Karnataka High Court
State Of Karnataka vs Afthab Ahammed Khan on 1 June, 2023
Crl.A.No.100132/2019
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100132 OF 2019
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
YELLAPUR POLICE STATION, UTTARA KANNADA, DIST:
KARWAR, THROUGH THE ADDL. STATE PUBLIC
PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT
OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI.V.M.BANAKAR, ADDITIONAL SPP)
AND:
AFTHAB AHAMMED KHAN,
S/O. IBRAHIM KHAN, AGE: 47 YEAR,
R/O: H.NO.5, MOHIDDIN STREET,
MADEEN COLONY, BHATKAL DIST: KARWAR.
.. RESPONDENT
(BY SRI.MAQBOOL PATIL, ADV. FOR SRI.K.L.PATIL, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C. SEEKING TO, A) GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITAL DATED
02.07.2018 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
UTTARA KANNADA, DIST: KARWAR IN S.C.NO.44/2012; B) TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
02.07.2018 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
UTTARA KANNADA, DIST: KARWAR, IN S.C.NO.44/2012; AND
C) CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 489(B)(C) OF IPC.
Crl.A.No.100132/2019
2
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.05.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ASHOK
S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed this appeal under Section 378(1) & (3) of Cr.P.C. challenging the impugned judgment and order of acquittal dated 02.07.2018 passed by the Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.44/2012 for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC.
2. Brief background of the case:
It is the case of the prosecution that the accused with an intention of circulating 75 fake notes of Rs.1,000/- denomination, went to Yallapur on 14.01.2012 and accused No.1 went to shops of C.Ws.10 and 11 with an intention of circulating fake notes of Rs.1,000/- denomination and at that time, Crl.A.No.100132/2019 3 the complainant came to know about the said circulation of notes by the accused and seized 75 fake notes of Rs.1,000/- denominations from the accused and other accused. On 14.01.2012, the complainant came to the police station and lodged the complaint.
On the strength of the said complaint, a case came to be registered against the accused in crime No.8/2012 and the investigation was taken up by the police. After investigation, police filed charge sheet against the accused for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC. The accused produced before the JMFC, Yellapur and were remanded to custody and the charge sheet was filed and thereafter, the learned Magistrate committed the case to the Sessions Court for trial.
3. After committal records were received by the sessions court, accused Nos.1 and 2 were produced before the court and accused No.2 has been Crl.A.No.100132/2019 4 released on bail by virtue of the bail in Crl.Misc.No.153/2012. Subsequently, accused No.1 was also granted bail. Thereafter, the charge for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC was framed. The accused pleaded not guilty and claim to be tried.
4. The prosecution in order to bring home the guilt of the accused examined 16 witnesses as P.Ws.1 to 16 and got marked Exs.P1 to P31 and 103 properties at M.Os.1 to 103. After completion of the evidence, statement of the accused was recorded by the trial court under Section 313 of Cr.P.C. and the case of the accused is of total denial. After hearing the detailed arguments, the learned Sessions Judge formulated the following points:
1) Whether the prosecution proves beyond all reasonable doubt that the accused No.1 and 2 with an intention of circulating fake Crl.A.No.100132/2019 5 notes on 14.01.2012 went to Yellapur and were trying to use 75 fake notes of Rs.1000 denomination as genuine and thereby accused have committed the offence punishable under Section 489B r/w 34 of Indian Penal Code?
2) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place the accused with an intention of circulating fake notes went to Yellapur and the accused No.1 went to the shop of C.Ws.10 and 11 with an intention of circulating fake notes of Rs.1000 denomination and the accused were found possessing 75 fake currency notes of Rs.1000 denomination and thereby the accused have committed the offence punishable under Section 489C r/w 34 of Indian Penal Code?
3) What order?
