State Of Karnataka vs Afthab Ahammed Khan
2023 Latest Caselaw 2731 Kant

                                     Crl.A.No.100132/2019

                             1


 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
        DATED THIS THE 1ST DAY OF JUNE, 2023
                        PRESENT
       THE HON'BLE MR JUSTICE ASHOK S. KINAGI
                           AND
       THE HON'BLE MR JUSTICE VENKATESH NAIK T
         CRIMINAL APPEAL NO. 100132 OF 2019
BETWEEN:


STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
YELLAPUR POLICE STATION, UTTARA KANNADA, DIST:
KARWAR, THROUGH THE ADDL. STATE PUBLIC
PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT
OF KARNATAKA, DHARWAD BENCH.
                                         ...APPELLANT
(BY SRI.V.M.BANAKAR, ADDITIONAL SPP)

AND:

AFTHAB AHAMMED KHAN,
S/O. IBRAHIM KHAN, AGE: 47 YEAR,
R/O: H.NO.5, MOHIDDIN STREET,
MADEEN COLONY, BHATKAL DIST: KARWAR.
                                          .. RESPONDENT
(BY SRI.MAQBOOL PATIL, ADV. FOR SRI.K.L.PATIL, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C. SEEKING TO, A) GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITAL DATED
02.07.2018 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
UTTARA KANNADA, DIST: KARWAR IN S.C.NO.44/2012; B) TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
02.07.2018 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
UTTARA KANNADA, DIST: KARWAR, IN S.C.NO.44/2012; AND
C) CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 489(B)(C) OF IPC.
                                         Crl.A.No.100132/2019

                             2


      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.05.2023, COMING ON FOR
PRONOUNCEMENT        OF  JUDGMENT    THIS DAY, ASHOK
S. KINAGI, J., DELIVERED THE FOLLOWING:

                       JUDGMENT

The State has filed this appeal under Section

378(1) & (3) of Cr.P.C. challenging the impugned

judgment and order of acquittal dated 02.07.2018

passed by the Principal District and Sessions Judge,

Uttara Kannada, Karwar in S.C.No.44/2012 for the

offences punishable under Sections 489B and 489C

r/w Section 34 of IPC.

2. Brief background of the case:

It is the case of the prosecution that the accused

with an intention of circulating 75 fake notes of

Rs.1,000/- denomination, went to Yallapur on

14.01.2012 and accused No.1 went to shops of

C.Ws.10 and 11 with an intention of circulating fake

notes of Rs.1,000/- denomination and at that time, Crl.A.No.100132/2019

the complainant came to know about the said

circulation of notes by the accused and seized 75 fake

notes of Rs.1,000/- denominations from the accused

and other accused. On 14.01.2012, the complainant

came to the police station and lodged the complaint.

On the strength of the said complaint, a case came to

be registered against the accused in crime No.8/2012

and the investigation was taken up by the police. After

investigation, police filed charge sheet against the

accused for the offences punishable under Sections

489B and 489C r/w Section 34 of IPC. The accused

produced before the JMFC, Yellapur and were

remanded to custody and the charge sheet was filed

and thereafter, the learned Magistrate committed the

case to the Sessions Court for trial.

3. After committal records were received by

the sessions court, accused Nos.1 and 2 were

produced before the court and accused No.2 has been Crl.A.No.100132/2019

released on bail by virtue of the bail in

Crl.Misc.No.153/2012. Subsequently, accused No.1

was also granted bail. Thereafter, the charge for the

offences punishable under Sections 489B and 489C

r/w Section 34 of IPC was framed. The accused

pleaded not guilty and claim to be tried.

4. The prosecution in order to bring home the

guilt of the accused examined 16 witnesses as P.Ws.1

to 16 and got marked Exs.P1 to P31 and 103

properties at M.Os.1 to 103. After completion of the

evidence, statement of the accused was recorded by

the trial court under Section 313 of Cr.P.C. and the

case of the accused is of total denial. After hearing the

detailed arguments, the learned Sessions Judge

formulated the following points:

1) Whether the prosecution proves beyond all reasonable doubt that the accused No.1 and 2 with an intention of circulating fake Crl.A.No.100132/2019

notes on 14.01.2012 went to Yellapur and were trying to use 75 fake notes of Rs.1000 denomination as genuine and thereby accused have committed the offence punishable under Section 489B r/w 34 of Indian Penal Code?

2) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place the accused with an intention of circulating fake notes went to Yellapur and the accused No.1 went to the shop of C.Ws.10 and 11 with an intention of circulating fake notes of Rs.1000 denomination and the accused were found possessing 75 fake currency notes of Rs.1000 denomination and thereby the accused have committed the offence punishable under Section 489C r/w 34 of Indian Penal Code?

3) What order?

FINDINGS OF THE SESSIONS COURT:

5. On careful perusal of the entire evidence

led by the prosecution, it may be noted that except

the evidence of police officers none of them have Crl.A.No.100132/2019

supported the case of the prosecution. There is

nothing on record to show that M.Os.1 to 75 were

seized from the accused and seizure pancha have not

properly supported the prosecution story. Merely

because accused Nos.1 and 2 were convicted by the

District and Sessions Judge, Haveri, it cannot be the

sole ground to suspect the accused that they have

tried to commit the offences alleged in this case. Since

seizure of the fake notes from the accused is not

proved by the prosecution and there is no consistent

evidence on the part of the prosecution. Under such

circumstances prosecution cannot be held to be

proved that accused Nos.1 and 2 were possessing

fake notes and they were intending to circulate the

said fake notes and tried to cheat the public. Hence, in

the absence of proper material, the learned Sessions

Judge was unable to hold that the prosecution has

proved the commission of the offences by accused Crl.A.No.100132/2019

Nos.1 and 2 beyond reasonable doubt and answered

point Nos.1 and 2 in the negative and against the

prosecution and point No.3 that the accused are

entitled for acquittal on the ground of benefit of doubt

and acquitted the accused for the offences punishable

under Sections 489B and 489C r/w Section 34 of IPC.

Aggrieved by the judgment of acquittal, the State has

preferred this appeal.

6. We have heard the learned Additional SPP

appearing for the appellant-State and learned counsel

for the respondents.

7. Learned Additional SPP submits that P.W.1

is the complainant and he has clearly deposed on oath

before the trial court that on suspicion he caught hold

of accused and on enquiry it is revealed that one

Kumar had supplied fake notes for circulation. In the

presence of witnesses, P.W.1 has seized the original Crl.A.No.100132/2019

notes worth Rs.2,500/-, fake notes, cigarette packs

and old monk liquor bottle. He submits that defence

has not elicited anything in the cross-examination to

disbelieve the truthful version of this witness. Except a

bald denial of suggestion that M.Os.1 to 75 did not

belong to the accused and nothing worth is elicited.

He submits that P.W.2 is the pancha for seizer of

M.Os.1 to 75 and also other articles from accused

No.1. P.W.2 has supported the case of the prosecution

and the same is corroborated with the evidence of

P.W.1, i.e., PSI-complainant. He submits that P.W.5 is

the liquor shop owner and deposed that he has seen

the purchase of whisky bottle by paying Rs.1,000/-

and the same was returned to the accused by the

cashier of wine shop and further deposed about the

possession fake notes. P.W.7 is also a owner of the

grocery shop wherein the accused purchased cigarette

and gave Rs.1,000/- note and the same was returned Crl.A.No.100132/2019

to the accused suspecting the same as fake note. He

submits that P.W.8 is the Deputy Manager of RBI and

he has produced the certificate as per Exs.P2 to P12

wherein it is clearly mentioned that after examination

of suspected currency notes are not genuine Indian

bank notes. He submits that oral and documentary

evidence produced by the prosecution proves its case

beyond all reasonable doubt and the prosecution has

placed cogent and reliable evidence, independent

witnesses coupled with the evidence of the

complainant and other police officials to bring home

the guilt of the accused No.1 beyond all reasonable

doubt. The trial court without considering the material

evidence produced by the prosecution has erroneously

acquitted the accused. The impugned judgment and

order of acquitted is perverse and unsustainable in the

eye of law. Hence, on these grounds, he prayed to

allow the appeal.

Crl.A.No.100132/2019

8. Per contra, learned counsel for the

respondent submits that though prosecution has

examined 16 witnesses, but none of them have stated

regarding seizure of fake notes from the custody of

the accused. He submits that material witnesses and

panchas have turned hostile to the case of the

prosecution. He submits that trial court after

appreciating the entire evidence of the prosecution

witnesses and material placed on record was justified

in passing the order of acquittal. He submits that the

judgment and order of acquittal passed by the trial

court is just and proper and does not call for any

interference by this court. Hence, on these grounds he

prayed to dismiss the appeal.

9. Having heard the learned counsel

appearing for the parties and after bestowing our

careful and anxious consideration to the rival

contention raised at the bar, we are of the considered Crl.A.No.100132/2019

view that following points would arise for our

consideration.

1) Whether the judgment of acquittal passed in S.C.No.44/2012 for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC is based on proper appreciation of evidence and as such, it is liable to be sustained?

       2)      What order?

DISCUSSION          AND      FINDINGS      ON    THE    POINTS

FORMULATED ABOVE:


Re.Point No.1


       10.     As   observed    by    us   hereinabove,       the

learned Sessions Judge had charged the accused for

the offences punishable under Sections 489B and

489C r/w Section 34 of IPC. It is based on the charge

sheet material. Learned Sessions Judge has framed

charges on 22.02.2013. Plain reading of the charges Crl.A.No.100132/2019

framed against the accused are that, with an intention

to circulate 75 fake notes of Rs.1,000/- denomination

went to Yellapur on 04.01.2012 and accused No.1

went to the shop of C.Ws.10 and 11 with an intention

to circulating fake notes of Rs.1,000/- denomination.

At that time, the complainant came to the know about

the circulation of notes by the accused and conducted

the raid and has seized 75 fake notes of Rs.1,000/-

denomination from the accused. Thereafter, on

14.01.2012 the complainant came to the police station

and lodged the complaint and on the strength of the

said complaint, a case came to be registered against

the accused in crime No.8/2012 for offences

punishable under Sections 489B and 489C r/w Section

34 of IPC.

11. P.W.1 Dyamanna Harlapur is the

complainant and he has stated that on 14/1/2012

when he was on patrolling duty along with his staff, he Crl.A.No.100132/2019

received credible information that the fake notes are

being circulated and so he went near arrack shop and

found one person going to arrack shop holding

Rs.1000/- note and he purchased on Old Monk

Quarter arrack and gave Rs.1000/- note to the shop

owner and since the shop owner was having no

change so the said person took back said Rs.1000/-

note and thereafter the said person went to panbeeda

shop and there he took two small size cigarette packs

and there also he gave Rs.1000/- note, but there also

he could not get change, so he gave another note and

took back said Rs.1000/- note. He further says that he

suspected the said person and caught hold of him and

on enquiry and checking he found the fake notes and

he also told that the said notes were supplied to him

by one Kumar of Bangalore, He says that thereafter

the said notes as well as quarter old monk bottle and

two cigarette packs were seized and he has also Crl.A.No.100132/2019

seized the mobile hand set and Rs.2500/- which were

original note with the accused and has conducted the

mahazar as per Ex.P.1. He has identified the mahazar

at Ex.P.1 and the complaint at Ex.P.2 and he has also

identified the notes. He says that rough sketch of the

spot has been drawn as per Ex.P.10 and he has taken

photos as per EX.P.3 and 4. In the cross examination

he admits that he has not got it written in the

complaint that the accused had purchased wine in the

shop and then also went to pan shop and purchased

cigarette packet. He further says that the accused did

not try to run away on seeing them. He has denied

that M.Os.1 to 75 are not belonging to the accused.

he also admits during the course of cross examination

by the learned counsel for the accused No.2 that

accused No.2 is not the beneficiary and he did not

receive any information regarding properties given by Crl.A.No.100132/2019

the accused No.2. He has denied that the accused

No.2 has been falsely implicated in the case.

12. Now if we look to the evidence of P.W.2

Parameshwar, he has stated that above 2 1/2 years

back when he was returning to his house and was on

Hubli Karwar main road, at that time the police called

him and took his signature on a paper and he says

that no any mahazar was conducted in his presence

and he only says that there was a carry bag with the

accused and the police took it. He has also sated that

the police did not check the said bag in his presence.

He has identified his signature on the mahazar Ex.P.1

at Ex.P.1(b). He has identified the photographs. He

has been treaded as hostile and in the cross

examination he has denied that the police checked the

items that were in the bag belonging to the accused

and the accused No.1 informed the police that he had

brought fake notes for circulating them. He has denied Crl.A.No.100132/2019

that the police have seized the said notes from the

accused and conducted the mahazar. He has also

denied that the police have also seized on old monk

quarter bottle and gold flake cigarette packets and

also seized original amount of Rs.2,500/- from the

accused. He has denied that even though the articles

were seized in his presence and the police have

conducted the mahazar, but now he s giving false

evidence. In the cross examination by the learned

counsel for the accused No.2, he clearly says that he

does not know the contents of Ex.P.1 and he also says

that h cannot say whether notes which are before the

court at M.Os.1 to 75 are the original notes or fake

notes. He has denied that he had never seen the

accused along with carry bag near Devi ground. So it

is clear from the evidence of this witness that no any

mahazar was conducted in his presence by seizing

fake notes from the accused.

Crl.A.No.100132/2019

13. P.W.3 H.M Khasim has stated that he was

summoned to the house of Ibrahim Khan which is

situated on Mohiddin Street, Madeena colony Bhatkal

and he says that no any fake notes were found in the

said house and he says that no any fake notes were

found in the said house and he says that only two

passports belong to accused No.1 were found and the

police seized them and conducted the mahazar as per

Ex.P.3 and then took the signature. In the cross

examination he says that he does not know in whose

name the house to which they had been belonged and

he says hat some woman folk were in the house at

that time and Ibrahim was not in the house. He has

denied that he was not summoned any where and he

is giving false evidence.

14. P.W.4 Mohammad Sadiq has stated that

about 2-1/2 years back he was called near the house

of accused No.2 and the house was checked and he Crl.A.No.100132/2019

also says that they could not find anything in the said

house. He says that mahazar as per Ex.P.8 was

conducted and his signature has been obtained. This

witness has not been cross examined.

15. P.W.5 Raghavendra Devadiga is the

panshop owner and he has stated that on 14/1/2012

at about 5-30 p.m he had seen the accused Aftab and

he had been to the wine shop which is by the side of

his shop and he purchased one Oldmonk quarter

bottle and he gave Rs.1000/- and the cashier

suspected it and returned the said note to the accused

No.1 and thereafter the accused handed over Rs.50/-

to the Bar owner and went away. He says that after

about 1/2 an hour there was some galata going on

near Devi Ground, so he went there and the accused

was there and he says that he came to know that

there was fake note with the accused and the police

have recorded his statement. In the cross examination Crl.A.No.100132/2019

he says that there is no panchayat number to his pan

shop and he admits that there are many houses by

the side of his pan shop and it is a residential locality.

He says that he did not informed the police that there

were fake notes with the accused. He has denied that

he is giving false evidence.

16. P.W.6 Kamalaksh Mahadev Patgar is the

Manager in Seabird Tourist Corporation, he clearly

says that he does not know the accused who are

before the court. He says that on 13/1/2012 at abut

9-15 pm one parcel was sent through his bus from

Bangalore and it reached Bhatkal bus stand on the

next day and one Ismail had sent the parcel on

14/1/2012 at 7-30 a.m and one Yahya came to take

parcel. He says that the accused never came to

Seabird office at any time and had not taken any

parcel. He says that he did not come to know what

was there in the said parcel. He says that at the time Crl.A.No.100132/2019

of investigation he came to know from the police that

there were fake notes in it. He clearly says that the

police have not recorded his statement. He has been

treated as hostile and even in the cross examination

he has denied that the person appearing in the photo

had come to his office and had taken the parcel and

he has also denied that one Yahya had informed him

to give the said parcel to the Accused Aftab. In the

cross examination by the learned counsel for the

accused he clearly says that he does not know who is

that Yahya and he says that on the basis of the docket

number he had given the parcel. He says that he had

seeing the accused for the first time before the court.

17. P.W.7 Nagendra Gajanan Bhat is the Kirana

shop owner, he says that he knows accused No.1 and

about 2 ½ years back in between 2-3 p.m the accused

had come to his shop and asked cigarette packets and

he gave two cigarette packets and the accused was Crl.A.No.100132/2019

required to pay Rs.80/-, but he gave Rs.1000/- note

and he says that he returned the said note saying that

he has no change and thereafter the accused paid

Rs.80/. in cash and took the cigarette, He says that on

the next day the police had come to his shop along

with the accused and at that time he has identified the

accused. He says that he came to know that the

accused was in the habit of circulating fake notes. In

the cross examination by the learned counsel for the

accused he says that he came to know that the

accused was in the police custody and he had been to

the police station in the morning and at that time he

did not inform the police that the accused had come to

his shop. He says that he has not studied to

distinguish the original and duplicate notes and

according to him since he had no change so he had

returned Rs.1000/- note back to the accused and he

says that he did not give any information to the police Crl.A.No.100132/2019

suspecting the accused. He admits that cigarette

packets like Mo.77 and 78 are easily available in the

market. He has denied that the accused had not come

to his shop and he had not purchased any cigarette

packets from his shop.

18. P.W.8 Praneet Mennon is the Deputy

Manager of RBI, he has stated that on 24/1/2012, five

sealed packets were sent to him for examination and

he checked them and there were 75 notes in it and

they were duplicate notes and he says that slips were

verified and 13 characteristics of notes were

confirmed and he has identified said 75 notes. IN the

cross examination he admits that normal person

cannot distinguish original note and fake note and

people are not aware of it. He admits that he has not

mentioned 13 characteristics of notes in his report. He

has denied that he has not examined any notes and

he is giving false evidence.

Crl.A.No.100132/2019

19. PW.9 Pramod Vithal Naik HC 703 has

stated that on 22/1/2012, his Inspector had given five

sealed packets to him and had asked him to hand over

them to Mysore Printing Press and accordingly he

went there and handed over them and then returned

to the police station and has given report. In the cross

examination he says that he came to know that there

were 75 notes in the said packet from HC Subray.

20. P.W.10 Arun Subraya Naik is the HC 1317

and he has stated that on 23/1/2012 he was asked to

go to Seabird office and bring the post and accordingly

he went to Seabird office and one Kamalesh Patgar

was there and he also obtained information pertaining

to parcel received in the name of Yahya in between

13/1/2012 to 14/1/2012 and he says that the

Manager informed that accused No.1 who is before the

court took away the said courier stating that it

belonged to him. He says that the manager gave Crl.A.No.100132/2019

invoice copy to him. In the cross examination he

admits that there is no name of accused on Ex.P.9 and

he has denied that he had never been to Seabird

office and he is giving false evidence.

21. P.W.11 Gajanan Ganapati Hegde, is the

account clerk and he has stated that accused No.1

was searched in his presence and they found ATM

card, passport, American dollar, Cash Rs.1250/ and

two mobile handsets and the police seized them and

have conducted mahazar as per Ex.P.21 and then took

his signature. He has identified the said mobile

handsets at M.Os.98 and 99 and also cover. He has

also identified mini purse belonging to the accused

No.1, ATM card and an amount of Rs.1250/- which

were seized from accused No.1. In the cross

examination he says that he came to know about

Sayyed Ahammad Mulla on the same day and he was

not previously knowing him and he says that the Crl.A.No.100132/2019

accused was in the custody of police when he went

there. He also says that he did not find any

contraband articles with the accused. He says that he

could not come to know what offence was committed

by the accused on that day. He has denied that no

any panchanama was conducted in his presence and

nothing was seized in his presence and now he is

giving false evidence.

22. P.W.12 Subray Govind Naik, has stated

that on 14/1/2012 he had been along with PSI in the

departmental jeep for patrolling and when they were

on the national highway and were patrolling, at that

time accused No.1 went to the shop and purchased

cigarette packets and handed over Rs.1000/-

denomination note and when shop owner told that he

was not having change, then he gave original note

and there after he went to Raghavendra wine shop

and there also he tried to circulate Rs.1000/- fake Crl.A.No.100132/2019

currency note. He says that thereafter they suspected

the accused and the panchas were secured and the

police seized the duplicate notes and they are marked

at MO.1 to 75. He says that the mahazar as per

Ex.P.1. was conducted in his presence and he has also

stated about drawing of sketch. He says that the

house of the accused was searched and there were

two passports and they were seized and on

examination in the house of the accused they did not

find any incriminating material. He has identified all

the properties. In the cross examination he says that

he was in the police station when they received

information and according to him at the time of

panchanama about 40 to 50 persons had gathered. He

admits that on the basis of the information given by

the first accused they have arrested the second

accused. He has denied that the accused was never Crl.A.No.100132/2019

circulating any fake notes and a false complaint has

been filed.

23. PW.13 Vinayak Mahadev Naik, has stated

that he had accompanied the PSI at the time of

patrolling and they found that the accused was trying

to circulate the fake notes and he has also stated

about seizing of the articles from the accused. In the

cross examination he has denied that the accused was

not apprehended and no any notices were issued in

his presence.

