Kerala High Court
Karattil Kunhimuhammed vs State Of Kerala on 4 February, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935
CRL.A.No. 1512 of 2004 (B)
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SC 450/2001 of ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK NO.I
(ADHOC), MANJERI
CP 88/2000 of JUDICIAL FIRST CLASS MAGISTRATE, MANJERI
APPELLANT(S)/ACCUSED:
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KARATTIL KUNHIMUHAMMED,
S/O.HUSSAIN, ARINCHEERIMAL, AREACODE AMSOM
KOZHAKKOTTUR, MALAPPURAM.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.PRASUN.S
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SHRI N.SURESH
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 04-02-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.1512 of 2004
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Dated this the 4th day of February, 2014.
JUDGMENT
Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. 1st accused in S.C.No.450 of 2001 on the file of Additional District and Sessions Court, Fast Track-I (Adhoc), Manjeri, who is convicted for offences punishable under Section 489B, 489C and 489D of the Indian Penal Code (for short, "IPC") has come up in appeal challenging the conviction and sentence.
3. Prosecution case, in short, is as follows:
PW1 on 22.09.1995 received an information that the appellant was dealing with counterfeit currency. The information was received at about 7 p.m. Since he did not get sufficient time to get an order from the concerned Magistrate for conducting a search in the house of the appellant, he prepared Ext.P3 search memo. Thereafter, he proceeded to the house of the appellant with police party. Ext.P1 search list shows that 95 fake Saudi Arabian riyals, forged currency of `50/-, 90 in number and certain pieces of paper having the size of a currency note of `50/- were recovered. Later the investigation was handed over to CBCID. After Crl.Appeal No.1512/2004 2 closing the investigation, a charge was filed. Finding that this is a case exclusively triable by a Court of Sessions, learned Magistrate committed the case and it was made over to the trial court.
4. PWs 1 to 8 were examined and Exts.P1 to P11 were marked. Ext.D1 is the document marked on the side of the defence. MOs 1 to 7 are the material objects.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. Learned counsel for the appellant submitted that the court below went wrong in appreciating the evidence which resulted in a legally unsustainable conviction. My attention was drawn to the testimony of PW1, the detecting officer. He deposed that on receiving the information on 22.09.1995, he proceeded to the place at about 7.45 p.m. It is his allegation that fake currency notes were recovered from an almirah in the house wherein the appellant was seen. It is also deposed by PW1 that two witnesses were present at the time of search and seizure. After properly sealing the contraband article and preparing a search list, the formalities have been completed. When cross examined, PW1 stated that he received a secret information that the appellant was dealing with counterfeit currency. PW1 admitted that no recovery of counterfeit currency was effected from the body of the appellant. According to his Crl.Appeal No.1512/2004 3 evidence, appellant is the owner of the house. But his assertion is not based on any evidence collected during the course of investigation. He would further admit in cross examination that, it was a dwelling house wherein lot of people were residing at the material time. Appellant has a specific case that he cannot be mulcted with the criminal liability in the absence of any material to show that he possessed the house from which the alleged recovery was effected. PW2 was a Head Constable who accompanied PW1 at the time of search and seizure. According to the version of PW2 in examination in chief, at the time when they reached at the house, there were inmates in the house and others were also present in the house. PW2 deposed that the independent witnesses signed on Ext.P1 search list came along with the Police party to the place of occurrence. But PW3, an independent witness, would depose that he was taken from his house by the Police Officers to the place of search. In regard to the time of search also, there is some discrepancy as pointed out by the learned counsel for the appellant. Prosecution case, as stated by PWs 1 and 2, is that the search was after 7.45 p.m. whereas PW3, the independent witness testified that he was asked by the Police Officers to go to the house of the appellant at about 6.30 p.m.
7. PW3 was cited to prove the search and seizure as an independent witness. He testified in chief examination that in the house, Crl.Appeal No.1512/2004 4 wife and children of the appellant were residing. According to him, this is an isolated house. He signed on Ext.P1 from the house of the appellant. But, when cross examined, he would depose that he did not witness any search and seizure. So, it is evident that the prime purpose for which he was summoned could not establish through this witness. According to his evidence, he did not see the search and seizure nor was he aware as to what were the things recovered from the house of the appellant. He also stated that he was forcefully made to sign on Ext.P1. It is interesting to note that the prosecution has no case that this witness prevaricated from his former statement and did not choose to cross-examine him with the permission of the court.
8. PWs 4 to 7 are the investigating officers. It is revealed from their evidence that they have not taken any step to find out whether the house from which the alleged recovery of fake currency is effected belonged to the appellant.
9. Learned counsel for the appellant contended that in the absence of any link to connect the appellant with the house from which the alleged recovery was effected, he cannot be convicted for the alleged offences.
10. Learned Public Prosecutor submitted that the information received by PW1 was specific that the appellant, identified by name, was Crl.Appeal No.1512/2004 5 dealing with fake currency. On the basis of that information, the detecting officer and party went to the place and made the recovery. I am unable to accept the contention that merely on the secret information regarding fake currency the appellant was arrested from the place where the currency was found to be secreted, entire blame cannot be put on the appellant without the prosecution establishing complicity of the appellant.
11. Offences alleged against the appellant are that he was using forged or counterfeit currency notes as genuine. Further he was in possession of forged or counterfeit currency notes and he was possessing instruments or materials for forging or counterfeiting currency notes. Section 489B IPC deals with using of forged or counterfeit currency notes as genuine. We are not concerned with the question of bank notes in this case. We are only concerned with the counterfeit currency notes, both Indian rupee and Saudi riyals. One of the ingredients to be established for attracting an offence under Section 489B IPC is that the note in question should be a currency note and it was forged or counterfeited. Further, it has to be established that the accused sold the same or bought the same or received the same from any person. Finally, it must be established that the accused knew or had reason to believe that it to be forged or counterfeited.
12. Section 489C IPC deals with possession of forged or Crl.Appeal No.1512/2004 6 counterfeit currency notes. It is indubitable that the expression `currency notes' includes currency notes of any country. In other words, Section 489C IPC is not restricted to Indian currency notes alone.
13. To constitute an offence under Section 489C IPC, the following aspects will have to be established:
i. The note in question is a currency note
ii. Such note was forged or counterfeited
iii. The accused was in possession of currency notes iv. The accused intended to use the same as genuine v. Accused knew or had reason to believe that the note to be forged.
14. In order to attract an offence under Section 489D IPC, it must be established that the thing recovered from the possession of the accused was a machinery, instrument or material necessary for forging or counterfeiting a currency note. Accused made or performed any part of the process of making, buying, selling or disposing of any machinery or instrument or material. The accused knew or had reason to believe that the above mentioned things were intended to be used for forging or counterfeiting any currency note.
15. Learned counsel for the appellant contended that the articles recovered from the house on a casual glance would show that it cannot be Crl.Appeal No.1512/2004 7 transacted as currency notes. Ext.P7 is the report of examination of forged bank notes. Apparently the expert has considered Indian currency only as per Ext.P7. It is seen that notes of denomination of `50/- in 90 numbers were sent for examination. Ext.P7 shows that all the notes were in a burnt condition. The report shows that the notes were poor and unsharp. The report further shows that the currency notes did not match the colour shades of genuine notes. Ext.P7 was marked by invoking Section 292 Cr.P.C.
16. Ext.P11 is the report submitted by the Manager, Foreign Exchange in Thomas Cook India Limited, Kochi. PW8 is the witness examined to prove Ext.P11. In cross examination, it is come out in evidence that his name will not be seen on Ext.P11. Learned counsel for the appellant argued that there is no material to find that he is the person who signed on Ext.P11. Ext.P11 shows that the Saudi Riyals sent for comparison appeared to be counterfeit currency. It is also mentioned in Ext.P11 that further information on the genuineness of the notes could be gathered from the Saudi Arabian Embassy. Admittedly no steps were taken by the prosecution to get information from the Saudi Arabian Embassy. The competence of the person who issued the opinion, whether it was PW8 or any other person, etc. are not also established, contended learned counsel for the appellant.
Crl.Appeal No.1512/2004 8
17. All these aspects will become relevant only when it is established that the appellant was in possession of the house at the time of alleged recovery of contraband. According to the learned counsel for the appellant, in the absence of any evidence to prove that the appellant was either the owner or person in possession of the house at the material time, the prosecution is totally unsustainable. PW6 in re-examination stated that he questioned the Junior Superintendent of Areacode Grama Panchayat and found that the house wherefrom the counterfeit currency notes were recovered belonged to the wife of the appellant. But, no document was produced to substantiate this contention. Not only that the Junior Superintendent of the Grama Panchayat was not examined. In this context, learned counsel for the appellant relied on an unreported decision of a learned Single Judge of this Court in Crl.Appeal No.56 of 2009 wherein the possession of contraband under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was considered. Following the decision in Radhakrishnan v. State of Kerala (2009 (2) KLT S.N.56 (Case No.61)), the learned Single Judge found that in the absence of materials to show that the appellant in that case resided in the house from which the alleged recovery of contraband was effected, the criminal liability cannot be put on him. It is argued that the same principle can be applied in this case also.
Crl.Appeal No.1512/2004 9
18. Merely for the reason that the accused was found in the house at the time when the recovery of counterfeit currency was effected from the house, I am of the view that the criminal liability cannot be mulcted on him. Learned Additional Sessions Judge has not stated any reason for finding that the appellant was in possession of the house at the material time. If that is not established, the rest of the case will fall to ground. I, therefore, find that the conviction of the appellant should fail for the aforesaid reasons.
In the result, the appeal is allowed. Conviction of the appellant under Sections 489B, 489C and 489D IPC is hereby quashed. He shall be set free forthwith, if not wanted in any other case. Bail bond shall stand cancelled. If the appellant had paid any amount as condition for suspending the sentence, it shall be released to to him.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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