Kerala High Court
Jomon, S/O. Antony vs State Of Kerala on 24 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
CRL.A NO. 1432 OF 2008
[AGAINST THE JUDGMENT IN S.C.NO.580/2005 ON THE FILE OF THE COURT
OF ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT NO.II, ADHOC),
THRISSUR DATED 15.7.2008]
APPELLANTS/ACCUSED NOS.1 TO 3 & 6:
1 JOMON, S/O. ANTONY
KIZHAKOOTTU VEETTIL, ERUMAPETTY DESOM, KARIYANNUR
VILLAGE, TALAPPILLY TALUK
2 SASIKUMAR SO. NARAYANAN NAIR
SEKHARATH VEETTIL, MANAPADY DESOM, KADANGOD VILLAGE,
TALAPPILLY TALUK
3 SIDDIQUE AKBAR @ SIDDIQUE
S/O. KUNJUMUHAMMED, KUNNATHUVALAPPIL VEETTIL,
VAZHIYURMURI DESOM, VELLAKODE VILLAGE, TALAPPILLY
TALUK.
4 ASHARAF S/O. MUHAMMAD
MANAYATH VEETTIL, PUNNA DESOM, CHAVAKKAD AMSOM,
MANATHALA VILLAGE
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.P.MAYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEING FINALLY HEARD ON
22.05.2023, THE COURT ON 24.05.2023 DELIVERED THE FOLLOWING:
CRL.A.No.1432/2008 2
J U D G M E N T
The petitioners are accused Nos.1 to 3 and 6
in S.C.No.580/2005 on the file of the Additional Sessions Court (Fast Track Court No.II, Adhoc), Thrissur. The aforesaid Sessions Case arose from Crime No.109/1995, registered by Erumapetty Police Station which was later investigated by the Deputy Superintendent of Police, CBCID (CRS), Ernakulam. The offence alleged against the accused persons, a total of eight in number, was under section 489B r/w. Section 34 of the Indian Penal Code (IPC).
2. The prosecution case is that the accused persons, with the common intention to carry out the transactions, possessed counterfeit currency notes of denomination of rupees 100. The CBCID, after completing the investigation, submitted a final report against eight accused persons before the Judicial First Class Magistrate CRL.A.No.1432/2008 3 Court, Kunnamkulam, where it was taken into the file as C.P.No.67/2000. While the committal proceedings were in progress, the 8th accused passed away and hence the proceedings against him got abated. The matter was committed to the Sessions Court so far it relates to accused Nos.1 to 7, and the same was made over to the Additional Sessions Court (Fast Track Court No.II, Adhoc), Thrissur, where it was tried as S.C.No.580/2005. Even though all the accused initially participated in the trial, after the prosecution evidence concluded, the 5th accused absconded and hence the case against him was split up. In support of the prosecution case, Pws.1 to 18 were examined, Exhibits P1 to P36 were marked, and Material Objects 1 to 7 were identified. From the side of the defence, DWS.1 and 2 were examined and Exhibits D1 to D3 were marked.
3. After evaluating the materials placed on CRL.A.No.1432/2008 4 record, the learned Sessions Judge found the accused Nos. 4 and 7 not guilty. However, accused Nos.1,2,3 and 6 were found guilty of the offence under section 489B read with section 34 of the Indian Penal Code and accordingly, accused Nos. 1 and 6 were sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.50,000/- each with a default sentence to undergo rigorous imprisonment for a period of 2 years each. Accused Nos. 2 and 3 were sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.20,000/- each with a default sentence to undergo rigorous imprisonment for a period of one year each. This Crl.Appeal is filed by accused Nos.1 to 3 and 6 challenging the conviction and sentence as mentioned above.
4. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel for the appellants, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor CRL.A.No.1432/2008 5 for the State.