24. P.W.14 Ganesh Bangari Jogalekar is the

Sub Inspector and he has stated that on 14/1/2012

when he was incharge of the police station, the PSI

Harlapur came to the police station and lodged the

written complaint and on the strength of the same he

registered the case in Crime No.8/2012 and sent FIR

to the court and he has also stated that along with the Crl.A.No.100132/2019

complaint accused No.1 was also produced and the

complainant also produced 75 fake notes, one arrack

bottle, two cigarette packets, one plastic pack, one

mobile hand set, two notes of Rs.500 denomination

and 15 notes of Rs.100 denomination and he has

identified the complaint at Ex.P.2 and also properties

at M.O.1 to 97. He has stated that he has seized those

articles and obtained permission of the court and he

has also recorded the statements of CPC Vinayak, CPC

Jayaram, CPC Basavaraj, CPC Jagadish Naik. He says

that thereafter he has handed over further

investigation of the case to Girish Mundgod. He has

identified the accused before the court, in the cross

examination he has denied that without verifying the

complaint he has registered the false case against the

accused and he has stated that the notes were in his

possession till they were sent to FSL. He has denied Crl.A.No.100132/2019

that he had not recorded the statements of any

witnesses

25. P.W.15 B Girish is the Police Inspector, he

has stated that he was incharge of Yellapur police

station during the absence of regular Pl and he says

that he took further investigation of the case from

P.W.14 and also recorded the statement of the

accused and he also obtained accused No.1 to the

police custody and he says that that the accused took

him to his house at Bhatkal and there he seized two

passports which were in the cupboard of the house of

the accused and has conducted the Mahazar as per

Ex.P.5. He has identified the said passports at Ex.P.6

and 7. He says that he went to the house of the

accused No.2 and there also he has conducted the

panchanama, but he says that he did not find any

properties in the house of the accused No.2 and has

conducted the mahazar at Ex.P.8. He also says that Crl.A.No.100132/2019

the accused No.2 was not in the house when he had

been to his house. He has also further stated that he

obtained permission of the court and intimated the

court regarding properties seized. He has stated that

since C.W.24 returned from leave, so he handed over

further investigation to him. In the cross examination

he has denied that he has not recorded the voluntary

statement of the accused and has also denied that he

had not searched the house of the accused No.1. He

has denied that he has not conducted any

investigation and he is giving false evidence.

26. P.W.16 Aravind Narayan Kalguchi is the

Police Inspector and he has stated that from 2011-

2013 he was working as PSI at Yellapur police station

and on 17/1/2012 he took up further investigation of

the case from B Girish and he also enquired accused

No.1 who was in the police custody and also obtained

information regarding the accused No.2 and he says Crl.A.No.100132/2019

that he produced accused No.1 before the court since

police custody expired. He also says that on21/1/2012

he arrested the accused No.2 near Shanbhag hotel

and he searched him in the presence of the panchas

and seized an amount of Rs.1250/- and one purse,

ATM card from him and also seized American dollar,

mobile handsets and he has Identified the said

properties. He says that he has produced accused

No.2 before the court. He identified the accused

before the court. He has also stated that he has

recorded the statements of the witnesses and sent

fake notes to RBI for examination of the notes. He

also says that he deputed Arun Naik CPC for bringing

information from the Seabird parcel office and he has

also stated that accused No.1 and 2 were involved in

similar cases before the District and Sessions Judge at

Haveri and he secured the records pertaining to the

said case. He says that he obtained report from RBI as Crl.A.No.100132/2019

per Ex.P.12 and finally he says that he has filed

charge sheet against the accused. In the cross

examination he says that he is having some

knowledge of the characteristics of the fake notes and

he can identify fake note and original note. He has

stated that if notes are dipped in water then they will

become soft and he says that there will be thread

mark in the original notes and denomination number

will be mentioned towards right side of the note and

he says that some characteristics may be available in

MO.1 to 75 which are fake notes. He also says that he

did not dipped MO.1 to 75 in the water and he says

that he does not know whether RBI authorities have

mentioned the aforesaid characteristics in the report

or not and he also admits that the general public

cannot distinguish between fake notes and original

notes. He says that he is not aware if the accused

have preferred an appeal against the judgment passed Crl.A.No.100132/2019

by the Haveri Court. In the cross examination by the

learned counsel for the accused No.2, he says that he

came to know that accused No.2 was near Shanbhag

hotel and when he tried to arrest accused No.2 he did

not try to run on seeing him and he also says that he

did not find any fake notes with him. He has denied

that accused No.2 was arrested at Pune when he had

been for an eye operation of his mother. He has

denied that both accused are in no way concerned

with the case and a false charge sheet has been filed.