FINDINGS OF THE SESSIONS COURT:
5. On careful perusal of the entire evidence led by the prosecution, it may be noted that except the evidence of police officers none of them have Crl.A.No.100132/2019 6 supported the case of the prosecution. There is nothing on record to show that M.Os.1 to 75 were seized from the accused and seizure pancha have not properly supported the prosecution story. Merely because accused Nos.1 and 2 were convicted by the District and Sessions Judge, Haveri, it cannot be the sole ground to suspect the accused that they have tried to commit the offences alleged in this case. Since seizure of the fake notes from the accused is not proved by the prosecution and there is no consistent evidence on the part of the prosecution. Under such circumstances prosecution cannot be held to be proved that accused Nos.1 and 2 were possessing fake notes and they were intending to circulate the said fake notes and tried to cheat the public. Hence, in the absence of proper material, the learned Sessions Judge was unable to hold that the prosecution has proved the commission of the offences by accused Crl.A.No.100132/2019 7 Nos.1 and 2 beyond reasonable doubt and answered point Nos.1 and 2 in the negative and against the prosecution and point No.3 that the accused are entitled for acquittal on the ground of benefit of doubt and acquitted the accused for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC.
Aggrieved by the judgment of acquittal, the State has preferred this appeal.
6. We have heard the learned Additional SPP appearing for the appellant-State and learned counsel for the respondents.
7. Learned Additional SPP submits that P.W.1 is the complainant and he has clearly deposed on oath before the trial court that on suspicion he caught hold of accused and on enquiry it is revealed that one Kumar had supplied fake notes for circulation. In the presence of witnesses, P.W.1 has seized the original Crl.A.No.100132/2019 8 notes worth Rs.2,500/-, fake notes, cigarette packs and old monk liquor bottle. He submits that defence has not elicited anything in the cross-examination to disbelieve the truthful version of this witness. Except a bald denial of suggestion that M.Os.1 to 75 did not belong to the accused and nothing worth is elicited. He submits that P.W.2 is the pancha for seizer of M.Os.1 to 75 and also other articles from accused No.1. P.W.2 has supported the case of the prosecution and the same is corroborated with the evidence of P.W.1, i.e., PSI-complainant. He submits that P.W.5 is the liquor shop owner and deposed that he has seen the purchase of whisky bottle by paying Rs.1,000/- and the same was returned to the accused by the cashier of wine shop and further deposed about the possession fake notes. P.W.7 is also a owner of the grocery shop wherein the accused purchased cigarette and gave Rs.1,000/- note and the same was returned Crl.A.No.100132/2019 9 to the accused suspecting the same as fake note. He submits that P.W.8 is the Deputy Manager of RBI and he has produced the certificate as per Exs.P2 to P12 wherein it is clearly mentioned that after examination of suspected currency notes are not genuine Indian bank notes. He submits that oral and documentary evidence produced by the prosecution proves its case beyond all reasonable doubt and the prosecution has placed cogent and reliable evidence, independent witnesses coupled with the evidence of the complainant and other police officials to bring home the guilt of the accused No.1 beyond all reasonable doubt. The trial court without considering the material evidence produced by the prosecution has erroneously acquitted the accused. The impugned judgment and order of acquitted is perverse and unsustainable in the eye of law. Hence, on these grounds, he prayed to allow the appeal.
Crl.A.No.100132/201910
8. Per contra, learned counsel for the respondent submits that though prosecution has examined 16 witnesses, but none of them have stated regarding seizure of fake notes from the custody of the accused. He submits that material witnesses and panchas have turned hostile to the case of the prosecution. He submits that trial court after appreciating the entire evidence of the prosecution witnesses and material placed on record was justified in passing the order of acquittal. He submits that the judgment and order of acquittal passed by the trial court is just and proper and does not call for any interference by this court. Hence, on these grounds he prayed to dismiss the appeal.
9. Having heard the learned counsel appearing for the parties and after bestowing our careful and anxious consideration to the rival contention raised at the bar, we are of the considered Crl.A.No.100132/2019 11 view that following points would arise for our consideration.