5. The learned Senior Counsel for the appellants contended that the prosecution case was full of inconsistencies/discrepancies, and under no circumstances the learned Sessions Judge should have arrived at a finding of guilt. It was pointed out that no materials warranting a conviction and consequential sentence exist. It is further pointed out that, even if it is assumed for argument's sake that counterfeit currency notes were seized from the possession of the accused persons, that by itself is not sufficient to hold the appellants guilty of the offence under section 489B of IPC unless it is shown that, the possession of currency notes by the appellants was with the knowledge that the same was counterfeit notes. According to the learned counsel, from the evidence of the prosecution, it is clear that the characteristics of the counterfeit notes CRL.A.No.1432/2008 6 allegedly seized from the appellants were such that it was not possible to be identified as counterfeit currency notes under normal circumstances. Reliance was also placed on the decision rendered by the Hon'ble Supreme Court in Mammutti v. State of Karnataka [AIR 1979 SC 1705]and also the decision rendered by this Court Anthru v. State of Kerala [2020(4)KHC 469]. It is pointed out that, in the said decisions, it was held that if there is no evidence or any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was counterfeit notes, no conviction could be possible, unless there are specific materials indicating the knowledge of the accused as to its fakeness.
6. On the other hand, the learned Public Prosecutor would oppose the aforesaid CRL.A.No.1432/2008 7 contentions by pointing out that ample materials are available on record to establish the guilt of the accused persons. It is pointed out that, even though independent witnesses turned hostile to the prosecution, the evidence of Pws.1, 14, 15 and 16 would clearly establish the role played by each and every appellant in committing the crime.
7. I have gone through the records. The crucial aspect to be noticed in this case is that, even though 18 witnesses were examined by the prosecution, all the independent witnesses, i.e. Pws.2 to 13 turned hostile to the prosecution. The only evidence available for the prosecution to establish the case is the evidence of PW1, PW14 to PW18; all are official witnesses. The crucial evidence is that of PW1, who was the detecting officer. PW1 narrated the manner in which the seizure and the arrest of the accused persons were made. According to him, CRL.A.No.1432/2008 8 on 9.7.1995 at about 9.30 in the morning, he got a secret information that the 1st appellant/1st accused had concealed counterfeit currency notes in his establishment name, 'Jaifield Flour Mill'. Immediately thereupon, he prepared a search memorandum, sent it to the jurisdictional court, and conducted a search in the premises of the 1st accused along with the police party. When they reached there at about 10 a.m. on the day, the 1st accused was present, and during the search, the 1st accused had produced six currency notes of 100 rupee denomination, which were kept in an almirah in his establishment. On inspection, PW1 had some suspicion about the genuineness of the said currency notes and upon closure scrutiny, it was revealed that the said notes were counterfeit. Immediately, the notes were seized by preparing Exhibit P2 seizure mahazar and the 1st accused was arrested. Even though a search was conducted in the residence CRL.A.No.1432/2008 9 of the 1st accused, nothing could be recovered. Thereafter, he, along with the police party, reached the Police Station and registered an F.I.R.
8. During the course of interrogation of the 1st accused, he revealed the details of the source from which he obtained the said counterfeit notes. According to the 1st accused, he got it from the 2nd accused and thereupon, a search was conducted in the house of the 2nd accused. Exhibit P5 is the search memo prepared for the said purpose. At the time of conducting search, the 2nd accused was present, and during the same, he made available a 100 rupee currency note concealed in a notebook. On inspection, PW1 found that the same was a counterfeit note, and accordingly, the said counterfeit was seized by preparing Ext.P6 mahazar. The 2nd accused was also arrested.
9. During the interrogation of the 2nd CRL.A.No.1432/2008 10 accused, he informed that he got the currency note from the 3rd accused and thereupon, a search was immediately conducted in the residence of the 3rd accused. Exhibit P7 is the search memo evidencing the same, and at the time of conducting search, the 3rd accused was present in his house. During such search, the 3rd accused made available nine numbers of currency notes of 100 denominations which were kept inside the table. Being convinced of the fact that the said currency notes were counterfeit, the same were seized by the PW1 after preparing Exhibit P8 seizure mahazer. The 3rd accused was also arrested. On interrogation of the 3rd accused, he informed that he got the same from the 4th and 5th accused, and it was also informed that some counterfeit currency notes were also given to the 7th accused. Immediately, a search was conducted in the residence of the 7th accused after preparing CRL.A.No.1432/2008 11 Exhibit P9 search memo. However, no counterfeit currency notes were recovered from the search.
10. Thereafter, the 5th accused was arrested and while conducting his body search, nine counterfeit currency notes of 100 rupee denomination could be seized from his shirt's pocket. Exhibit P12 is the seizure mahazar evidencing the same. Upon getting the information from the 5th accused that the 6th accused is also having in his possession some counterfeit currency notes, the 6th accused was arrested. On conducting his body search, nine currency notes from his possession were also seized, which is evidenced by Exhibit P11 seizure mahazar.
11. According to PW1, he deputed CW2, the Sub Inspector of Police, to conduct the search in the residence of the 4th and 8th accused. Accordingly, he conducted the search in their residences. During the search, CW2 could recover CRL.A.No.1432/2008 12 a 100 rupee currency note from the possession of the 4th accused. During the search conducted in the residence of the 8th accused, he was not there. However, the wife of the 8th accused (PW13) made available three counterfeit currency notes of 100 rupee denomination, which were seized by CW2. Unfortunately, CW2 could not be examined by the prosecution as he passed away by the time when the trial commenced.
12. As mentioned above, all the independent witnesses, viz. Pws.2 to 13 who witnessed the respective seizures turned hostile to the prosecution, and no part of their evidence would support the prosecution case. The only available evidence relied upon by the prosecution is the evidence of PW1, PW14, PW15 and PW16. The crucial contention raised by the learned Senior counsel for the appellants is that the evidence adduced by the prosecution, mainly in the form of oral evidence of Pws.1, 14 to 16, is not CRL.A.No.1432/2008 13 sufficient to establish the case. PW14 is the Assistant Sub Inspector of Police who accompanied PW1 while conducting searches in the premises of accused Nos.1 to 3. PW15 is the Officer who assisted CW2 in conducting the search and arresting accused Nos.4 and 8. PW16 is the Police Constable who accompanied PW1 while conducting the search in the establishment of the 1st accused and witnessed the arrest of the 1st accused.
13. When considering the adequacy of the evidence adduced by the prosecution to establish the guilt of the accused persons, I find some force in the contention put forward by the learned counsel for the appellants. As mentioned above, apart from the evidence of the official witnesses, no other evidences are forthcoming from the part of the prosecution. In the absence of any independent evidence, the scrutiny of the evidence of the official witnesses has to be CRL.A.No.1432/2008 14 done strictly. I have no doubt in my mind that if the evidence of official witnesses is without any discrepancies and found to be trustworthy, nothing will preclude this Court from convicting the accused by placing reliance upon the same. Thus, the question arises is as to whether the evidence of official witnesses in this case is that of such quality so as to arrive at the conclusion of the guilt by merely placing reliance upon the same. While considering the evidence adduced by the prosecution, by keeping that perspective in mind, it can be seen that there are several discrepancies in the evidence of the official witnesses.
14. As mentioned above, the most crucial evidence is that of PW1. The entire proceedings were commenced based on the information received from PW1 as to the possession of the counterfeit currency notes by the 1st accused. All the other accused were implicated in this case based on CRL.A.No.1432/2008 15 the information revealed from the 1st accused and the other accused who were arrested during the investigation. Thus, the entire incident started from the search conducted on the premises of the 1st accused and also from his arrest. Exhibit P2 is the seizure mahazar based on which the recovery of six numbers of counterfeit currency notes was affected from the possession of the 1st accused. During the cross- examination of PW1, the statement given by PW1 before the Investigation Officer (PW17) was marked as Exhibit D1. In Exhibit D1's statement, he mentioned that he got a secret information about the possession of counterfeit currency notes by the 1st accused at 8 a.m. on 9.7.1995. However, during his cross-examination, he stated that he got the information between 9-9.30 a.m. on 9.7.1995. Of course, the said difference in the timing could be a minor discrepancy if it was the only discrepancy in the evidence of PW1. CRL.A.No.1432/2008 16 However, on careful scrutiny of the evidence of PW1 with the other materials produced by the prosecution, it can be seen that there are some other glaring discrepancies as well. During the cross-examination, PW1 clearly stated that Exhibit P2 seizure mahazar was prepared in the handwriting of CW2 (the deceased Sub Inspector of Police). However, in Exhibit D1, he clearly stated that, while Exhibit P2 mahazar was being prepared, he sent CW2 to find out whether the shop of the 2nd accused was open or not. From the examination of Exhibit P2 seizure mahazar, it can be seen that even though the name of CW2 is specifically mentioned therein, he did not sign it. However, during the cross-examination, PW1 clearly stated that Exhibit P2 was prepared by CW2, and he was present there throughout the search. Even though the learned counsel for the accused specifically put the contents of Exhibit D1 to him, he stated that he does not remember CRL.A.No.1432/2008 17 whether he had made any statement to that effect. The aforementioned discrepancy is also evident from the evidence of PW14 and PW16. PW14 also stated that, during the inspection, CW2 was present. However, Exhibit D2 is the statement given by PW14 before PW17 wherein it is mentioned that, before completing the preparation of mahazar, PW1 had sent CW2 somewhere for some purposes. This portion of the statement was specifically put to PW14 during the course of the examination, but he could not give any proper explanation for the same. PW16 also made a similar statement during his cross- examination. Exhibit D3 is the portion of the statement wherein it was mentioned by him that, before Exhibit P2 mahazar was completed, PW1 had sent the Sub Inspector of Police to some other place. During the examination of PW17, the investigation officer clearly stated that PW1, PW14 & PW16 had given statements before him, as CRL.A.No.1432/2008 18 mentioned in Exhibits D1 and D3, respectively. When all these aspects are taken into consideration, it can be seen that there is an apparent discrepancy with regard to the preparation of Exhibit P2 seizure mahazar. Since all the subsequent events which formed part of the offence were following the seizure mahazar of the counterfeit currency notes from the possession of the 1st accused and the information received from him, all the subsequent events shall also have to be treated as tainted with a suspicion when it was found that the first search and seizure conducted in the premises of the 1st accused itself is doubtful.
15. When considering the role of other accused, the only evidence apart from the evidence of PW1 are the depositions of PW14 and PW16. As far as PW14 is concerned, he was party to the search conducted on the premises of the 1st accused CRL.A.No.1432/2008 19 alone. I have already found that the materials placed on record by the prosecution about the search conducted on the premises of the 1 st accused are doubtful. PW15 is the person who accompanied CW2 in conducting the search in the residence of the 4th and 8th accused. As the 4th accused is already acquitted by the trial court, and the proceedings against the 8th accused got abated consequent to his death, the evidence of PW15 does not have any significance as far as this appeal is concerned. When coming to the evidence of PW16, it can be seen that, according to him, he was party to the search conducted on the premises of accused Nos.1 to 3 and 7. The 7th accused is already acquitted as no counterfeit currency could be recovered from his possession. However, the crucial aspect to be noticed in this regard is that, even though he claimed to be a party to the police team while conducting the search in the residence of the CRL.A.No.1432/2008 20 aforesaid accused persons, his presence is not reflected in any of the contemporaneous documents. He did not sign in any of the documents as a witness. No other materials are available on record regarding the presence of PW16 when conducting the search on the premises. In Exhibits P2 and P4, the names of the officers who accompanied PW1 are clearly mentioned. However, PW16 viz. Sri. Francis A.K. is not among the persons referred to therein. In such circumstances, in the absence of any evidence concerning the presence of PW16 in the aforesaid searches, it is not safe to rely upon the evidence of PW16 for supporting the version of PW1. As regards the arrest of the 6th accused and the seizure of the counterfeit currency from his possession, apart from the evidence of PW1, there are no other reliable materials.
16. Another aspect which creates a shadow of doubt in the case advanced by the prosecution is CRL.A.No.1432/2008 21 the documents produced as Exhibits P23, P24 and P26. Exhibit P23 is a report submitted by the police before the learned Magistrate for correcting the mistakes in the contents of Exhibit P12 mahazar. Exhibit P24 is the report submitted by the police for correcting mistakes in the time mentioned in the F.I.S. It was pointed out that, in the F.I.S., the time of occurrence was wrongfully mentioned as 10.30 a.m. instead of 10 a.m. Exhibit P25 is the application submitted by the Investigation Officer for correcting the address of the 8th accused. Though, these mistakes in the documents, including the FIS, which is a crucial document, by themselves could not be treated as very crucial, when the same is taken into consideration in the background of various other discrepancies discussed above, those would create a shadow of doubt as to the evidence adduced by the prosecution. Thus, when all these CRL.A.No.1432/2008 22 discrepancies are taken together and considered, those would lead to a definite conclusion that the investigation, in this case, was conducted in a shabby manner. No independent evidence is also available on record to establish the prosecution case. In such circumstances, in the absence of such independent witnesses, it is not at all safe to hold the accused persons guilty based on the evidence of the official witnesses alone, which are tainted with certain discrepancies.
17. There is yet another aspect. Even if it is assumed for the argument's sake that the prosecution successfully established the case that the accused persons were in possession of counterfeit currency notes, that by itself is not sufficient to hold them guilty under section 489B of IPC. Section 489B of IPC reads as follows:
"489B. Using as genuine, forged or counterfeit CRL.A.No.1432/2008 23 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 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."
A careful reading of the same would reveal that to attract the said offence, the person who had dealt with such counterfeit currency note or banknote must have the knowledge, or there must be reasons for him to believe that the said currencies were forged or counterfeit. Thus, mere possession of counterfeit notes by itself is not a ground to hold the accused guilty of the offence under section 489B of IPC. To punish the accused, the prosecution must also prove that the accused persons possessed counterfeit currency with the knowledge that the same was a counterfeit currency. In M.Mammutti v. State of Karnataka (AIR 1979 SC 1705), the Hon'ble Supreme Court observed as follows:
"The appellant has been convicted in this appeal CRL.A.No.1432/2008 24 under Sections 489-B and 489C and has been sentenced to RI for six months respectively and fine of Rs.500. The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupees note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub-Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under S.342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs.390. These currency notes have been given to him by the purchaser. He also said that he did not know that the currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature of description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under S.342 Cr.P.C. The High Court has affirmed the judgment of the learned Sessions Judge on the ground that in his statement under S.342 made before the committing court the accused has made a statement different from that made in the Sessions Court and therefore the appellant has reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the Committing Court in Ext.P13 which appears at p.154 of the paper book, the appellant has struck to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs.390 in two rupee notes. We are not able to find any inconsistency between the answer given by the accused in his statement under S.342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr.Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused CRL.A.No.1432/2008 25 knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him.'' (Emphasis supplied)".
18. In the said decision, it was categorically held by the Hon'ble Supreme Court that if the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit, the presumption as to the knowledge of fakeness could reasonably be drawn. This Court, in Anthru's case (supra) followed the principles laid down by the Hon'ble Supreme Court and held that mere possession of a counterfeit note without the knowledge or reason to believe that the currency note or bank note was forged or counterfeit and intending to use the same as genuine, there cannot be a conviction.
19. In this case, the prosecution does not have a case that the characteristics of the CRL.A.No.1432/2008 26 currency note allegedly seized from the possession of the appellants were such that a mere look at the same would enable an ordinary person to identify the same as a counterfeit note. On the other hand, going by the description given by the seizure mahazers in this case, it is evident that it was not possible to identify it as a counterfeit currency note by merely looking at it. The fakeness of the notes could be detected only on closer scrutiny. The aforesaid aspect is evident from Exhibit P12 report of the expert. The evidence of PW1 was also to the effect that the fakeness of the notes could be identified only on close scrutiny. In this case, even if the materials adduced by the prosecution were treated as acceptable for the argument's sake, it would only show the possession of the counterfeit notes by the respective accused persons. There are absolutely no materials CRL.A.No.1432/2008 27 available on record indicating the conscious possession of the appellants/accused as to its fakeness. The evidence also clearly suggests that the currency notes were not easily identifiable as counterfeit. In such circumstances, this is a fit case in which the principles laid down by the Hon'ble Supreme Court in M.Mammutti's case (supra) and that of this Court in Anthru's case (supra) can be applied.
20. Thus, after taking into account all the relevant aspects, I am of the view that, interference in the judgment rendered by the learned Sessions Judge is required to be made. The learned Sessions Judge appears to have entered into the finding of guilt of the accused persons by merely placing reliance upon the evidence of PW1 alone. On careful scrutiny of the evidence of PW1, I am of the view that a conviction based on the said evidence alone is CRL.A.No.1432/2008 28 not at all safe, as there are certain glaring discrepancies therein. Besides the same, the prosecution also could not prove the conscious possession of the appellants. In such circumstances, I find merits in the appeal.
Accordingly, this appeal is allowed. The judgment rendered by the Additional Sessions Judge (Fast Track Court No.II, Adhoc), Thrissur) on 15.7.2008 in S.C.No.580/2005 is hereby set aside, and the appellants are acquitted of all the charges. The bail bond executed by them shall stand cancelled.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk