Kerala High Court
Karadan Abdul Gafoor vs The Deputy Superintendent Of Police on 9 October, 2007
Author: K.R.Udayabhanu
Bench: K.R.Udayabhanu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1167 of 2002()
1. KARADAN ABDUL GAFOOR, S/O. KHALID,
... Petitioner
Vs
1. THE DEPUTY SUPERINTENDENT OF POLICE,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :09/10/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.1167 of 2002
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Dated this the 9th day of October, 2007
JUDGMENT
The accused stands convicted for the offence under Section 489B and 489C read with Section 34 IPC and sentenced to undergo R.I. for a period of six years for each of the offences.
2. The prosecution case is that on 23.12.1991 at about 11.50 a.m. near the Community Hall, Perinthalmanna A1 was found to be in possession of 16 fake dollars of 100 denomination and at about 1.30 p.m. A2 was found in possession of 23 fake dollar notes of 100 denomination, one dinar of 500 denomination and 1 dirham of 100 denomination knowing fully well that the above are fake and with intention to transact the same as genuine.
3. A1 absconded during the pendency of the proceedings before the court below.
4. The evidence adduced in the matter consisted of the testimony of PWs' 1 to 7, Exts. P1 to P15, MOs' 1 to 7 series and MO8 to MO10 of which Ext. P13 is the expert report from the CRL.A.1167/2002 Page numbers Currency Note Press, Nahsik.
5. PW1, the then C.I. of police, Perinthalmanna has testified that on the particular day himself and the police party was conducting patrol duty and when he reached near the community hall he received source information that A1 is in possession of fake dollars and is standing at the spot for transacting the same and that he reached the place at about 11.30 a.m. and questioned A1 who was found at the spot and recovered from his shirt pocket 16 American dollars of 100 denomination and the same was found to be fake. The above currency notes as well as the shirt worn by A1 were seized and prepared Ext. P1 seizure mahazar at the spot. He also arrested A1 at the spot. A1 was taken to the police station and the crime was registered. i.e., Ext.P2(a); and on questioning A1 information was gathered that A2 is also having possession of fake dollars. When questioned A2 he handed over a paper packet containing 23 U.S. dollars of 100 denomination and 1 dinar of 500 denomination and 1 dirhum of 100 denomination. The same was also taken into custody as well as the seizure CRL.A.1167/2002 Page numbers mahazar prepared at the spot i.e., prepared in the presence of the witnesses. The house of A2 was searched as per Ext. P5 search memo. Exts. P6 and P7 are the search lists. He has also identified A2. The seized articles were produced before the court below. Subsequently, the case was investigated by the CBCID. PW1 has also identified the fake currency notes seized as well as the newspaper with which the notes were packed.
6. PW2 is the attestor to Ext. P1 seizure mahazar of seized counterfeit currency which were recovered from A1. He has stated that he also witnessed the arrest of A1.
7. PW3 is witness to Ext. P4 scene mahazar of the place from where A1 was arrested. PW4 is the witness to the seizure mahazar as to the recovery of the counterfeit currency from the house of A2. He has stated that he has witnessed A2 handing over the packet containing fake currency. But in the cross examination, he has stated that he reached the place after the police searched the house etc. He has also stated in the cross examination that he came to the spot on hearing that A2 has been arrested. But in the re-examination he has also supported CRL.A.1167/2002 Page numbers the prosecution version. I find that the evidence of PW4 cannot be relied as his version is not consistent. PW5 is the police constable who was along with PW1 at the time of arrest of A1 as well as A2. PW5 has testified that when A2 was questioned he went inside the house and came out with a packet containing counterfeit currency notes. PW5 has stated that Ext. P3 seizure mahazar was written by him and it is in his handwriting. It is stated that search list was written by one Unnikrishnan, P.C. The court below has meticulously considered the evidence adduced in the matter as to the recovery of the fake currencies from A1 and A2. PW6 is the Sub Inspector of Police, CBCID who subsequently investigated the matter. PW7, the DYSP, CBCID laid the charge. PW6 has testified as to the details of investigation in the matter and as to the recording statement of the witnesses. Ext. P9 is the report incorporating the offence under Section 489B is wherein it stated that on information from A1 after obtaining custody of A1 he was taken to Sivakasi and to Madurai to find out the source. But he could not succeed. Ext. P10 is the search list of the wife's house of Avaran who is the CRL.A.1167/2002 Page numbers friend of A1. Ext. P11 is the search list of the house of Ramakrishnan who is another friend of A1. Ext. P12 is search memo. PW7, the DYSP had made a request to the court to send the notes seized from the accused to the Government of India Currency Note Press, Nahsik for a report which is marked as Ext. P13. I find that no contradictions or omissions with respect to the previous statement of PWs' 1, 4 and 5 has been brought out. Ext. P13 expert report is specific as to the fact that U.S. dollars forwarded for examination are fake and counterfeit.
8. As contended by the counsel for the appellant that there is no evidence to establish the allegation under Section 489B so far as A2 is concerned. There is no allegation that A2 was found transacting in fake dollar notes. Hence, I find the conviction and sentence for the offence under Section 489B is liable to be set aside ; and I do so.
9. So far as the offence under Section 489C is concerned I find that it has been fully established that A2 was found in possession of fake dollar notes as alleged. It is contended by the counsel for the appellant that the prosecution has failed to CRL.A.1167/2002 Page numbers establish the mens rea in the sense that A2 was aware that the dollar notes were not genuine and that the same was counterfeit and that he was intending to use the same as genuine. Counsel has relied on the decisions of this court and the decision of the apex court in Raveendran vs. State of Kerala (2007(2) KHC
818), Kuttan Nadar vs. State (2002(3) KLT SN 48 Case No.68), Gafoor vs. State of Kerala (1987(2) KLT 730), Umashanker vs. State of Chhattisgarh (2001(3) KLT 681 (SC)). I find that none of the above decisions are apposite to the facts of the present case. A2 was having in his possession 23 dollar notes of 100 denomination. There is no explanation for the possession of the same. The suggestion that the same are fancy notes is just absurd. Mens rea is the mental condition that can be ascertained or inferred from the facts proved. There can be no objective evidence as such to prove mens rea. In the circumstances, I find that the offence under Section 489C is squarely attracted in the present matter. The conviction for the offence under Section 489C is confirmed.
10. Counsel for the appellant has pleaded for leniency CRL.A.1167/2002 Page numbers pointing out that the family of the appellant consisting of wife, children and parents are solely depending on the income of the appellant for their livelihood. It is also pointed out that the incident took place in December, 1991. But considering the gravity of the fact, I find that the imprisonment cannot be avoided.
11. All the same, considering the long pendency of the matter the sentence imposed for the offence under Section 489C read with Section 34 IPC is modified to R.I. for six months and to pay fine of Rs.25,000/- and in default, to undergo R.I. for six months more.
The criminal appeal is disposed of accordingly.
K.R.UDAYABHANU, JUDGE csl