1) Whether the judgment of acquittal passed in S.C.No.44/2012 for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC is based on proper appreciation of evidence and as such, it is liable to be sustained?
2) What order?
DISCUSSION AND FINDINGS ON THE POINTS FORMULATED ABOVE:
Re.Point No.1
10. As observed by us hereinabove, the learned Sessions Judge had charged the accused for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC. It is based on the charge sheet material. Learned Sessions Judge has framed charges on 22.02.2013. Plain reading of the charges Crl.A.No.100132/2019 12 framed against the accused are that, with an intention to circulate 75 fake notes of Rs.1,000/- denomination went to Yellapur on 04.01.2012 and accused No.1 went to the shop of C.Ws.10 and 11 with an intention to circulating fake notes of Rs.1,000/- denomination. At that time, the complainant came to the know about the circulation of notes by the accused and conducted the raid and has seized 75 fake notes of Rs.1,000/- denomination from the accused. Thereafter, on 14.01.2012 the complainant came to the police station and lodged the complaint and on the strength of the said complaint, a case came to be registered against the accused in crime No.8/2012 for offences punishable under Sections 489B and 489C r/w Section 34 of IPC.
11. P.W.1 Dyamanna Harlapur is the complainant and he has stated that on 14/1/2012 when he was on patrolling duty along with his staff, he Crl.A.No.100132/2019 13 received credible information that the fake notes are being circulated and so he went near arrack shop and found one person going to arrack shop holding Rs.1000/- note and he purchased on Old Monk Quarter arrack and gave Rs.1000/- note to the shop owner and since the shop owner was having no change so the said person took back said Rs.1000/- note and thereafter the said person went to panbeeda shop and there he took two small size cigarette packs and there also he gave Rs.1000/- note, but there also he could not get change, so he gave another note and took back said Rs.1000/- note. He further says that he suspected the said person and caught hold of him and on enquiry and checking he found the fake notes and he also told that the said notes were supplied to him by one Kumar of Bangalore, He says that thereafter the said notes as well as quarter old monk bottle and two cigarette packs were seized and he has also Crl.A.No.100132/2019 14 seized the mobile hand set and Rs.2500/- which were original note with the accused and has conducted the mahazar as per Ex.P.1. He has identified the mahazar at Ex.P.1 and the complaint at Ex.P.2 and he has also identified the notes. He says that rough sketch of the spot has been drawn as per Ex.P.10 and he has taken photos as per EX.P.3 and 4. In the cross examination he admits that he has not got it written in the complaint that the accused had purchased wine in the shop and then also went to pan shop and purchased cigarette packet. He further says that the accused did not try to run away on seeing them. He has denied that M.Os.1 to 75 are not belonging to the accused. he also admits during the course of cross examination by the learned counsel for the accused No.2 that accused No.2 is not the beneficiary and he did not receive any information regarding properties given by Crl.A.No.100132/2019 15 the accused No.2. He has denied that the accused No.2 has been falsely implicated in the case.
12. Now if we look to the evidence of P.W.2 Parameshwar, he has stated that above 2 1/2 years back when he was returning to his house and was on Hubli Karwar main road, at that time the police called him and took his signature on a paper and he says that no any mahazar was conducted in his presence and he only says that there was a carry bag with the accused and the police took it. He has also sated that the police did not check the said bag in his presence. He has identified his signature on the mahazar Ex.P.1 at Ex.P.1(b). He has identified the photographs. He has been treaded as hostile and in the cross examination he has denied that the police checked the items that were in the bag belonging to the accused and the accused No.1 informed the police that he had brought fake notes for circulating them. He has denied Crl.A.No.100132/2019 16 that the police have seized the said notes from the accused and conducted the mahazar. He has also denied that the police have also seized on old monk quarter bottle and gold flake cigarette packets and also seized original amount of Rs.2,500/- from the accused. He has denied that even though the articles were seized in his presence and the police have conducted the mahazar, but now he s giving false evidence. In the cross examination by the learned counsel for the accused No.2, he clearly says that he does not know the contents of Ex.P.1 and he also says that h cannot say whether notes which are before the court at M.Os.1 to 75 are the original notes or fake notes. He has denied that he had never seen the accused along with carry bag near Devi ground. So it is clear from the evidence of this witness that no any mahazar was conducted in his presence by seizing fake notes from the accused.