27. Considering the case of the prosecution

witnesses would clearly indicate that P.W.1 in the

cross-examination admits that he has not got it

written in the complaint that the accused had

purchased wine in the shop and then also went to

panshop and purchased cigarette packets. He states

that accused did not try to run away on seeing them.

If really accused possessing fake notes as alleged by Crl.A.No.100132/2019

the prosecution, the accused would flee from the spot.

Saraswati General Stores is on the court road side in

Yellapur. He was standing near Devi ground. The shop

is about 75-100 meters where P.w.1 was standing and

the accused had bought cigarette earlier. He admits

that P.Ws.1 and 2 are the permanent panchas of this

station. From perusal of the evidence of P.W.1, it is

clear that P.W.1 was standing at a distance of 75 to

100 meters and he has not seen that the accused

tendered fake notes of Rs.1,000/- denomination and

he has not mentioned in the complaint that the

accused had purchased wine in the liquor shop and

then went to panshop and purchased a cigarette

packet. There is an improvement in the evidence of

P.W.1. The evidence of P.W.1 is not in consonance

with Ex.P2.

28. P.W.2 is the witness to Ex.P1-mahazar. He

has been treated as hostile and in the cross-

Crl.A.No.100132/2019

examination he has denied that the police checked the

items that were in the bag. The evidence of P.W.2

clearly discloses that no any mahazar was conducted

in his presence by seizing fake notes from the

accused.

29. P.W.3 being the witness to search

panchanama Ex.P5. Ex.P5 discloses the name of the

owner of the house wherein two passports belonging

to accused No.1 were found, but in the cross-

examination he does not know to whom the house

belongs. From reading of deposition of P.W.3, it

creates doubt about the presence of this witness at

the time of search panchanama.

30. P.W.4 has not stated anything about

accused No.1.

31. P.W.5 is the owner of the pan shop. In the

course of cross-examination, he say that there is no Crl.A.No.100132/2019

panchayat number to this pan shop and he admits

that there are many houses by the side of his pan

shop and it is a residential locality. He says that he did

not informed the police that there were fake notes

with the accused. If this witness has suspicion that

accused gave fake note, nothing prevented him to

inform the police. He kept quite till the police came to

record his statement.

32. P.W.6 has stated that police has not

recorded his statement under Section 161 of Cr.P.C.

He turned hostile. He has not supported the case of

the prosecution.

33. P.W.7 is the owner of the kirana shop. In

the course of cross-examination, he admits that he

cannot distinguish original and duplicate notes.

According to him, he had no change, he had returned

Rs.1,000/- note back to the accused. He states that Crl.A.No.100132/2019

he did not give any information to the police

suspecting the accused. He admits that cigarette

packets like M.O.77 and 78 are easily available in the

market. P.W.7 has returned Rs.1,000/- note to the

accused only he had no change, but not returned the

said note on the ground that it is duplicate. If at all

the accused gave alleged note to P.W.7, he could have

informed the police, but he did not informed the

police.

34. P.W.8 is the Deputy Manager of RBI. He

admits in the cross-examination that normal person

cannot distinguish original note and fake note and

people are not aware of it. He admits that he has not

mentioned 13 characteristics of notes in his report.

35. P.W.10 admits in the cross-examination

that name of the accused not found in Ex.P9.

Crl.A.No.100132/2019

36. P.W.11 is the account clerk and he admits

that he did not found any contraband articles with the

accused. He says that he could not come to know

what offence was committed by the accused on that

day. He has not supported the case of the

prosecution.

37. P.W.12 admits that he had accompanied

the PSI in the departmental Jeep for patrolling. But in

the cross-examination he states that he was in the

police station when they received information.

38. P.W.13 also accompanied PSI at the time of

patrolling.

39. P.W.14 is the Sub-Inspector. He seized the

articles and recorded the statements of the CPC

Vinayak, CPC Jayaram, CPC Basavaraj, CPC Jagadish

Naik and handed over further investigation to P.W.15.

Crl.A.No.100132/2019

40. P.W.15 is the Police Inspector. He states

that he took further investigation and recorded the

statement of accused and seized the two passports at

Exs.P6 and 7 and conducted mahazar as per Exs.P5

and P8.

41. In the light of the above prosecution

witnesses and there being no corroborative evidence

and P.Ws.2, 3 and 6 turned hostile and P.W.8 Deputy

Manager of RBI clearly admits that normal person

cannot distinguish original note and duplicate note and

people are not aware of it.

42. For the purpose of reference, Section 489B

and 489C of IPC are extracted hereunder:

"489B. Using as genuine, forged or counterfeit 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 Crl.A.No.100132/2019

[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.

489C. Possession of forged or counterfeit currency- notes or bank-notes.--Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

43. A perusal of the provisions, extracted

above, shows that mens rea of offences under

Sections 489B and 489C is, "knowing or having reason

to believe the currency-notes or bank-notes are

forged or counterfeit". Without the afore-mentioned

mens rea selling, buying or receiving from another

person or otherwise trafficking in or using as genuine

forged or counterfeit currency-notes or bank-notes, is

not enough to constitute offence under Section 489B

of I.P.C. So also possessing or even intending to use Crl.A.No.100132/2019

any forged or counterfeit currency-notes or bank-

notes is not sufficient to make out a case under

Section 489C in the absence of the mens rea, noted

above. No material is brought on record by the

prosecution to show that the appellant had the

requisite mens rea. The Hon'ble Apex Court in the

case of Umashanker vs State Of Chhattisgarh

reported in AIR 2001 SC 3074 held that no

presumption can be drawn that notes found in

possession of the accused were counterfeit notes.

Mere possession of currency notes with the knowledge

that they are counterfeit or fake currency notes is not

sufficient to convict the accused under Section 489C

of IPC. Prosecution is required to prove that accused

were possessing the counterfeit or fake currency notes

with an intention to use the same as genuine or it

may be genuine. No material is produced on record by Crl.A.No.100132/2019

the prosecution to show that accused had requisite

mens rea.

44. It is relevant to refer the judgment of the

Hon'ble Apex Court rendered in the case of Sharad

Birdhi Chand Sarda vs. State of Maharashtra

reported in (1984) 4 SCC 116 wherein at paragraph

163, it is held as under:

"164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820).

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of Crl.A.No.100132/2019

the accused is sought to be established by circumstantial evidence."

(emphasis supplied)

45. The Hon'ble Apex Court in the case of

Umedbhai Jadavbhai vs. State of Gujarat reported

in 1978 SCC (Cri) 108 wherein at paragraph 10 held

as under:

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence."

(emphasis supplied)

46. The Hon'ble Apex Court in the case of

Chandrappa and Others vs. State of Karnataka

reported in (2007) 4 SCC 415 wherein at paragraph

44 it is held as under:

"In our view, if in the light of above circumstances, the trial Court felt that the Crl.A.No.100132/2019

accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."

(emphasis supplied)

47. It is well establish principles of law laid

down by the Hon'ble Apex Court that there is no

embargo on the appellate Court reviewing the

evidence upon which an order of acquittal is based.

Crl.A.No.100132/2019

Generally, the order of acquittal shall not be interfered

with because the presumption of innocence of the

accused is further strengthened by acquittal. The

golden thread which runs through the web of

administration of the justice in criminal cases is that,

if two views are possible on the evidence adduced in

the case, one pointing to the guilt of the accused and

the other to the accused should be adopted from the

conviction of an innocent. The paramount

consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of

justice which may arise from acquittal of the guilty is

no less than from the conviction of an innocent.

30. The trial court on considering the evidence

of prosecution inclusive of defence theory rendered

judgment of acquittal. The finding recorded by the

trial court while acquitting the accused is just and

proper and based on the evidence of prosecution.

Crl.A.No.100132/2019

There is no merit in the appeals which calls for

interference by this court.

31. Considering the law laid down by the

Hon'ble Apex Court in the judgments referred above,

we answer point No.1 in the affirmative and proceed

to pass the following:

ORDER

The appeal preferred by the State under Section 378(1) & (3) of Cr.P.C is dismissed.

The judgment and order of acquittal passed by the Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.44/2012 for the offences punishable under Sections 489B and 489C r/w Section 34 of IPC is confirmed.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-