Kerala High Court
B.K. Abdul Rehiman vs State Of Kerala on 6 March, 2019
Equivalent citations: AIRONLINE 2019 KER 1077
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940
CRL.A.No.244 of 2007
JUDGMENT IN SC 205/2005 of SESSIONS COURT, KASARAGOD
DATED 27-01-2007
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APPELLANT/ACCUSED A1 & A2 :-
1 B.K. ABDUL REHIMAN, S/O.KUNHIPPA,
KANNADIPARA, BEKUR VILLAGE,
KASARAGOD TALUK.
2 MUHAMMAD FAROOK P., S/O.BAROOTTY
AMMAR HOUSE, NAYA BAZAR,
UPPALA.
BY ADV. SRI.P.K.MUHAMMED
RESPONDENT/COMPLAINANT :-
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.244/2007
-: 2 :-
JUDGMENT
The appellants are the two accused in S.C.No.205/2005 of the Court of Session, Kasaragod.
They faced trial before the learned Sessions Judge, Kasaragod under Sections 489B and 489C IPC on the allegation that at about 1.30 p.m. on 20.2.2001, at the fish market at Kasaragod, they were found possessing and using counterfeit currency notes for purchasing fish. They were seen using such fake currency notes by a nearby trader, who, with the help of the others, caught the two accused and informed the police over telephone. On getting information, the Additional Sub Inspector of Police, Kasaragod came at the fish market, and he saw the two accused being caught by informant and others. The two accused were handed over to the custody of the Additional Sub Inspector, who, on search, saw one counterfeit currency of Rs.500/- in the possession of the 2nd accused, and two torn currency notes of Rs.500/- in the possession of the 1 st accused. The Additional Sub Inspector arrested the two accused CRL.A.No.244/2007 -: 3 :- on the spot, and seized the counterfeit currency notes as per a mahazar. On the basis of the arrest and seizure, a crime was registered at the Police Station. Another Sub Inspector took over investigation, and later, investigation was taken over by the CBCID. After investigation, the CBCID submitted final report in court.
2. The two accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against them. The prosecution examined six witnesses, and proved Exts.P1 to P6 documents in the trial court. The counterfeit currency notes were identified as MO1 and MO2. The two accused projected a defence of total denial. They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.5,000/- each under Section 489B IPC, and to undergo another term of rigorous imprisonment for one year each and to pay a fine of Rs.2,000/- each under Section 489C IPC. CRL.A.No.244/2007 -: 4 :- Aggrieved by the judgment of conviction dated 27.1.2007, the two accused have come up in appeal.
3. On hearing both sides, and on a perusal of the materials, I find no reason for interference in the findings or the conviction made by the court below against the appellants under Section 489C IPC, but, the conviction and sentence under Section 489B IPC is liable to be set aside. Two independent witnesses examined by the prosecution in the trial court turned hostile. Both are the local traders doing some trade at the fish market. They are PW2 and PW3. Of them, PW2 is the person, who informed the police. These two witnesses are the attestors to the detection mahazar. There is nothing to show that anybody had seen the two accused in any manner using the counterfeit notes at the fish market. Of course, the prosecution case is that PW2 and PW3 had seen the two accused using counterfeit currency notes for purchasing fish at the market, and the two accused were in fact caught by them, and later, they handed over the accused to the police. But the two witnesses did not support the CRL.A.No.244/2007 -: 5 :- prosecution. The evidence of the Sub Inspector, who detected the offence would prove only the seizure of counterfeit notes from the possession of the accused, and that will prove only the offence under Section 489C IPC. Mere possession of counterfeit currency, with the knowledge that it is counterfeit, and also with the object of it being used for some purpose is punishable only under Section 489C IPC. To sustain the conviction under Section 489B IPC, there must be evidence to show that the two accused had in any manner used the counterfeit notes. When such evidence is not there, or when the material witnesses examined by the prosecution to prove this aspect turned hostile, the conviction under Section 489B IPC will have to be set aside.
4. PW1 is the Additional Sub Inspector, who detected the offence. He has given evidence that on getting information from PW2, he reached the fish market at Kasaragod with police party, and he saw the two accused being caught by the traders at the market. They handed over the accused to his custody, and he conducted a search of the body of the two accused. On CRL.A.No.244/2007 -: 6 :- search, he could see pieces of two counterfeit currency of Rs.500/- in the possession of the 1 st accused, and another counterfeit note of Rs.500/- in the possession of the 2nd accused. He arrested the two accused, and seized the counterfeit notes. The Sub Inspector also proved the detection mahazar as per which, the counterfeit notes were seized by him. The cross examination made by the defence could not bring out anything to discredit the evidence given by the Additional Sub Inspector. I find no reason to disbelieve him or to reject his evidence.
5. PW4 is the Additional Sub Inspector, who initially investigated the case, and investigation was later taken over by the CBCID. PW5 is the Inspector of the CBCID, who investigated the case, and PW6 is the Deputy Superintendent of Police, CBCID, who submitted final report in court. Their evidence is only formal. There is nothing to show that there was any flaw or irregularity in the investigation conducted by PW5.
6. Ext.P6 is the report of examination of the counterfeit currency notes from the Government of India CRL.A.No.244/2007 -: 7 :- Bank Note Press. This is admissible under Section 292 Cr.P.C. This report refers to the counterfeit currency notes seized by PW1 as per the detection mahazar and sent for examination. The report shows that on examination at the Bank Note Press, the notes received there were identified as counterfeit notes. The genuineness of the Ext.P6 report stands not challenged.
7. The two accused were found possessing counterfeit notes at the fish market at Kasaragod. Evidence convinces the court that they possessed the currency notes with the knowledge that it is counterfeit currency notes. That they came at the fish market with the counterfeit notes would show that they came there with the object of it being used for some purpose. Thus, I find that the essential ingredients of Section 489C are very much proved, and the conviction under Section 489C IPC is liable to be confirmed.
8. Now, the question of sentence. The sentence imposed by the trial court under Section 489C IPC is rigorous imprisonment for one year each, and a fine of CRL.A.No.244/2007 -: 8 :- Rs.2,000/- each. As regards the fine sentence, I find no reason for interference. The detection was in February, 2001. 18 years have elapsed since the date of detection. The accused were aged 55 years and 25 years respectively on the date of detection. The 1 st accused must be now aged 73 years. No other case of similar nature is seen reported against them, and there is also no similar conviction to their credit. On a consideration of the various aspects, I find that the minimum sentence in view of Section 354(4) Cr.P.C. will be the adequate sentence, besides the fine sentence imposed by the trial court.
In the result, the appeal is allowed in part. The appellants are found not guilty of the offence under Section 489B IPC, and they are acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against them under Section 489B IPC in S.C. No.205/2005 will stand set aside. But, the conviction against the appellants under Section 489C IPC is confirmed. However, the substantive sentence imposed by the trial court under CRL.A.No.244/2007 -: 9 :- Section 489C IPC will stand modified and reduced to rigorous imprisonment for three months each. The fine sentence imposed by the trial court under Section 489C IPC is maintained, with the default sentence thereon. The appellants will surrender before the trial court within four weeks from this date to serve out the modified sentence, and to make payment of the fine amount voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence and realise the amount of fine, or enforce the default sentence.
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P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/8.3.2019