Crl.A.No.100132/201917
13. P.W.3 H.M Khasim has stated that he was summoned to the house of Ibrahim Khan which is situated on Mohiddin Street, Madeena colony Bhatkal and he says that no any fake notes were found in the said house and he says that no any fake notes were found in the said house and he says that only two passports belong to accused No.1 were found and the police seized them and conducted the mahazar as per Ex.P.3 and then took the signature. In the cross examination he says that he does not know in whose name the house to which they had been belonged and he says hat some woman folk were in the house at that time and Ibrahim was not in the house. He has denied that he was not summoned any where and he is giving false evidence.
14. P.W.4 Mohammad Sadiq has stated that about 2-1/2 years back he was called near the house of accused No.2 and the house was checked and he Crl.A.No.100132/2019 18 also says that they could not find anything in the said house. He says that mahazar as per Ex.P.8 was conducted and his signature has been obtained. This witness has not been cross examined.
15. P.W.5 Raghavendra Devadiga is the panshop owner and he has stated that on 14/1/2012 at about 5-30 p.m he had seen the accused Aftab and he had been to the wine shop which is by the side of his shop and he purchased one Oldmonk quarter bottle and he gave Rs.1000/- and the cashier suspected it and returned the said note to the accused No.1 and thereafter the accused handed over Rs.50/- to the Bar owner and went away. He says that after about 1/2 an hour there was some galata going on near Devi Ground, so he went there and the accused was there and he says that he came to know that there was fake note with the accused and the police have recorded his statement. In the cross examination Crl.A.No.100132/2019 19 he says that there is no panchayat number to his pan shop and he admits that there are many houses by the side of his pan shop and it is a residential locality. He says that he did not informed the police that there were fake notes with the accused. He has denied that he is giving false evidence.
16. P.W.6 Kamalaksh Mahadev Patgar is the Manager in Seabird Tourist Corporation, he clearly says that he does not know the accused who are before the court. He says that on 13/1/2012 at abut 9-15 pm one parcel was sent through his bus from Bangalore and it reached Bhatkal bus stand on the next day and one Ismail had sent the parcel on 14/1/2012 at 7-30 a.m and one Yahya came to take parcel. He says that the accused never came to Seabird office at any time and had not taken any parcel. He says that he did not come to know what was there in the said parcel. He says that at the time Crl.A.No.100132/2019 20 of investigation he came to know from the police that there were fake notes in it. He clearly says that the police have not recorded his statement. He has been treated as hostile and even in the cross examination he has denied that the person appearing in the photo had come to his office and had taken the parcel and he has also denied that one Yahya had informed him to give the said parcel to the Accused Aftab. In the cross examination by the learned counsel for the accused he clearly says that he does not know who is that Yahya and he says that on the basis of the docket number he had given the parcel. He says that he had seeing the accused for the first time before the court.
17. P.W.7 Nagendra Gajanan Bhat is the Kirana shop owner, he says that he knows accused No.1 and about 2 ½ years back in between 2-3 p.m the accused had come to his shop and asked cigarette packets and he gave two cigarette packets and the accused was Crl.A.No.100132/2019 21 required to pay Rs.80/-, but he gave Rs.1000/- note and he says that he returned the said note saying that he has no change and thereafter the accused paid Rs.80/. in cash and took the cigarette, He says that on the next day the police had come to his shop along with the accused and at that time he has identified the accused. He says that he came to know that the accused was in the habit of circulating fake notes. In the cross examination by the learned counsel for the accused he says that he came to know that the accused was in the police custody and he had been to the police station in the morning and at that time he did not inform the police that the accused had come to his shop. He says that he has not studied to distinguish the original and duplicate notes and according to him since he had no change so he had returned Rs.1000/- note back to the accused and he says that he did not give any information to the police Crl.A.No.100132/2019 22 suspecting the accused. He admits that cigarette packets like Mo.77 and 78 are easily available in the market. He has denied that the accused had not come to his shop and he had not purchased any cigarette packets from his shop.
