contemporaneous documents were in the court on the date of occurrence itself i.e., on 27.2.1999, and those documents such as F.I.R, search report etc. contained the details of the counterfeit notes seized by PW1 from the above lodge. Therefore, it can be seen that even CRL.A. NOs.1847 & 2427 of 2008 :-14-:
though counterfeit notes were not produced on 27.2.1999 itself before the court, no prejudice will be caused to the accused. When PW1 was examined, he explained and answered that the investigation was going on and therefore, he could not produce the articles before the court in time. It is true that the article could have been produced before the court on 27.2.1999 itself or on 1.3.1999. In the particular facts and circumstances involved in the case, I am of the opinion that the non-production of the materials objects before the court either on 27.2.1999 or 1.3.1999 will not adversely affect the right of the accused and no prejudice is caused to them because the contemporaneous documents like Exts.P1,P2,P3,P5 and P6 were reached in the court on 27.2.1999 itself which documents contained the details of the counterfeit notes and the same are tallied with what produced before the court on 2.3.1999. Hence, it cannot be said that even though there is one or two days delay, it will cause prejudice to the accused.
13. Another point argued by the learned counsel is the violation with respect to the body search of the accused done by PW1 and also regarding the arrest. During the cross-
examination, he had stated that he had examined the body of the CRL.A. NOs.1847 & 2427 of 2008 :-15-:
first accused and before that, he requested the witnesses to examine his body and they have accordingly examined the body of PW1. PW1 further stated that the accused did not examine his body. Of course, PW4 did not support the above version of PW1. From the evidence of PW1, I am of the view that the above defect pointed out by the counsel is clearly answered by the evidence of PW1 and further EXt.P4 series of arrest memo contained the signature of PWs.2 and 3 though they turned hostile to the prosecution. So regarding the arrest also, when PW1 was examined, he had stated that the details of arrest have to be intimated to the relatives of the accused and he was aware of the same and he had also stated that it was intimated. In answer to a question whether the name of relative of first accused was endorsed in the arrest memo, he had stated that it was not written there. But, he had added that the same was done in the remand report. Regarding the arrest of second accused, the suggestion was that second accused was summoned to the Police Station on 26.2.1999 and the arrest was recorded. PW1 denied the above suggestion. From the above evidence of PW1 and the documents mentioned above, I am of the view that the arrest of the accused was done in accordance CRL.A. NOs.1847 & 2427 of 2008 :-16-:
with the procedure and no prejudice is caused to the accused.
14. The another contention raised by the learned counsel for the appellant is that there is no further investigation in the case except the seizure of the counterfeit notes. It is pointed out that the prosecution has no specific case regarding the overt act of the accused. It is also pointed out that the prosecution did not conduct any further investigation to trace out the source of the counterfeit notes. In this juncture, it is relevant to note that the prosecution case itself is only under Section 489C and according to the prosecution, the above offence is proved by the seizure of the counterfeit notes from the possession of the accused. Going by the evidence of PW1 and the documentary evidence such as Exts.P1,P2 mahazar and Ext.P3 search list, the prosecution allegation is clear and the same is substantiated.
According to the prosecution, the accused were found in possession of the counterfeit notes which are seized from their respective possession and thereby, they committed the offence under Section 489C. The prosecution has no allegation that they have procured these notes from such and such place or such and such person etc. Of course, the prosecution ought to have conducted an investigation in that regard, but in the present case, CRL.A. NOs.1847 & 2427 of 2008 :-17-:
the allegation is limited to Section 489C and therefore, in this case, their allegation is complete. Even then, the learned counsel further argued that prosecution has miserably failed to establish the other ingredients of Section 489C by adducing cogent evidence. Though I have already stated the prosecution case, in this juncture, it appears to me that it is apposite to repeat the same once again. The prosecution case is to the effect that pursuant to the information, they conducted a search in Room No.303 of Coronation Lodge and during such search, the accused were found in possession of such and such numbers of counterfeit notes. It has also come out in evidence that when PW1 and party reached in front of Room No.303 of Coronation Lodge, the same was locked from inside and when the door was knocked by the room boy, the same was opened from inside. Thus, from the attendant circumstances, it is crystal clear that they were in possession of these much numbers of counterfeit notes for the purpose of sale. Section 489C says:
"489C. 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 used as genuine, shall be punished with imprisonment of either CRL.A. NOs.1847 & 2427 of 2008 :-18-:
description for a term which may extend to seven years, or with fine, or with both."
