P.Shafi vs State Of Kerala
2021 Latest Caselaw 8294 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

      THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

  FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                   CRL.A.No.1398 OF 2006

  AGAINST THE JUDGMENT IN SC 533/2004 DATED 17-07-2006 OF
                 SESSIONS COURT,KASARAGOD

AGAINST THE ORDER/JUDGMENT IN CP 1/2004 DATED 13-01-2004 OF
      JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG

APPELLANT/ACCUSED NO.1:

            P.SHAFI,
            AGED 33 YEARS
            S/O.MUHAMMED, C.H.NAGAR,, NEAR CRESENT SCHOOL,
            PALLIKARA,, NILESWARAM, KASARAGOD DISTRICT.

            BY ADV. SRI.JAWAHAR JOSE

RESPONDENTS/COMPLAINANTS:

      1     STATE OF KERALA,
            REP. BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

      2     STATION HOUSE OFFICER
            NILESWARAM POLICE STATION.

            R1 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-
03-2021, THE COURT ON 12-03-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.1398/2006

                                  -:2:-




                          JUDGMENT

Dated this the 12th day of March, 2021

This is an appeal filed by the first accused in SC No.

533/2004 on the file of Court of Session, Kasaragod. He stands

convicted and sentenced for committing offence punishable u/s

489-B of Indian Penal Code (for short I.P.C.).

2. The prosecution case in short is that on 11/8/1999 at

6.00 p.m., PW1, Sub Inspector of police, Nileshwar, got a secret

information and the same was recorded in the General Diary.

Based on the same, he along with the police party proceeded to

Sree Krishna Lottery Stall situated near Nileshwaram bus stand.

PW2, salesman at Sree Krishna Lottery Stall, pointed out the

appellant/accused No.1 to PW1. They took the appellant to a

nearby police check post and on search by PW1 on the body of

the appellant, seized 4 counterfeit currency notes of

denomination of `100/-. On questioning the appellant, he told him

that those currency notes were given by the 2 nd accused. PW1, Crl.Appeal No.1398/2006

then, arrested the appellant as per an arrest memo marked as

Ext.P1. Thereafter, PW1 lodged the FIR, marked as Ext.P3. The

appellant/accused was produced before the Court on the next day

and he was remanded to judicial custody. On the basis of the said

allegations, the prosecution was lodged against the appellant as

well as the 2nd accused.

3. On receipt of summons, the appellant as well as 2 nd

accused appeared before the Court below. After hearing both

sides, the charge was framed against the appellant and the 2 nd

accused for the offence punishable u/s 489-B r/w 34 of I.P.C. The

charge was then read over and explained to both accused who

pleaded not guilty.

4. The prosecution examined PWs 1 to 4 and marked

Exts.P1 to P5. MOs 1 to 4 were identified. The accused were

questioned u/s 313 of Cr.P.C. They denied all the incriminating

circumstances brought against them during the evidence. They

submitted that they are innocent. No defence evidence was

adduced. Considering the evidence on record, the Court below

found the appellant/1st accused guilty u/s 489-B of I.P.C. The Crl.Appeal No.1398/2006

appellant/1st accused was convicted and sentenced to undergo

rigorous imprisonment for 5 years and to pay a fine of `5,000/-, in

default to suffer simple imprisonment for one year u/s 489-B of

I.P.C. The 2nd accused was found not guilty and he was acquitted.

Aggrieved by the said conviction and sentence, the appellant/1 st

accused preferred this appeal.

5. Heard the learned counsel for the appellant as well as

the learned Public Prosecutor.

6. The learned counsel appearing for the appellant

impeached the findings of the Court below on appreciation of

evidence and resultant finding as to guilt. The counsel submitted

that there are much contradictions with respect to the oral

testimony of PW1 as compared to the evidence of PWs 2 and 3.

The learned counsel further submitted that Ext.P5 expert report

has not been legally proved by the prosecution. It was argued

that the conclusion of the Court below leading to the conviction of

the accused u/s 489B is contrary to law and the reason stated by

the Court below to hand down such order of conviction is

unsustainable. The counsel added that, at any rate, the sentence Crl.Appeal No.1398/2006

awarded is excessive. The learned Prosecutor supported the

findings and verdict handed down by the Court below and argued

that necessary ingredients of S.489-B had been established and

the prosecution has succeeded in proving the charge beyond

reasonable doubt.

7. The prosecution relied on the oral testimony of PWs 1

to 4 to prove its case and to fix the culpability on the accused.

PW1 is the detecting officer. PW2 and 3 are independent

witnesses who witnessed the seizure and PW4 is the investigation

officer. PW1 deposed that on 11/3/1999, while he was in the

police station at 6.00 p.m, he received a secret information. The

same was recorded in G.D. and based on the same, he along with

the police party proceeded to Sree Krishna Lottery Stall situated

near Nileshwar bus stand. PW2, the salesman at the lottery stall,

pointed out the appellant and they intercepted him and took him

to the nearby police check post. In the presence of the witnesses,

he searched the body of the appellant and found 4 currency

notes denomination of `100/- each from his shirt pocket. PW1

deposed that he examined those notes meticulously and Crl.Appeal No.1398/2006

convinced that those were fake notes. Then he arrested the

appellant under Ext.P1 arrest memo. As to the seizure of 4

currency notes, he prepared Ext.P2 mahazar in the presence of

witnesses. He identified MOs 1 to 4 as currency notes seized

from the appellant. PW2 deposed that on 11/3/1999 at about 6.00

p.m., one person came to his lottery stall to purchase lottery

ticket. He purchased two Jai Mathrubhumi lottery tickets costing

`5/- each and he gave a currency note of denomination `100/-. He

doubted its genuineness. Hence he gave back the currency note

to that person and intimated the matter to the police over phone.

PW1 and police party came there. He pointed out that person to

the police. He identified the appellant before the Court. He

further deposed that the currency note of denomination of `100/-

given by the appellant on the date of incident was like that of

MO1 to MO4. PW3 is the owner of Sree Krishna Lottery Stall. He

gave evidence that during the period of occurrence, PW2 was the

salesman in his lottery stall. The police seized fake notes from

the appellant in his presence. He signed in Ext.P1 arrest memo as

a witness. In Ext.P2 seizure memo also, he stood as a witness. He Crl.Appeal No.1398/2006

also identified the appellant as the person from whom fake notes

were seized by the police. PW4 is the successor of CW9 who

conducted investigation at the first instance. CW9 is no more.

8. On the basis of the testimony of PWs 1 to 3, search

and seizure were proved to the satisfaction of the Court below.

The Court below rightly acted upon such evidence. PW1 gave

details about getting source of information, the search and

recovery of counterfeit notes and attended factors. He stated that

he received information from a secret source. Corroborating

materials in the form of testimony of the policemen are

trustworthy. The learned counsel for the appellant highlighted

few contradictions in the evidence of PWs1 to PW3. PW1

deposed that the appellant possessed only 4 counterfeit notes

and those were seized from the pocket of his shirt. On the other

hand, PW2 deposed that the appellant possessed nearly 10

currency notes and the police recovered the currency notes from

the pockets of his pant. PW3 deposed that the appellant

possessed 6 to 7 currency notes and many other currency notes

in the pocket of his pant and the police recovered the currency Crl.Appeal No.1398/2006

notes from the pocket of his pant. These contradictions are not at

all significant and not fatal to the prosecution case. The Supreme

Court in State of Uttar Pradesh v. Naresh and Others

[(2011) 4 SCC 324] has held that minor contradictions,

inconsistencies, embellishments or improvements are not fatal to

the prosecution and that normal discrepancies are bound to occur

due to normal errors of observations, errors of memory due to

lapse of time etc., and marginal variations cannot be termed as

improvements. The occurrence was on 11/3/1999. The witnesses

were examined on 16/6/2006, after 7 years. Therefore, such

discrepancies are bound to occur. In all material particulars, they

have deposed truly and clearly. Having gone through the oral

evidence, I do not see any material contradiction among any of

the witnesses in relation to the information, search and recovery

of counterfeit notes.

9. The material evidence on record in the form of oral

testimony regarding search and seizure and documentary

evidence as well as the recovered articles are proved through

cogent evidence. They correlate and connect the material Crl.Appeal No.1398/2006

particulars regarding the commission of the crimes charged. The

seizure was followed by appropriate preservation, labelling,

sealing and other due processes which enabled the recovered

articles being preserved tamper proof and made available for

examination by the expert. Such examination led to Ext.P5 report

of the expert, which has been admitted in evidence and its

contents were believed and acted upon, on due examination by

the Court below. As per the report of the expert, the referred

currency notes were found to be counterfeit notes. The learned

counsel for the appellant argued that Ext.P5 had not been legally

proved by the prosecution. I cannot subscribe to the said

argument. Ext.P5 is the report of examination of the counterfeit

currency notes by the Government of India, Bank Note press.

This is admissible u/s 292 Cr.P.C without examining the expert.

This report refers to the counterfeit currency notes seized by PW1

as per mahazar. The report shows that on examination at the

Bank Note Press, the notes received were identified as counterfeit

notes. It is pertinent to note that the genuineness of Ext.P5

report stands not challenged. There is no reason to denounce the Crl.Appeal No.1398/2006

evidentiary value of the expert's report. Insofar as the material

witnesses are concerned, there is adequate corroboration and

there is no contradiction worthy enough to dislodge the credibility

of the testimony of the witnesses. Not only that, the police

officials who were involved in the process are not shown to have

any particular interest, hostile to the accused persons. I do not

find any legal infirmity or error in the appreciation of the evidence

by the Court below in that regard.

10. The learned counsel for the appellant argued that even

if the seizure stands proved, the prosecution failed to establish

that the appellant had received or possessed the currency notes

and used the same as genuine with the knowledge that it was

forged or counterfeit notes. The counsel added that mere

possession of the counterfeit notes is not sufficient to attract

S.489B of I.P.C. and the prosecution has to further prove that

possession was with reasonable belief and knowledge, which they

miserably failed. The learned counsel has cited a decision of the

Supreme Court in Umashanker v. State of Chhattisgarh

[(2001) 9 SCC 642] in support of his argument.

Crl.Appeal No.1398/2006

11. It is true that to attract the offence u/s 489-B, mere

possession of the counterfeit note is not enough. There must be

evidence to show that the accused sells or buys, or receives from

any other person or otherwise traffics in or use as genuine, any

forged or counterfeit note or bank note, knowing or having reason

to believe that same to be forged or counterfeit. Adverting to the

material evidence on record and the findings of the Court below,

it can be seen that the interception, search and recovery were on

the basis of secret information. On questioning the appellant at

the spot, he stated that the counterfeit notes were given to him

by the 2nd accused. However, the appellant did not offer any

explanation when questioned u/s 313 of Cr.P.C. regarding the

possession of counterfeit notes nor did he adduce any evidence

in defence to explain the possession of counterfeit notes. He did

not explain his relationship with the 2nd accused. He also did not

explain for what purpose and under what circumstances the

notes were handed over to him by the 2nd accused. S.106 of the

Evidence Act enjoins that when any fact is especially within the

knowledge of any person, the burden of proving the fact is upon Crl.Appeal No.1398/2006

him. In terms of S.106 of the Evidence Act, the burden of proof of

acts within the knowledge of the appellant regarding the nature

of possession of counterfeit notes was not discharged. That

apart, the Court below perused MO1 to MO4 and satisfied that a

mere look at those notes would convince anybody that they were

fake notes. From these facts and circumstances, it can be inferred

that the appellant knew that MO1 to MO4 in his possession were

counterfeit notes and he made an attempt to sell one of those

notes to PW2. For these reasons, the conviction of the appellant

stands and accordingly I affirm the finding of guilt and the

conviction of the appellant by the Court below.

12. The next question is regarding sentence. The Court

below has imposed rigorous imprisonment for 5 years and to pay

a fine of `5,000/- in default to suffer simple imprisonment for one

year. The learned counsel for the appellant submitted that

sentence imposed is excessive. No previous conviction is

reported against the appellant. The detention was in the year

1999. 22 years have been elapsed since the date of detention.

On consideration of various aspects, I am of the view that Crl.Appeal No.1398/2006

substantive sentence imposed by the Court below can be reduced

to rigorous imprisonment for three years.

In the result, the appeal is allowed in part. The conviction

against the appellant u/s 489-B of I.P.C. is confirmed. However,

the substantive sentence imposed by the Court below u/s 489-B

of the I.P.C. will stand modified and reduced to rigorous

imprisonment for 3 years. The fine imposed by the Court below is

maintained, with default sentence thereof. The appellant shall

surrender before the Court below within four weeks from this date

to suffer the modified sentence, and to make payment of the fine

amount, failing which, steps shall be taken by the court below to

enforce the modified sentence and to realise the amount of fine,

or enforce the default sentence.

Sd/-

                                      DR. KAUSER EDAPPAGATH

Rp                                            JUDGE