18. P.W.8 Praneet Mennon is the Deputy Manager of RBI, he has stated that on 24/1/2012, five sealed packets were sent to him for examination and he checked them and there were 75 notes in it and they were duplicate notes and he says that slips were verified and 13 characteristics of notes were confirmed and he has identified said 75 notes. IN the cross examination he admits that normal person cannot distinguish original note and fake note and people are not aware of it. He admits that he has not mentioned 13 characteristics of notes in his report. He has denied that he has not examined any notes and he is giving false evidence.
Crl.A.No.100132/201923
19. PW.9 Pramod Vithal Naik HC 703 has stated that on 22/1/2012, his Inspector had given five sealed packets to him and had asked him to hand over them to Mysore Printing Press and accordingly he went there and handed over them and then returned to the police station and has given report. In the cross examination he says that he came to know that there were 75 notes in the said packet from HC Subray.
20. P.W.10 Arun Subraya Naik is the HC 1317 and he has stated that on 23/1/2012 he was asked to go to Seabird office and bring the post and accordingly he went to Seabird office and one Kamalesh Patgar was there and he also obtained information pertaining to parcel received in the name of Yahya in between 13/1/2012 to 14/1/2012 and he says that the Manager informed that accused No.1 who is before the court took away the said courier stating that it belonged to him. He says that the manager gave Crl.A.No.100132/2019 24 invoice copy to him. In the cross examination he admits that there is no name of accused on Ex.P.9 and he has denied that he had never been to Seabird office and he is giving false evidence.
21. P.W.11 Gajanan Ganapati Hegde, is the account clerk and he has stated that accused No.1 was searched in his presence and they found ATM card, passport, American dollar, Cash Rs.1250/ and two mobile handsets and the police seized them and have conducted mahazar as per Ex.P.21 and then took his signature. He has identified the said mobile handsets at M.Os.98 and 99 and also cover. He has also identified mini purse belonging to the accused No.1, ATM card and an amount of Rs.1250/- which were seized from accused No.1. In the cross examination he says that he came to know about Sayyed Ahammad Mulla on the same day and he was not previously knowing him and he says that the Crl.A.No.100132/2019 25 accused was in the custody of police when he went there. He also says that he did not find any contraband articles with the accused. He says that he could not come to know what offence was committed by the accused on that day. He has denied that no any panchanama was conducted in his presence and nothing was seized in his presence and now he is giving false evidence.
22. P.W.12 Subray Govind Naik, has stated that on 14/1/2012 he had been along with PSI in the departmental jeep for patrolling and when they were on the national highway and were patrolling, at that time accused No.1 went to the shop and purchased cigarette packets and handed over Rs.1000/- denomination note and when shop owner told that he was not having change, then he gave original note and there after he went to Raghavendra wine shop and there also he tried to circulate Rs.1000/- fake Crl.A.No.100132/2019 26 currency note. He says that thereafter they suspected the accused and the panchas were secured and the police seized the duplicate notes and they are marked at MO.1 to 75. He says that the mahazar as per Ex.P.1. was conducted in his presence and he has also stated about drawing of sketch. He says that the house of the accused was searched and there were two passports and they were seized and on examination in the house of the accused they did not find any incriminating material. He has identified all the properties. In the cross examination he says that he was in the police station when they received information and according to him at the time of panchanama about 40 to 50 persons had gathered. He admits that on the basis of the information given by the first accused they have arrested the second accused. He has denied that the accused was never Crl.A.No.100132/2019 27 circulating any fake notes and a false complaint has been filed.
23. PW.13 Vinayak Mahadev Naik, has stated that he had accompanied the PSI at the time of patrolling and they found that the accused was trying to circulate the fake notes and he has also stated about seizing of the articles from the accused. In the cross examination he has denied that the accused was not apprehended and no any notices were issued in his presence.
24. P.W.14 Ganesh Bangari Jogalekar is the Sub Inspector and he has stated that on 14/1/2012 when he was incharge of the police station, the PSI Harlapur came to the police station and lodged the written complaint and on the strength of the same he registered the case in Crime No.8/2012 and sent FIR to the court and he has also stated that along with the Crl.A.No.100132/2019 28 complaint accused No.1 was also produced and the complainant also produced 75 fake notes, one arrack bottle, two cigarette packets, one plastic pack, one mobile hand set, two notes of Rs.500 denomination and 15 notes of Rs.100 denomination and he has identified the complaint at Ex.P.2 and also properties at M.O.1 to 97. He has stated that he has seized those articles and obtained permission of the court and he has also recorded the statements of CPC Vinayak, CPC Jayaram, CPC Basavaraj, CPC Jagadish Naik. He says that thereafter he has handed over further investigation of the case to Girish Mundgod. He has identified the accused before the court, in the cross examination he has denied that without verifying the complaint he has registered the false case against the accused and he has stated that the notes were in his possession till they were sent to FSL. He has denied Crl.A.No.100132/2019 29 that he had not recorded the statements of any witnesses
25. P.W.15 B Girish is the Police Inspector, he has stated that he was incharge of Yellapur police station during the absence of regular Pl and he says that he took further investigation of the case from P.W.14 and also recorded the statement of the accused and he also obtained accused No.1 to the police custody and he says that that the accused took him to his house at Bhatkal and there he seized two passports which were in the cupboard of the house of the accused and has conducted the Mahazar as per Ex.P.5. He has identified the said passports at Ex.P.6 and 7. He says that he went to the house of the accused No.2 and there also he has conducted the panchanama, but he says that he did not find any properties in the house of the accused No.2 and has conducted the mahazar at Ex.P.8. He also says that Crl.A.No.100132/2019 30 the accused No.2 was not in the house when he had been to his house. He has also further stated that he obtained permission of the court and intimated the court regarding properties seized. He has stated that since C.W.24 returned from leave, so he handed over further investigation to him. In the cross examination he has denied that he has not recorded the voluntary statement of the accused and has also denied that he had not searched the house of the accused No.1. He has denied that he has not conducted any investigation and he is giving false evidence.
26. P.W.16 Aravind Narayan Kalguchi is the Police Inspector and he has stated that from 2011- 2013 he was working as PSI at Yellapur police station and on 17/1/2012 he took up further investigation of the case from B Girish and he also enquired accused No.1 who was in the police custody and also obtained information regarding the accused No.2 and he says Crl.A.No.100132/2019 31 that he produced accused No.1 before the court since police custody expired. He also says that on21/1/2012 he arrested the accused No.2 near Shanbhag hotel and he searched him in the presence of the panchas and seized an amount of Rs.1250/- and one purse, ATM card from him and also seized American dollar, mobile handsets and he has Identified the said properties. He says that he has produced accused No.2 before the court. He identified the accused before the court. He has also stated that he has recorded the statements of the witnesses and sent fake notes to RBI for examination of the notes. He also says that he deputed Arun Naik CPC for bringing information from the Seabird parcel office and he has also stated that accused No.1 and 2 were involved in similar cases before the District and Sessions Judge at Haveri and he secured the records pertaining to the said case. He says that he obtained report from RBI as Crl.A.No.100132/2019 32 per Ex.P.12 and finally he says that he has filed charge sheet against the accused. In the cross examination he says that he is having some knowledge of the characteristics of the fake notes and he can identify fake note and original note. He has stated that if notes are dipped in water then they will become soft and he says that there will be thread mark in the original notes and denomination number will be mentioned towards right side of the note and he says that some characteristics may be available in MO.1 to 75 which are fake notes. He also says that he did not dipped MO.1 to 75 in the water and he says that he does not know whether RBI authorities have mentioned the aforesaid characteristics in the report or not and he also admits that the general public cannot distinguish between fake notes and original notes. He says that he is not aware if the accused have preferred an appeal against the judgment passed Crl.A.No.100132/2019 33 by the Haveri Court. In the cross examination by the learned counsel for the accused No.2, he says that he came to know that accused No.2 was near Shanbhag hotel and when he tried to arrest accused No.2 he did not try to run on seeing him and he also says that he did not find any fake notes with him. He has denied that accused No.2 was arrested at Pune when he had been for an eye operation of his mother. He has denied that both accused are in no way concerned with the case and a false charge sheet has been filed.
27. Considering the case of the prosecution witnesses would clearly indicate that P.W.1 in the cross-examination admits that he has not got it written in the complaint that the accused had purchased wine in the shop and then also went to panshop and purchased cigarette packets. He states that accused did not try to run away on seeing them. If really accused possessing fake notes as alleged by Crl.A.No.100132/2019 34 the prosecution, the accused would flee from the spot. Saraswati General Stores is on the court road side in Yellapur. He was standing near Devi ground. The shop is about 75-100 meters where P.w.1 was standing and the accused had bought cigarette earlier. He admits that P.Ws.1 and 2 are the permanent panchas of this station. From perusal of the evidence of P.W.1, it is clear that P.W.1 was standing at a distance of 75 to 100 meters and he has not seen that the accused tendered fake notes of Rs.1,000/- denomination and he has not mentioned in the complaint that the accused had purchased wine in the liquor shop and then went to panshop and purchased a cigarette packet. There is an improvement in the evidence of P.W.1. The evidence of P.W.1 is not in consonance with Ex.P2.
28. P.W.2 is the witness to Ex.P1-mahazar. He has been treated as hostile and in the cross- Crl.A.No.100132/2019 35 examination he has denied that the police checked the items that were in the bag. The evidence of P.W.2 clearly discloses that no any mahazar was conducted in his presence by seizing fake notes from the accused.
29. P.W.3 being the witness to search panchanama Ex.P5. Ex.P5 discloses the name of the owner of the house wherein two passports belonging to accused No.1 were found, but in the cross- examination he does not know to whom the house belongs. From reading of deposition of P.W.3, it creates doubt about the presence of this witness at the time of search panchanama.
30. P.W.4 has not stated anything about accused No.1.
31. P.W.5 is the owner of the pan shop. In the course of cross-examination, he say that there is no Crl.A.No.100132/2019 36 panchayat number to this pan shop and he admits that there are many houses by the side of his pan shop and it is a residential locality. He says that he did not informed the police that there were fake notes with the accused. If this witness has suspicion that accused gave fake note, nothing prevented him to inform the police. He kept quite till the police came to record his statement.
32. P.W.6 has stated that police has not recorded his statement under Section 161 of Cr.P.C. He turned hostile. He has not supported the case of the prosecution.
33. P.W.7 is the owner of the kirana shop. In the course of cross-examination, he admits that he cannot distinguish original and duplicate notes. According to him, he had no change, he had returned Rs.1,000/- note back to the accused. He states that Crl.A.No.100132/2019 37 he did not give any information to the police suspecting the accused. He admits that cigarette packets like M.O.77 and 78 are easily available in the market. P.W.7 has returned Rs.1,000/- note to the accused only he had no change, but not returned the said note on the ground that it is duplicate. If at all the accused gave alleged note to P.W.7, he could have informed the police, but he did not informed the police.
34. P.W.8 is the Deputy Manager of RBI. He admits in the cross-examination that normal person cannot distinguish original note and fake note and people are not aware of it. He admits that he has not mentioned 13 characteristics of notes in his report.
35. P.W.10 admits in the cross-examination that name of the accused not found in Ex.P9. Crl.A.No.100132/2019 38
36. P.W.11 is the account clerk and he admits that he did not found any contraband articles with the accused. He says that he could not come to know what offence was committed by the accused on that day. He has not supported the case of the prosecution.
37. P.W.12 admits that he had accompanied the PSI in the departmental Jeep for patrolling. But in the cross-examination he states that he was in the police station when they received information.
38. P.W.13 also accompanied PSI at the time of patrolling.
39. P.W.14 is the Sub-Inspector. He seized the articles and recorded the statements of the CPC Vinayak, CPC Jayaram, CPC Basavaraj, CPC Jagadish Naik and handed over further investigation to P.W.15. Crl.A.No.100132/2019 39
40. P.W.15 is the Police Inspector. He states that he took further investigation and recorded the statement of accused and seized the two passports at Exs.P6 and 7 and conducted mahazar as per Exs.P5 and P8.
41. In the light of the above prosecution witnesses and there being no corroborative evidence and P.Ws.2, 3 and 6 turned hostile and P.W.8 Deputy Manager of RBI clearly admits that normal person cannot distinguish original note and duplicate note and people are not aware of it.
42. For the purpose of reference, Section 489B and 489C of IPC are extracted hereunder:
"489B. 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 Crl.A.No.100132/2019 40 [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.
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 description for a term which may extend to seven years, or with fine, or with both."
43. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489B and 489C 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 489B of I.P.C. So also possessing or even intending to use Crl.A.No.100132/2019 41 any forged or counterfeit currency-notes or bank- notes is not sufficient to make out a case under Section 489C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The Hon'ble Apex Court in the case of Umashanker vs State Of Chhattisgarh reported in AIR 2001 SC 3074 held that no presumption can be drawn that notes found in possession of the accused were counterfeit notes. Mere possession of currency notes with the knowledge that they are counterfeit or fake currency notes is not sufficient to convict the accused under Section 489C of IPC. Prosecution is required to prove that accused were possessing the counterfeit or fake currency notes with an intention to use the same as genuine or it may be genuine. No material is produced on record by Crl.A.No.100132/2019 42 the prosecution to show that accused had requisite mens rea.
44. It is relevant to refer the judgment of the Hon'ble Apex Court rendered in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein at paragraph 163, it is held as under:
"164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820).
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of Crl.A.No.100132/2019 43 the accused is sought to be established by circumstantial evidence."
(emphasis supplied)
45. The Hon'ble Apex Court in the case of Umedbhai Jadavbhai vs. State of Gujarat reported in 1978 SCC (Cri) 108 wherein at paragraph 10 held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence."
(emphasis supplied)
46. The Hon'ble Apex Court in the case of Chandrappa and Others vs. State of Karnataka reported in (2007) 4 SCC 415 wherein at paragraph 44 it is held as under:
"In our view, if in the light of above circumstances, the trial Court felt that the Crl.A.No.100132/2019 44 accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."
(emphasis supplied)
47. It is well establish principles of law laid down by the Hon'ble Apex Court that there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Crl.A.No.100132/2019 45 Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of the justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the accused should be adopted from the conviction of an innocent. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
30. The trial court on considering the evidence of prosecution inclusive of defence theory rendered judgment of acquittal. The finding recorded by the trial court while acquitting the accused is just and proper and based on the evidence of prosecution. Crl.A.No.100132/2019 46 There is no merit in the appeals which calls for interference by this court.
31. Considering the law laid down by the Hon'ble Apex Court in the judgments referred above, we answer point No.1 in the affirmative and proceed to pass the following:
ORDER The appeal preferred by the State under Section 378(1) & (3) of Cr.P.C is dismissed.
The judgment and order of acquittal passed by the Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.44/2012 for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC is confirmed.
Sd/-
JUDGE Sd/-
JUDGE MBS/-