Karnataka High Court
Sundarvelu Kalay Nadar vs The State Of Karnataka on 5 January, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.100268/2015
BETWEEN
SUNDARVELU KALAY NADAR
R/O:SHIVAKASI TAMIL NADU
... APPELLANT
(BY SRI. VITTHAL S. TELI, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH CAMP POLICE STATION, BELAGAVI
REP BY ITS ADDL STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING THAT THE JUDGMENT AND
ORDER ON SENTENCE DATED 19.08.2015 IN S.C.
NO.166/1996 PASSED BY THE X ADDL. SESSION JUDGE,
BELAGAVI KINDLY BE SET ASIDE AND PLEASED TO
ALLOW THE APPEAL AND THEREBY ACQUITTED THE
APPELLANT/ACCUSED NO.1 FOR OFFENCE UNDER
SECTION 489-B AND 120-IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment of conviction dated 19.08.2015 passed by the X Additional Sessions Judge, Belagavi in Sessions Case No.166/1996, wherein the appellant, who was arraigned as accused No.1 is convicted for the offences punishable under Sections 489-B and 120-B of the Indian Penal Code (IPC for short). By the same order, the appellant is acquitted of the offences punishable under Sections 489-A, 489-C and 120-B of IPC.
2. The case of the prosecution is that on 29.03.1995, P.W.1 - Rachappa Veerabhadrappa Sindagi, the Assistant General Manager of SBI Main Branch, Belagavi, found a counterfeit currency note of Rs.100/- denomination in a bundle of Rs.50,00,000/- notes. On ascertaining that it was a counterfeit note, P.W.1 lodged a complaint before the Camp Police Station, Belagavi. Based on the said complaint, investigation was taken up. In the course of the investigation, the Investigating Officer having learnt that :3: a printing machine along with counterfeit notes were seized from the possession of accused Nos.1 and 2 in Crime No.50/1994 of Laxmipur Police Station, Kolhapur, secured the documents relating to the said seizure. The counterfeit currency note which was found in the bundle of Rs.50,00,000/- was subjected to forensic analysis. On ascertaining that it was a counterfeit currency note, a charge sheet came to be laid against 14 accused persons under Sections 489-A, 489-B, 489-C, 489-D and 489-E read with Section 120- B of IPC.
3. Accused Nos.2, 4 and 11 died during the investigation and accused Nos.3, 5, 6, 7 and 8 were not traced. A split up charge sheet was filed against them. Accused Nos.1, 9, 10, 12 and 13 faced trial. Based on the material produced by the Investigating Agency the Trial Court framed distinct and separate charges against accused Nos.1, 9, 10, 12 and 13 under Sections 489-A, 489-B and 489-C read with Section 120-B of IPC.
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4. The accused denied the charges. In order to prove its case, the prosecution examined 31 witnesses and produced in evidence 24 documents, as Exs.P-1 to P-24 and the material objects at M.Os.1 to 36. The accused took up the defence of total denial during their examination under Section 313 of the Code of Criminal Procedure.
5. On considering the material produced by the prosecution, by the impugned judgment, the Trial Court acquitted accused Nos.9, 10 and 13 of all the offences. Whereas, the appellant who was accused No.1 therein was convicted for the offences punishable under Sections 489-B and 120-B of IPC. The case against accused No.12 was split up.
6. Feeling aggrieved by the impugned judgment, the appellant has preferred this appeal questioning the legality and correctness of the conviction recorded by the Court below.
7. I have heard Shri Vitthal S. Teli, learned counsel appearing for the appellant and Shri Raja :5: Raghavendra Naik, learned High Court Government Pleader and have examined the records.
8. At the outset, it needs to be mentioned that though the appellant herein was charged for the offences punishable under Sections 489-A, 489-B, 489- C read with Section 120-B of IPC, the State has not preferred any appeal against the acquittal of the appellant of the charges under Sections 489-A and 489- C of IPC. Hence, the limited question that arises for consideration in this appeal is whether the conviction of the appellant for the offences punishable under Sections 489-B and 120-B of IPC is sustainable on the facts and circumstances of the case?
Section 489-B of IPC reads as under:
"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 :6: believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9. In order to make out the said offence under Section 489-B, the prosecution is essentially required to establish that the appellant herein was involved in the sale or buying or receiving or otherwise using as genuine any forged or counterfeit notes or otherwise trafficking therein knowing or having reason to believe the same to be forged or counterfeit.
10. In the instant case, the charge framed against the accused reads as follows:
"That you accused A-1, A-9, A-10, A-12 and A-13 along with absconding and deceased accused A-2, A-4, A-11 and A-14 used to said counterfeit note as genuine note knowing or having reason to believe that :7: same is counterfeit currency, and thereby committed an offence punishable under Section 489-B read with Section 120-B of IPC and within the cognizance of this Court."
11. The reading of the above charge indicate that the substance of the accusation against the appellant was that he used the said counterfeit currency note as genuine knowing or having reason to believe the same as counterfeit currency note. According to the prosecution, the currency note M.O.1 was found in a bundle of Rs.50,00,000/- currency notes which was deposited by DCC Bank in SBI Main Branch, Belagavi. The said counterfeit currency note was seized and the same has been subjected to forensic analysis and it is proved by the report Ex.P-15 issued by the General Manager, Bank Note Press, Dewas, Madhya Pradesh, that it was a counterfeit currency note. The said note is duly identified by P.W.24 - the Investigating Officer, who seized the said M.O.1 had sent the same for forensic analysis.
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12. Though the learned counsel for the appellant has contended that the report - Ex.P-15 is not proved in accordance with law, yet in view of the specific provision contained in Section 293 of Cr.P.C., no objection having been raised at the time of marking the said report and no contention having been urged requiring proof of the said document, the objection in this regard is not tenable and consequently it requires to be held that the report Ex.P-24 is duly proved. Resultantly, the prosecution has established the fact that M.O.1 found in the bundle of Rs.50,00,000/- currency notes is a counterfeit note. But the real question that is germane for consideration is whether the said counterfeit currency note was in fact inserted in the said bundle by the appellant with intent to use the same as genuine and whether the appellant was anyway instrumental in depositing the said note with DCC Bank?
13. On perusal of the entire material on record, I do not find any evidence to show that Rs.50,00,000/- containing the counterfeit currency note - M.O.1 was :9: deposited by the appellant - accused No.1 or that the same was deposited at his instance in DCC Bank in any transaction. There is absolutely no evidence in proof of this circumstance. In the absence of any such evidence, the accused cannot be connected to the said counterfeit note which is said to have been detected by P.W.1 in the usual course of the Bank transaction.
14. The Trial Court has held the accused guilty on the specious reasoning that a machine used for printing the counterfeit currency notes was seized at the instance of accused No.1 in Crime No.50/1994 of Laxmipur Police Station. The Trial Court has proceeded on the basis that a case was registered against the accused in Sessions Case No.21/1999 on the file of the II Additional Sessions Judge, Kolhapur for the offences punishable under Sections 489-A, 489-B, 489-C, 489-D and 489-E and 120-B read with Section 34 of IPC, wherein the appellant has been prosecuted for the offence of printing currency notes and based on this material, the Trial Court has jumped to the conclusion : 10 : that the counterfeit currency note - M.O.1 was also printed in the said machine - M.O.2 and therefore, the appellant namely accused No.1 is guilty of the offence punishable under Section 489-B of IPC.
15. The reasoning assigned by the Trial Court, in my view, is fallacious and baseless. The seizure of the printing machine (M.O.2) and other 98 counterfeit currency notes from the possession or at the instance of accused No.1, do not by itself lead to the inference that M.O.1 was printed by accused No.1 from the said machine and the same was used by him with the knowledge that it was a counterfeit currency note. There is no evidence whatsoever to show that M.O.1 was printed from the machine (M.O.2) seized in Crime No.50/94 of Laxmipur Police Station. The report Ex.P- 24 referred above is confined only with regard to fact that M.O.1 is a counterfeit note and nothing else.
Barring the above evidence, I do not find any direct or circumstantial evidence to indict the accused : 11 : for the offence punishable under Section 489-B of IPC or Section 120-B of IPC.
16. P.W.1 the Manager of SBI Bank has merely stated about the detection of a counterfeit note, namely M.O.1 and has deposed about the factum of lodging the complaint. P.W.2 is the panch witness to the seizure of M.O.1, but he has turned hostile to the prosecution. P.W.3 was the cashier at the Head Post Office at the relevant time, who has deposed about the fact that DCC Bank deposited Rs.50,00,000/- for issuance of Kissan Vikas Patra. P.W.4 the cashier at SBI Bank has also deposed in line with P.W.1. P.W.5 was another employee of Saaraswat Cooperative Bank, who has stated that on 28.03.1995, Rs.10,60,000/- and on 29.03.1995, Rs.6,00,000/- were deposited in their bank and he had prepared bundles of the said notes. Further he has stated that on 29.03.1995, Rs.50,00,000/- was deposited by DCC Bank at Head Post Office, Belagavi and purchased Kissan Vikas Patra. P.W.6 the Deputy Post Master has stated about the issuance of Kissan : 12 : Vikas Patra on receipt of Rs.50,00,000/-. P.W.7 is the Manager of DCC Bank has stated that he deposited Rs.10,60,000/- in their bank and the said amount was sent to the Head Post Office, Belagavi. P.W.8 was the cashier at DCC Bank. He has deposed that he deposited Rs.10,60,000/- in their bank and out of the said amount and other amounts, a Kissan Vikas Patra of Rs.50,00,000/- was purchased. P.W.14 has stated that he acted as a panch for the seizure of 49 currency notes under Ex.P-10. P.W.16 has stated that the house No.247 owned by him at Hindawadi, Belagavi was given to the appellant and the appellant was paying rent of Rs.1,100/- per month in respect of the said room and he came to know that the appellant was printing counterfeit currency notes in the said room and they were seized by the Police. P.W.17 has deposed that the appellant let out the shed to the deceased accused No.2 for rent. P.W.18 has turned hostile to the prosecution. P.W.19 is a panch witness to the seizure panchanama of Ex.P-9. P.W.23 is a panch witness to the recovery of 98 : 13 : currency notes of denomination of Rs.100/- recovered from accused No.2. P.W.24 is the Investigating Officer. P.W.25 is the subsequent Investigating Officer. P.W.26 and 27 are the Police Officials who conducted the part of the investigation. P.W.28 is the panch witness to Exs.P-7, P-16, P-17 and P-23, but he has turned hostile to the prosecution. P.W.29 is another panch witness to Ex.P-18. This witness also has failed to support the prosecution. Likewise, P.W.30 has been examined to speak to the fact that in the year 1994, accused No.10 had given him Rs.100/- currency note, but this witness has failed to support the prosecution and has been treated hostile. P.W.31 is the Investigating Officer who conducted the part of the investigation.
17. Thus, it could be seen that none of the above witnesses have stated anything about the involvement of the appellant either in trafficking or using the currency note - M.O.1. Under the said circumstances, there was absolutely no basis for the Trial Court to hold the appellant guilty of the offence under Sections 489-B : 14 : and 120-B of IPC. The prosecution has utterly failed to prove that the appellant was trafficking or using the currency note - M.O.1 as genuine or that he deposited the said currency note in any of the Banks. In the absence of any such evidence, the conviction of the accused is wholly illegal and perverse. The findings recorded by the Trial Court are without any legal evidence. The said findings cannot be allowed to stand. Accordingly, the findings of the Court below are set aside. The accused/appellant No.1 is acquitted of the offences punishable under Sections 489-B and 120-B of IPC.
It is stated that the accused has already been released. Hence no further order is necessary for the release of the appellant.
ORDER Criminal Appeal No.100268/2015 is allowed. The impugned judgment of conviction and order of sentence dated 19.08.2015 in S.C. No.166/1996 is set aside. The appellant/accused No.1 - Sri.Sundarvelu kalay Nadar is : 15 : acquitted of the offences punishable under Sections 489-B and 120-B of IPC.
Sd/-
JUDGE Rsh