On a reading of Section 489C and on analysing the evidence, it is clear that the prosecution has established the possession which is the essential ingredient of the above section. In the present case, the prosecution has discharged that burden effectively. It is for the prosecution to further establish that the possession of such forged or counterfeit notes was with the knowledge of the accused or having reason to believe the same as forged or counterfeit and intending to use the same as genuine or that it may be used as genuine. From the above mentioned attendant circumstances, any prudent man can come to a conclusion that the counterfeit notes which were seized from the possession of the accused, if it is not prevented by the timely intervention of PW1, may be used as genuine. There is no explanation for the accused as to how they found in possession of the seized counterfeit notes in a closed room locked from inside. In the impugned judgment itself, the trial court has considered two judgments. The Mysore High Court in the decision reported in Re. Basi Reddy and others [1972 Cri.L.J.1141] had held ".........the possession by A1 of 38 counterfeit CRL.A. NOs.1847 & 2427 of 2008 :-19-:
currency notes of five rupee denomination and one counterfeit currency note of one hundred rupee denominations under the circumstances will undoubtedly constitute sufficient ground for drawing the inference that the intention of A1 was to use them as genuine or that they may be used as genuine......" (emphasis supplied). The Apex Court has held in Ponnuswamy v. State [1995 CRI.L.J.2658] that "........the appellant had no explanation to offer as to wherefrom had he obtained those forged currency notes. Silence on the part of the appellant in such circumstances would by itself be a telling circumstance which would weigh against him in the consideration of the prosecution evidence led against him. ......" As pointed out earlier, the attendant circumstances in the case attracted the ingredients of Section 489C. Therefore, the contention raised by the learned counsel under that count also goes. In the light of the above discussion and the evidence and materials on record, I am of the opinion that the finding arrived on by the court below is absolutely valid and legal and no interference is called for. Consequently, the conviction is confirmed.
15. Regarding the sentence, Smt.Reshmi.K.V, learned counsel appearing for the appellant in Crl.A.No.2427 of 2008 CRL.A. NOs.1847 & 2427 of 2008 :-20-:
submits that the appellant had already undergone nine months imprisonment and therefore, a lenient view may be taken especially, when the penal provision is not particular in contemplating both the sentence of imprisonment and fine. As per Section 489C, the maximum punishment contemplated is seven years or with fine or with both. But the trial court has chosen to impose only three years imprisonment. This Court cannot ignore the fact that a parallel economic system is existing in this country, which is a great threat to our economy. It is the duty of every citizen to prevent such attempt and to make use of all opportunities to save this country by preventing such offences. In the present case, it is proved that the accused persons have involved in the commission of above offences and thereby knowingly or unknowingly actively involved and became part and parcel of the above mentioned parallel economic system even though the amounts and counterfeit notes are comparably lesser, they deserve no leniency. Therefore, the sentence awarded by the court below is also confirmed. Bail bond executed by the appellant in Crl.A.No.1847 of 2008 is cancelled and he is directed to appear before the trial court within one month from today to receive the sentence and if there is any failure on his CRL.A. NOs.1847 & 2427 of 2008 :-21-:
part in appearing, the trial court is free to take coercive steps to secure his presence and to execute the sentence.
I find no merit in the appeals and the same are accordingly dismissed.
V.K.Mohanan, Judge MBS/ CRL.A. NOs.1847 & 2427 of 2008 :-22-:
V.K.MOHANAN, J.
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J U D G M E N T DATED: 10-2008 CRL.A. NOs.1847 & 2427 of 2008 :-23-: