Karnataka High Court
S K Basheer Ahmed S/O Abdul Rasoolsab vs State Of Karnataka By Siddlaghatta Town ... on 4 February, 2013
1 Crl.A 316/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.316 OF 2006
BETWEEN:
1. S.K. Basheer Ahmed,
S/o. Abdul Rasoolsab,
Aged about 32 years,
Silk Merchant,
Mehaboobnagar,
Siddlaghatta Town,
Kolar District.
2. Shahbad,
S/o. Abdull Rasoolsab,
Aged about 36 years,
Silk Merchant,
Geddalahallipura,
Nandiganala, Najara,
Nandagudi Hobli,
Hosakote Taluk,
Bangalore District. ... APPELLANT/S
[By Sri. R. Nataraj, Adv.]
AND:
State of Karnataka by
Siddlaghatta Town Police,
Kolar District. ... RESPONDENT/S
[By Sri. Vijayakumar Majage, HCGP.]
2 Crl.A 316/06
This Crl.A. is filed u/Section 374 Cr.P.C.
against the Judgment dated 27.12.05 passed by the
P.O., & Addl. S.J., FTC-IV, Kolar, in S.C.
No.61/02 - convicting the appellant/accused No.1
for the offence punishable under Sections 489(B)
and 489(C) of IPC and convicting the appellant/
accused No.2 for the offence punishable under
Section 489(C) of IPC and sentencing A-1 to
undergo rigorous imprisonment for seven years and
he shall pay a fine of Rs.50,000/- and in default
of payment of fine he shall undergo imprisonment
for one and half years for an offence punishable
under Section 489(B) of IPC and further sentencing
the A-1 to undergo rigorous imprisonment for 5
years for an offence punishable under Section
489(C) IPC and sentencing the appellant/accused
No.2 to undergo rigorous imprisonment for 5 years
for an offence punishable under Section 489(C) of
IPC. Both the substantive sentences imposed to 1st
accused S.K.Basheer Ahmed shall run concurrently.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellants have challenged their conviction and sentence for the offences punishable under Sections 489 (B) & (C) IPC on a trial held by the Fast Track Court at Kolar.
2. The facts relevant for the purpose of this appeal are as under:
3 Crl.A 316/06
On 20.6.1999 PW1-Chikkanarasappa went to silk market at Sidlaghatta to sell the silk cocoons grown by him in an auction. As he did not get reasonable price, he withdrew from the auction with an intention to sell it to others and when he was at the place where the silk cocoons were stored, he found accused No.1 (appellant No.1) who on enquiry told that he would purchase silk cocoons. It was agreed to sell silk cocoons at Rs.93/- per kg., as the cocoons were weighing 17 kgs. 820 grams, the total price was Rs.1,657-26. The accused No.1 gave a sum of Rs.1600/- i.e. 16 notes of Rs.100/- denominations, the money in excess was paid to the accused No.1 and the Chikkanarasappa returned to his village. On 23.6.1999, he took one note of Rs.100/-
denominations and came to Sidlaghatta where he found PW2 Laxmaiah his relative and both went to photo studio to get the photograph of his daughter. He gave the note of Rs.100/- 4 Crl.A 316/06 denomination to the photographer, but the photographer turned the note around and suspiciously asked for another currency note. It was then found by PW2 that the currency note was fake. Thereafter, both of them returned to their village and found that, from the amount of Rs.1600/- which he had brought from accused No.1, there were seven other counterfeit notes. He approached the first accused and returned seven counterfeit notes to him and told him that these notes are counterfeit notes. Later, he approached the police and submitted his complaint Ex.P1 producing one counterfeit note of Rs.100/- denomination.
After the registration of the complaint in Crime No.43/1999, the FIR was sent to the Magistrate and along with PW9 and PW10, CW-13- PSI and other mahazar witnesses went to the house of accused No.1 and who in the presence of the police and the mahazar witnesses produced 52 counterfeit 5 Crl.A 316/06 notes (MOs.2 to 53) from the almirah and they were seized under the mahazar Ex.P3. They apprehended the first accused who in turn in his voluntary statement said to have given some notes to accused No.3 and accordingly accused No.1 led the police and the witnesses to the house of accused No.2 at Nandiganala village. The 2nd accused has admitted having received 10 counterfeit notes from accused No.1 and he produced the said notes as per Exs.P54 to 56 and they were seized under mahazar Ex.P6. The seized notes were sent to Reserve Bank and a report was obtained. The statement of the witnesses were recorded and on completion of investigation, charge sheet came to be laid against accused Nos.1 and 2. As the case against the 3rd accused was split up, it is not necessary to refer to the facts relating to the 3rd accused.
During the trial, the prosecution examined PWs.1 to 11 and got marked the documents Exs.P1 to P7 and MOs.1 to 63. The statement of the accused 6 Crl.A 316/06 were recorded under Section 313 Cr.P.C. They took the defense of total denial. Anyhow, they got marked Exs.D1 to D5. The trial Court after hearing the counsel for the parties and on appreciation of the material on record held accused No.1 (appellant No.1) guilty for the offences punishable under Sections 489(B) and (C) IPC, whereas, accused No.2 (appellant No.2) has held guilty for the offence under Section 489(C) IPC.
The accused was ordered to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/-, in default to undergo simple imprisonment for one and half years for the offence under Section 489(B) IPC and both the accused were ordered to undergo rigorous imprisonment for five years for the offence under Section 489(C) IPC. Aggrieved by the conviction and sentence, the present appeal has been filed. 7 Crl.A 316/06
3. I have heard the learned counsel for the appellants and also the learned High Court Government Pleader.
4. The point that arises for my consideration is:
"Whether the appellants have made out any grounds to warrant interference in their conviction and sentence for the offence under Section 489(B) and (C) IPC?"
5. It is the submission of the learned counsel for the appellant that, so far as the second accused is concerned, there is no evidence at all worth acceptance to prove the production of counterfeit notes with him. Therefore, he contends that the conviction and sentence ordered by the trial Court is erroneous and illegal. So also, it is the contention that there are material discrepancies in the evidence of PW1 and PW2 and the prosecution has not examined the proper person 8 Crl.A 316/06 to establish that the seized notes were counterfeit notes and therefore he contends that the conviction and sentence as against accused No.1 is illegal.
On the other hand, the learned High Court Government Pleader supporting the judgment and order of the trial Court contends that the conviction is based on ample material on record and the appellants have not made out any grounds to warrant interference.
6. Learned counsel for the appellants has taken this Court through the evidence of the material witnesses. During the investigation, though the seizure mahazars-Exs.P3 to 6 have been held, P.Ws.3 to 7 who are the attesting witnesses for the mahazars have not supported the case of the prosecution. It is well-established principle that if the attesting witnesses have not supported the case of the prosecution and the evidence of 9 Crl.A 316/06 the Police Officer is convincing and acceptable, then the Court can rely upon such evidence and hold that the seizure has been proved.
7. P.W.1-Chikkanarasappa is a farmer and had grown silk cocoons. On the date of the incident, he went to Sidlaghatta Market to sell the silk cocoons that he had grown and as he did not get a good price, dropped his idea of selling the silk cocoons in the auction and while he returning from that place, accused No.1 approached him and after conversation between them, P.W.1 agreed to sell the silk cocoons for a sum of Rs.1,641-00. Accused No.1 gave a sum of Rs.1,641-00 i.e., sixteen notes of Rs.100-00 denomination and Rs.41-00. After receipt of the same, P.W.1 came to his village. Thereafter, P.W.1 went to Sidlaghatta to get a photograph of his daughter along with P.W.2-N.Lakshmaiah. In the photo studio he gave one note of Rs.100-00 denomination to photographer-P.W.3-Ramesh. P.W.3 found it to be 10 Crl.A 316/06 a counterfeit note and therefore returned the said note to P.W.1. P.W.1 after returned to the house found that there were 7 other counterfeit notes with the other notes. Therefore, he approached the Police and filed a complaint-Ex.P1.
8. P.W.1 has supported the version of the prosecution and reiterates the contents of the complaint-Ex.P1. In the complaint, P.W.1 states that he came to know that the other 7 notes were counterfeit notes at the time when he was in the photo studio. But, in the complaint, it is mentioned that after he returned to the house he verified the notes and found 7 other notes were counterfeit notes. There are minor discrepancies in the evidence of P.W.1. After the complaint was filed, P.W.9-Head Constable and P.W.10-PSI state in their evidence that P.W.1-Chikkanarasappa accompanied by them to the house of accused No.1- S.K.Basheer Ahamed. But, P.W.1 states in his evidence that he did not go to the house of 11 Crl.A 316/06 accused No.1 after lodging the complaint and therefore, to this extent, there is another discrepancy. P.W.1 has turned partly hostile to the case of the prosecution and when it was suggested to him he did not agree for the same. But, so far as the two discrepancies referred to supra, I do not think that they are material and minor discrepancies are natural in a case where the evidence is recorded 5 years after the date of the incident. The evidence of P.W.1 to the extent that he received 10 notes of Rs.100-00 denomination from accused No.1 after selling silk cocoons and finding out one counterfeit note at the time when he went to the photo studio and 7 other notes after returning from the photo studio is consistent and cogent.
9. Even P.W.2 in whose evidence there are contradictions of Exs.D1 to 5, he is definite to the extent that one note of Rs.100-00 denomination was given to the photographer in the photo studio 12 Crl.A 316/06 and it was found to be a counterfeit note. The evidence of P.W.2 to a certain extent supports the version of P.W.1 as well. These two persons who are closely related to each other do not have any mala fides against the accused. There were no such allegations against them. Therefore, the evidence of these witnesses is consistent, cogent and trustworthy. I do not think any reason to discard their evidence.
10. After the complaint was lodged by P.W.1- Chikkanarasappa, the Police went to the residence of accused No.1 along with the mahazar witnesses and P.Ws.9 and 10 who were the Police Officials state in their evidence having gone to the house of accused No.1 and in turn accused No.1 having produced 52 counterfeit notes from his almirah. Though the mahazar witnesses have not supported the case of the prosecution, rather it is difficult for the Police Officials to plant these 52 counterfeit notes recovered from accused No.1 13 Crl.A 316/06 and therefore, there is no reason to disbelieve the evidence of P.Ws.9 and 10 so far as recovery of notes at M.Os.2 to 53 at the time when the mahazar was drawn as per Ex.P3.
11. Upon the arrest of accused No.1, he was interrogated and it is he who told that he has given few counterfeit notes to accused No.2 and accordingly the Police and the mahazar witnesses have gone to the house of accused No.2, who admits having received counterfeit notes from accused No.1 and led the Police to a place adjoining his house and he produced 10 notes of Rs.100-00 denominations and the said notes were seized under mahazar Ex.P6. Though the mahazar witnesses do not support this seizure, the evidence of the Police Officer regarding the seizure of these notes from accused No.2 is definite and there is no reason to discard his evidence.
14 Crl.A 316/06
12. From the material placed and referred to supra, the fact that the police recovered as many as 52 counterfeit notes of Rs.100-00 denomination from accused No.1 and 10 counterfeit notes of Rs.100-00 denomination from accused No.2 were accepted by the trial Court and there is no reason for this Court as well to reject the finding and to come to a different conclusion.
13. Learned counsel would contend that the evidence of P.W.8 is insufficient to prove that the M.Os.2 to 53 were seized from accused No.1 and M.Os.54 to 63 from accused No.2 are counterfeit notes. He further contends that the evidence of P.W.8 does not disclose the variations to prove the seized notes as counterfeit notes. Ex.P7 is the certificate issued by P.W.8 and as could be seen from Ex.P7, on the back side of the letter addressed to the RBI Director to examine the notes and to issue the certificate, P.W.8 has certified that the above mentioned 63 pieces of 15 Crl.A 316/06 Rs.100-00 denominations are forged. Accordingly, the notes are branded as forged notes and returned to Sri. N.Venkataramanappa, H.C. 127, Sidlaghatta Town Police Station. Except issuing such certificate-Ex.P7, P.W.8 has not stated the reasons and the grounds on which he states that these notes are counterfeit notes. Therefore, the evidence of P.W.8 is not helpful to conclude that these notes are counterfeit notes. But, anyhow, as could be seen from Exs.P3 to 6-mahazars, under which these counterfeit notes M.Os.2 to 63 were seized, Ex.P3 reveals that the 11 notes bearing No.8BM 161873, 3 notes bearing No.2CR 494149, 16 notes bearing No.6BF 068858 and 22 notes bearing No.OBR 492349 of Rs.100-00 denominations bearing the same serial numbers. Even as could be seen from Ex.P6, the notes which were found in possession of accused No.2 were of the same serial number. So looking from these notes, it is possible to make out that these notes were 16 Crl.A 316/06 counterfeit notes. When the mahazar which has been amply proved from the evidence of P.Ws.9 and 10 reveals that these notes are in different groups and were of the same serial numbers, I do not think that there is no necessity to have an experts opinion to prove the notes are counterfeit notes.
14. The fact that towards price of the silk cocoons, accused No.1, gave Rs.1,600-00 i.e., 16 notes of Rs.100-00 denomination in which 8 notes were found to be counterfeit notes. Furthermore, at the instance of accused No.1, accused No.2 produced 10 notes of Rs.100-00 denomination with the same serial number and therefore, it would also establish that both accused Nos.1 and 2 were circulating the counterfeit notes. This much of the evidence available on record is sufficient to hold that accused No.1 was circulating the counterfeit notes and therefore, he is responsible for the offence punishable under Section 489-B 17 Crl.A 316/06 IPC. So also he was found in possession of 52 counterfeit notes i.e., M.Os.2 to 53 and hence Section 489-C is also attracted.
15. From the possession of accused No.2, 10 counterfeit notes of Rs.100-00 denominations were found and these counterfeit notes were recovered at the instance of accused No.2 and it is accused No.1, who led the police to the residence of accused No.2 and accused No.2 was aware of the place where these 10 counterfeit notes were kept. Accordingly, he went to the place near the pit and removed a plastic paper containing 10 counterfeit notes from the lantana bush and they were seized under mahazar-Ex.P6. This evidence would clearly indicate that accused No.2 was in possession of the counterfeit notes. But, there is no evidence on record to establish that accused No.2 was circulating the counterfeit notes knowingly that they were not genuine. So far as the knowledge of the accused that these notes were counterfeit 18 Crl.A 316/06 notes, it is clear from Exs.P3 and 6 that the notes were different groups of notes with same serial number. In such circumstances, it could be presumed that the accused would know that these notes are counterfeit notes as all notes were in the same serial number. That apart, the evidence of P.W.1 that he knows that 7 other notes were counterfeit notes after he was made known by P.W.2 that he had received 8 counterfeit notes as the part of the price of silk cocoons. Furthermore, accused No.2 instead of keeping counterfeit notes in the house had kept them near a pit and that itself indicates the mens rea. Furthermore, under the provisions of Section 106 of the Evidence Act, when a fact is within the knowledge of the accused, the burden of proving that fact is upon him. When the accused were questioned under Section 313 Cr.P.C., at least they have to say that they were in possession of these notes as genuine notes. But, they do not state any thing 19 Crl.A 316/06 and even the conduct in keeping the notes near a tank pit instead of keeping it in their house will clearly establishes that the accused knew that these notes were counterfeit notes. Therefore, the prosecution is successful even in establishing the fact that the accused were aware that the notes were counterfeit notes.
16. So far as the sentence is concerned, it is the submission of learned counsel that the accused are married and they have children and in case, if a sentence for imprisonment for a long period is awarded, their family members will be put to injustice. So far as the offence under Section 489-C IPC is concerned, it is only possession of the counterfeit notes and therefore, I think the interest of justice will be met in case, if the sentence for the said offence is confined to the period for which they were in custody in addition to fine. So far as the offence under Section 489-B is concerned, it is a 20 Crl.A 316/06 serious offence and particularly accused No.1 was found in possession of 52 counterfeit notes and therefore, a reasonable sentence has to be awarded taking into consideration that the offence affects the economy of the nation.
In the result, the appeal is allowed in part, affirming the conviction of the appellants for the charge under Sections 489-B and C IPC. The sentences are modified. Accused No.1 [appellant No.1] is ordered to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000-00 in default to undergo simple imprisonment for 6 months for the offence punishable under Section 489-B IPC. So far as the sentences against both the appellants for the offence punishable under Section 489-C is concerned, the sentence of imprisonment is confined to the period of 8 [eight] days already in custody during the investigation and further they are ordered to pay a fine of Rs.50,000-00 each, in default to undergo 21 Crl.A 316/06 simple imprisonment for one month. Sentences shall run concurrently. They are entitled to set off under Section 428 Cr.P.C.
The trial Court is directed to secure the presence of the appellants for compliance of the order.
Sd/-
JUDGE.
AP/Ksm*