Kerala High Court
Kalipilakkal Varghese vs State Of Kerala on 16 March, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
CRL.A.No.1407 OF 2006
AGAINST THE JUDGMENT IN SC 182/2004 OF ADDITIONAL DISTRICT &
SESSSIONS COURT (ADHOC-1), MANJERI
CP 11/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PERINTHALMANNA
APPELLANTS/ACCUSED:
1 KALIPILAKKAL VARGHESE
S/O.VARKEY, EDAPATTA DESOM,PATHRIKODE.
2 CHERUKAPALLY UMMAR,
S/O.MOOSA,UPPUKULAM, EDATHANATTUKARA.
BY ADVS.SRI.P.SAMSUDIN
SRI.M.ANUROOP
SMT.S.K.SREELAKSHMY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
PERINTHALMANNA POLICE STATION.
BY ADV.SMT.MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.03.2020,
THE COURT ON 16.03.2020 DAY DELIVERED THE FOLLOWING:
Crl.A.No.1407/2006
-:2:-
"CR"
Dated this the 16th day of March,2020
J U D G M E N T
Appellants convicted and sentenced for offence punishable under Section 489-C read with Section 34 of the Indian Penal Code,1908(for short, 'I.P.C.') to undergo Rigorous Imprisonment for five years are accused 1 and 2 in S.C. No.182/2004 on the files of Additional Sessions Court (Adhoc-1),Manjeri, charge-sheeted by PW7, Detecting Officer, CBCID, Kozhikode before Judicial First Class Magistrate, Perinthalmanna.
2. The allegation is that, on 06.11.1992 at 2.15 pm, accused 1 and 2 respectively kept in their possession 28 and 20 counterfeit currency notes of denomination of Rs.100/- in Room No.57 of Taj Tourist Home, Peinthalmanna knowing them to be counterfeit and with the intention to use the notes as genuine.
3. The prosecution case is that PW4, Circle Inspector of Police, Perinthalmanna, on getting secret information that counterfeit notes were kept in Room No.57, came to the Tourist Home along with his subordinate officials, who included PW2, Sub Crl.A.No.1407/2006 -:3:- Inspector of Police, on 06.11.1992 at 2.15 pm and on being led by PW5, the Manager of the Tourist Home, the police party reached Room No.57 and found appellants to be in occupation of the room. PW4 conducted body search of both appellants in the presence of PW5 and also PW1, who is a financier running 'MGM Auto Finance' in Room No.53 of the same Tourist Home. It was found from the loin of first accused, who was wearing a dhoti that he kept 28 counterfeit currency notes of Rs.100/-denomination wrapped in a newspaper. The 2 nd appellant kept 20 such notes in the pocket of his underwear wrapped in another newspaper. All the 48 notes were seized and appellants were arrested immediately at the spot. Evidencing seizure and arrest, Exts.P1 and P2 seizure mahazars were prepared by PW4 and MO1 series notes(48 Nos.) and MOs2 & 3 newspaper sheets were produced the next day before the Committal Court along with the appellants.
4. The Detecting Officer, PW4 himself registered Ext.P8, First Information Report(FIR) suo motu and conducted search of the residential houses of the appellants after forwarding Ext.P9 search memo to Crl.A.No.1407/2006 -:4:- court; but nothing could be recovered. The investigation of the case was thereafter entrusted with Crime Branch and PW6, DYSP, CBCID, Kozhikode conducted part of the investigation and it was completed by PW7. He submitted Ext.P17 forwarding note for examination of the counterfeit notes to the authorities concerned and obtained Ext.P18 report in which the opinion expressed is to the effect that the notes did not match with the numbering of the genuine notes and were therefore, counterfeit. The final report was laid thereafter by PW6 before the Committal Court.
5. The trial of the case commenced before the Additional Sessions Judge(Adhoc-1), Manjeri, after the appellants having denied charge framed against them for offence punishable under Section 489-C read with Section 34 IPC.
6. Prosecution on its side examined PWs 1 to 7 and marked Exts. P1 to P18 and MOs1 to 3. The appellants while questioned under Section 313 of the Code of Criminal Procedure, 1973(for short 'the Cr.P.C.) with reference to incriminating evidence said that they came to the Taj Tourist Home to meet Crl.A.No.1407/2006 -:5:- PW1 who was running a finance consultancy, for raising loan. They signed a few papers at the office of PW1 and thereafter, while waiting outside as per his instruction, police party came to the room of PW1 and thereafter to the appellants along with PW1. All were then taken to nearby police station at Peinthalmanna and while PW1 was let off, appellants were detained in the station without any reason. They did not possess counterfeit notes nor any such notes were recovered from them as alleged by prosecution. No defence evidence was adduced from their side, despite their having been called upon to enter on his defence.
7. The trial court addressed two questions based on Section 489-C of IPC, as to whether MO1 series counterfeit notes were seized from the possession of appellants and if so, prosecution could prove that the possession was with the knowledge that they were counterfeits. Both questions were answered in favour of the prosecution rejecting appellants' contention denying their involvement in the crime.
8. I heard the learned counsel for the appellants and the learned Public Prosecutor. Crl.A.No.1407/2006 -:6:-
9. The contention of the learned counsel for the appellants is that the search alleged to have been conducted by PW4 was not in accordance with law and therefore, it was vitiated. It was pointed out that no search memo was prepared and forwarded to the Committal Court notwithstanding the fact that the situation of police station, Peinthalmanna was not far away from the court. No arrest records were prepared by the Detecting Officer to prove that the appellants were arrested from Room No.57 of Taj Tourist Home, Peinthalmanna. As regards recovery of counterfeit notes from the alleged possession of appellants, there are material contradictions in the testimonies of PW2, Sub Inspector of police and PW4. It was also pointed out that since PW1 and PW5 who are the independent witnesses did not support prosecution to any extent, testimonies of official witnesses should have been approached with great caution and circumspection.
10. It was further argued that the contraband notes were not sealed nor the cover containing notes was caused to be signed by the independent witnesses or the appellants. Delay in production of material Crl.A.No.1407/2006 -:7:- objects in court is another argument addressed seeking rejection of the alleged seizure and recovery as unreliable. Lastly, it was also contended relying on decisions reported in M. Mammutti v. State of Karnataka[AIR 1979 SC 1705], Vijayan v. State of Kerala [2001(2) KLT 951] and Sukumaran v. Sub Inspector of Police [2006(4) KLT 613] that unless notes seized were of such a nature that by a mere look they could be identified as fake, presumption of knowledge as to possession of counterfeit notes cannot be drawn on the possessor.
11. The fact that the MO1 series notes recovered are counterfeit is proved beyond doubt by Ext.P18 report issued by the Authority after due verification and examination of notes sent to him. It was reported that notes examined did not match with the numbering of the genuine notes. This conclusion is unassailable and no material has been brought forth to suggest the report is in any way wrong or unacceptable.
12. The learned counsel for the appellants submitted that the cover containing the notes was not sealed by PW4 nor affixed with label containing signatures of the witnesses and the accused and Crl.A.No.1407/2006 -:8:- therefore, there is dearth of evidence to prove that same notes allegedly seized from the appellants reached the Authority for verification and examination. The argument does not merit acceptance since it is clear from Exts.P1 and P2 that immediately on seizure, the number of notes in different serials etc. were recorded in the mahazars. Exts.P1 and P2 reached the Committal Court on the very next day without any delay. Besides this, there is evidence from PW1, who is the occupant of nearby Room No.53 that before he signed the mahazars, contents thereof were read over and the seized notes were also shown to him. Even though PW1 turned hostile to prosecution and denied having witnessed the seizure of notes from the appellants, his evidence in part satisfies the court that the details of notes seized were actually recorded in the mahazar. When serial numbers in the notes were recorded in the mahazar and they, as a matter of fact, tallied with those forwarded to the authorities concerned for proper scrutiny and examination, merely because seal was not affixed on the cover, no confusion as to the identity of the notes seized Crl.A.No.1407/2006 -:9:- could be alleged by the appellants.
13. It is true that going by Ext.P10 property list, there was intervening delay of five days in production of the material objects before the court. But, this too is not fatal nor has the delay prejudiced the appellants because Exts.P1 and P2 containing the details of notes, search and arrest of appellants reached the committal court the very next day. So also, prompt arrival of Ext.P8 FIR on the next day in court, which too contained all necessary particulars relating to the crime also ensures that there could have been no chances for any manipulation or fabrication. Therefore, conclusion in Ext.P18 report could be safely relied on as having been arrived at with regard to the same counterfeit notes seized following the search conducted in Taj Tourist Home on 06.11.1992.
14. About the finding of the trial court as to seizure of MO1 notes from the possession of appellants, I do find no valid ground for any interference. It is proved beyond doubt that Room No.57 of Taj Tourist Home was searched on 06.11.1992 at 2.15 pm by the raid party led by PW4. In addition Crl.A.No.1407/2006 -:10:- to the testimonies given by PW2 and PW4, one more witness, the Manager of the tourist home examined as PW5 also testified that the said Room was searched, though he turned hostile without supporting the prosecution case to the partial extent that he did not see MO1 series notes being recovered from the possession of the appellants. It was he, who led the police party to the room for search. In addition to his oral evidence, Ext.P5 seizure mahazar of the reception register of the Tourist Home kept in his custody also proves that the room was taken on rent by the second appellant two days prior to the alleged seizure. This evidence borne out from Ext.P5 mahazar was rightly taken note of by the trial court in support of search and seizure.
15. The joint company and presence of appellants is not a disputed matter as being evident from the respective statements given by the appellants before the trial court while questioned under Section 313 of the Cr.P.C. The common defence of the appellants itself is that they came together to PW1 seeking loan, as if both of them wanted to raise finance from him and were together all along. When this Crl.A.No.1407/2006 -:11:- common contention is taken along with the testimonies given by PWs2 and 4 as to seizure of currency notes and arrest from room No.57, there is no reason to doubt the prosecution case that first appellant was also a co-occupant of room No.57 though it was taken in the sole name of the second appellant.
16. The argument that non preparation of arrest records is fatal to prosecution does not appear to be sound, since the arrest made is proved even otherwise through Exts.P1 and P2. So also, the contention that non preparation and non forwarding of search memo before conduct of search of Room No.57 despite the police station being near the court premises, will vitiate conviction is also not equally sound because any irregularity or illegality in the conduct of search will not by itself invalidate the seizure nor will it render the evidence there of inadmissible. Only thing that the court has to ensure is that the evidence collected by such search is nevertheless genuine and inspires truth.
17. Insofar as the present case is concerned, there is satisfactory evidence from the official witnesses that they searched the room and arrested Crl.A.No.1407/2006 -:12:- appellants together after seizing MO1 series counterfeit notes from their possession. The trial court which exhaustively analysed the testimonies of official witnesses, along with the available circumstances on record could not come across any material contradictions arousing doubt in the reliability of the evidence as to the search and seizure. Delay in production of MO1 series in court after five days, is also not material as already adverted to by me, since the details of search and arrest were even otherwise evident from Exts.P1, P2 and Ext.P8.
18. After hearing the arguments of learned counsel for the appellants and appreciating the evidence on record, I am fully satisfied that the finding of the court below accepting evidence as to recovery of MO1 counterfeit notes from the possession of appellants as reliable, is incapable of any interference. It is relevant to mention that none of the appellants has a case that any of the members of the raid party had any personal vendetta or other reasons to implicate them in a false case.
19. The next question that crops up for Crl.A.No.1407/2006 -:13:- consideration is whether MO1 series notes were kept by the appellants in possession with the knowledge that they were fake and intended to be used as genuine. It appears to be the true spirit of law emerging from the words used in Section 489-C I.P.C. that a possessor of counterfeit notes cannot be fastened with criminal liability, unless he is proved to have intended to use them as genuine with the knowledge that they are fake. But discovery of his animus is a difficult endeavour and it may be possible to trace it out having due regard to the variety of facts and circumstances arising in the case including as to how the physical features of the notes appear to an ordinary prudent man. According to the Honourable Supreme Court as held in M.Mammutti's case (supra), if by a mere look, the notes could be detected to be fake from their appearance, the knowledge of the accused could be readily drawn.
20. It is a matter of common knowledge that most of the counterfeit notes being recovered, appear to bear close resemblance with genuine notes on a casual sight or observation. Therefore itself, unless benefit of doubt as to knowledge of possession of Crl.A.No.1407/2006 -:14:- fake notes is given, it would lead to innocent persons also being penalised and justice denied. Yet it should be ensured that benefit of this doubt extendable to innocent persons never reaches under any circumstances nor is taken unfair advantage of by persons in possession of counterfeit notes, who have had time and opportunity to handle them with close association and also notice the real nature thereof. Otherwise every person in possession of counterfeit notes will invariably tend to defend him saying that being misled by close resemblance, he was not able to make out the real nature of the notes, taking his chance to escape from penal liability. Neither the close similarity in the physical appearance of notes nor the opportunity and time for observation taken by the possessor is a good defence capable of being upheld in all circumstances, since the ultimate decision of the court will have to rest on varying facts and probabilities of each case. When possessor's association with the counterfeit notes lasts for a reasonable period giving him opportunity to observe and understand the real nature thereof, then it being a special fact within the knowledge of Crl.A.No.1407/2006 -:15:- accused, it is up to the accused to show that he did not have requisite knowledge as to possession of counterfeit notes in order to exculpate him from penal consequences.
21. The court below in paragraph No.26 of the impugned judgment, after adverting to a few circumstances held that appellants had requisite mens rea at the time of seizure of the notes. It noted from the entries in the reception register that appellants had been staying together in the tourist home for two continuous days since 4.11.1992 for taking 'rest'. Their residential places were also not far off tending them to take any room on rent for a stay in the Tourist Home if at all purpose of their visit was to meet PW1 for raising loan. Further having regard to the parts of the body from where the recovery was effected also, the court below was of the opinion that appellants had necessary animus to conceal notes from being detected by others. The underwear pocket of the 2nd appellant and loin of 1st appellant where the notes were kept, according to the court below, were secret places for concealment.
22. The learned counsel for the appellants very Crl.A.No.1407/2006 -:16:- much assailed the approach of the court below as erroneous since keeping of the notes in such secret places was quite usual among persons in the lower class and further, staying in a lodge for one or two days by itself cannot be taken as a circumstance to draw a safe inference as to the intention of the appellants to commit the offence. It appears to be true that the prosecution did not have any case nor bring forth any evidence to the effect that appellants were persons living in nearby places and therefore itself their stay in the room was to be looked with suspicion.
23. The learned counsel also drew my attention to the testimony of PW2, the Sub Inspector of Police, and the answer given by him in the cross examination that one could not have ascertained from the very appearance of MO1 series notes that they were fake and it, as a matter of fact, required close scrutiny to distinguish the notes as fake. Based on his testimony, the learned counsel contended that even assuming appellants to have been in possession of the notes, it was beyond their knowledge that they were fake. I find my way difficult to accept this Crl.A.No.1407/2006 -:17:- contention since the answer given by PW2 is not factually correct when it is read in the light of Ext.P18 report.
24. This report discloses that MO1 series were printed using Block and were less in colour by appearance. When difference in colour really existed, in my opinion, appellants could hardly disown their knowledge about the true nature of the notes. Though the testimony of PW1 is hostile, it cannot be rejected outright as being irrelevant. He said that he had noticed the seized notes while signing Exts.P1 and P2 mahazars to be different in appearance from genuine currency notes and even by a casual sight also, they did not appear to be genuine notes. Giving due weight to the lightness in the colour as recorded in Ext.P18 report and the testimony of PW1 and also the few circumstances referred to by the court below in paragraph No.26 of the impugned judgment, I am of the opinion that knowledge of the appellants to possess counterfeit notes and intention to use them as genuine was proved beyond reasonable doubt.
25. It was lastly contended by the learned counsel for the appellants that appellants were not Crl.A.No.1407/2006 -:18:- questioned under Section 313 of Cr.P.C. with reference to their alleged knowledge as to possession of counterfeit notes or the alleged intention to use them as genuine and therefore, the conviction stood vitiated. This contention does not merit acceptance. It is true that questions put to the appellants do not indicate that they were specifically questioned by the trial court as to whether they kept the notes with the knowledge that they were counterfeit. All the same, the questions show that they were put with regard to the circumstances leading to the inference as to knowledge and intention of appellants. In my view, this is enough to meet the requirement as well as object of questioning under Section 313 of the Cr.P.C. Merely because a pointed and specific question as to the knowledge and intention was not formulated and put to the appellants, the omission will not result in causing any prejudice to the appellants and thereby vitiate the conviction, since his opportunity to explain the incriminating circumstances cannot be said to be impaired or taken away.
26. The impugned judgment of conviction for the Crl.A.No.1407/2006 -:19:- above mentioned reasons is not worth interfering and it is liable to be confirmed.
27. But, however, as regards the sentence imposed, I am of the view that, appellants deserve a lenient approach in the matter, considering their advanced age. Appellants are now in their seventies. Looking at their old age and also having due regard to the facts and circumstances in which possession of fake notes was traced, I am of the opinion that the sentence of five years is too harsh and excessive. It ought to be adequately reduced for meeting ends of justice. In my view, rigorous imprisonment for six months on each of the appellants without fine will meet ends of justice.
In the result, appeal partly succeeds. Confirming the conviction but reducing the impugned sentence imposed on appellants, each of them is sentenced to undergo rigorous imprisonment for six months. They will be entitled to usual set off for the period of detention, if undergone by them in prison.
Sd/-
T.V.ANILKUMAR,JUDGE DST/ami