Basheer vs State Of Kerala
2021 Latest Caselaw 23302 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

  THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943

                         CRL.A NO. 1048 OF 2016

      CRIME NO.379/CR/SI/05 OF CBCID, OCW-1, KOLLAM SUB UNIT

AGAINST THE JUDGMENT IN SC 53/2014 DATED 7.10.2016 OF I ADDITIONAL

                   DISTRICT & SESSIONS COURT, KOLLAM.

 CP 16/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR,

                                 KOLLAM

APPELLANT/ACCUSED:

           BASHEER
           AGED 63 YEARS
           S/O MUHAMMED BEERAN RAWTHER, RESIDING AT MAHESWARI
           MANDIRAM, OPP MOSQUE, PATHANAPURAM TOWN, FROM ANNOOR
           PUTHEN VEEDU, MANCHALLOOR MURI, PATHANAPURAM, KOLLAM
           DISTRICT.

           BY ADV SMT.MAJIDA.S


RESPONDENT/S:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM, KOCHI 682 031.

           BY SRI.SUDHEER GOPALAKRISHNAN GP



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021,
THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING:
 CRL.Appeal No.1048 of 2016            2



                                 JUDGMENT

The appellant herein is the sole accused in

S.C.No.53/2014 on the file of the 1st Additional

Sessions Court, Kollam. As per the judgment dated

7.10.2016 passed therein, the appellant stands

convicted for the offences under Section 489C of

the Indian Penal Code (IPC) and was sentenced to

undergo rigorous imprisonment for four years and

to pay a fine of Rs.5,000/- with a default

sentence of simple imprisonment for six months.

2. The prosecution case in brief is as

follows:

On 6.8.2005 at 10.30 a.m., the accused by

fully knowing that the possession and transaction

of fake note is illegal, kept one counterfeit

currency note of Rs.500 denomination and two

counterfeit currency notes of Rs.100 denomination

in his possession. The offence was detected while

the police party conducted a search in the

provision shop run by the accused at Pathanapuram

market from a hardboard box kept inside the shop

room. Based on the same Crime No.271/2005 was

registered by Pathanapuram Police under Section

489C of IPC. Subsequently, the case was taken over

by Detective Inspector, CBCID, OCW-1, Kollam Sub

Unit and Crime was re-registered as Crime No.379/

CR/SI/05 and after completing the investigation, a

final report was submitted.

3. In support of the prosecution, they have

examined 13 witnesses, marked Exts.P1 to P14 and

identified MOs.1 to 3. After completion of

prosecution evidence, the incriminating materials

brought out during the trial were put to the

appellant/accused while he was examined under

Section 313 of Cr.PC. The appellant denied all

such imputations and pleaded innocence. After

examining the materials produced before the court,

the Sessions Court arrived at the finding as

aforesaid. Being aggrieved by the said conviction

and sentence this appeal is filed.

4. Heard Smt. Majida S., the learned counsel

for the appellant and Sri. Sudheer Gopalakrishnan,

the learned Public Prosecutor for the respondent.

5. The learned counsel for the appellant

contends that there is discrepancy in Ext.P1

search list as the serial number of MO1 currency

note mentioned therein differs from the actual

note seized. According to the learned counsel, the

same creates a shadow of doubt as to the

prosecution case. It is also contended that, the

prosecution failed in proving the seizure of MO1

and MO2 series currency notes from the shop of the

petitioner. The learned counsel for the petitioner

refers to Ext.P10 license issued by the Panchayat

wherein the room number of the shop of the

appellant is shown as 27. However, the room number

of the appellant's shop is mentioned in Ext.P1

search list as 21. It is further contended that,

even if it is assumed for the argument that, the

appellant was in possession of MO1 and MO2 series

counterfeit currency notes, that by itself would

not attract the offence under Section 489C of IPC.

In order to establish the same, the prosecution

has to further prove that the possession of the

same by the appellant was a conscious possession

by knowing that the notes in his possession was

counterfeit. By relying upon the evidence of PW5,

it was pointed out that the police officer who was

a party to the search, could not specify the

difference between the actual note and the

counterfeit currency notes allegedly seized. It

was further pointed out that, unless it is shown

that the counterfeit notes were of such a nature

of description that a mere look at them would

convince an average man that it was a counterfeit,

it cannot be concluded that the possession of such

counterfeit was a conscious possession, in the

absence of specific evidence leading to such

conclusion. The learned counsel relies on the

decision on M. Mamutti v. State of Karnataka [AIR

1979 SC 1705], Sukumaran P.O. @ Kunhukunhu v. S.I.

of Police Ambalavayal and Anr. [2016(4) KHC 660],

Anthru @ Abdurahiman v. State of Kerala

[2020(4)KHC 469] and Umashanker v. State of

Chhattisgarh [2001(3) KLT 681].

6. On the other hand, the learned Public

Prosecutor would contend that the prosecution was

successful in establishing the ingredients of the

offence alleged against the appellant. It is

pointed out that, even though there is some

discrepancy in Ext.P10 as to the door number of

the shop of the appellant, the same cannot be

treated as fatal to the prosecution. It was

pointed out that, the witnesses have clearly

identified the shop room of the appellant and

hence even if there is difference in the room

number mentioned in Ext.P10, that by itself would

not affect the prosecution case. It was further

contended that, while conducting the search as

evidenced by Ext.P1, the counterfeit currency was

found kept separately from the cash box which was

kept by the appellant in his shop and this

indicates the conscious possession on his part. In

such circumstances, he prays for dismissal of the

appeal.

7. The first contention that is raised by the

appellant is with regard to the discrepancy in the

serial number of MO1 currency note mentioned in

Ext.P1. On going through the same, it is seen

that, in the column of description of articles

found during search, the number of MO1 currency

note was shown as BR300944 which is a currency

note of Rs.500 denomination. It is evident that

MO1 was actually numbered as BR300946. However,

I am of the view that, this is not a fatal

discrepancy affecting the prosecution. This

is because, even though the serial number

was wrongly mentioned in the column for

description of articles, in the column for

remarks, the number was clearly mentioned as

BR300946. PW6 who conducted the search and seizure

has clarified that it was a mistake occurred while

preparing Ext.P1 search list. The other documents

also clearly indicate that the counterfeit

currency of rupees 500 denomination was bearing

number 300946. In such circumstances, I do not

find any merit in the contention put forward by

the learned counsel for the appellant in this

regard.

8. The next aspect is relating to the

identity of the shop room of the appellant. It is

true that in Ext.P1 search list, the room number

of the appellant is mentioned as 21, whereas in

Ext.P10 license, which was produced to prove the

possession of the appellant over the building, the

number is mentioned as room No.27. However, in the

facts and circumstances of the case, I am of view

that, that by itself is not a ground to discard

the prosecution case. This is particularly because

Ext.P10, which was proved through PW2, is seen

issued for the year 2009-2010, whereas the

incident in this case occurred on 6.8.2005. The

room number assigned by the Local Self Government

Institution, can be subjected to change during the

course of time and it is not static. Now coming

back to the question of identity of the shop room

of the appellant, there is ample evidence to

establish the same. PW1 is the witness who was

examined to prove the attestation of Ext.P1

mahazar. Even though he turned hostile to the

prosecution, he had categorically deposed that,

the shop of the appellant is just in front of his

shop room. It was also stated by him that, the

shop room of the appellant is situated in between

the shop room of PW4 and PW7. He also stated to

have seen a gathering of people when police came

to the premises of the shop of the appellant on

that particular date. PW4 clearly stated in his

examination that, his shop room is adjacent to the

shop room of the appellant and on the other side

of the shop room of the appellant, PW7's fruit

shop is situated. The aforesaid aspect is clearly

proved by the evidence of PW7 who acknowledges the

above facts in clear terms. The evidence of PW3

also gives an indication to the location and

identity of the shop room of the appellant in

clear terms. It is true that, PWs.1,3,4 and 7 were

declared hostile to the prosecution. However,

merely because of the reason that they have turned

hostile, their entire evidence need not be

discarded. It is a well settled proposition of law

that, even in such circumstances, the evidence of

such hostile witnesses to the extent it supports

the case of prosecution can be taken into account

and relied upon by the court. Therefore, nothing

precludes this Court from considering this issue

by relying upon the evidence of the said

witnesses. From a careful examination of the said

evidence, it can be safely concluded that the

materials produced by the prosecution clearly

indicate the exact location and identity of the

shop of the appellant, without any doubt. In such

circumstances, the discrepancy contained in

Ext.P10 cannot be treated as something fatal to

the prosecution.

9. The next contention is with regard to the

conscious possession of the appellant. Section

489C of IPC reads as follows:

"Section 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."

As per the said provision, the accused must be in

possession of any forged or counterfeit currency

note by knowing or having reason to believe that

the same is forged or counterfeit. In this case,

the crucial question that arises is that, even if

the possession of MO1 & MO2 series of currency

notes were proved by the prosecution, whether the

materials available on record establishes a case

of knowledge of the appellant that the aforesaid

currency notes were forged or counterfeit notes.

The legal position in this regard is settled in

M.Mamutti's case (supra). It was observed by the

Hon'ble Supreme Court as follows:

"There is no evidence of 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 a counterfeit note. Nor was any such question put to the accused under S.342 CrPC. The High Court has affirmed the judgment of the learned Sessions Judge of 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 had 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 Ex. P13 which appears at p. 154 of the paper book, the appellant has struk 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 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."

In Anthru @ Abdurahiman's case (supra), it was observed as follows:

"18. Therefore, it is a settled position that if there is no evidence of 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, there cannot be any conviction under S.489B or 489C of IPC. In this case, also there is no evidence of 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 a counterfeit notes. Therefore, based on the Apex Court judgment also, it can be found that there is no knowledge to the appellant that MO2 and MO3 are counterfeit notes when he handed over the same to PW6.

Same point was considered by this Court in Gafoor v. State of Kerala[1987 KHC 564 : 1987 (2) KLT 730]. In this judgment, this Court held that mere possession or use of counterfeit currency notes is not punishable. This Court found that the accused must have knowledge or reason to believe that the notes were counterfeit or forged. The same view was taken by this Court in Abdul Rahiman v. State of Kerala [2014 KHC 773 : 2014 (4) KLJ 772 : 2015 (1) KLD 13 : ILR 2015 (1) Ker. 641 : 2015 (1) KLT SN 168] and in Sukumaran P.O @ Kunhukunhu v. SI of Police, Ambalavayal and another[2016 (4) KHC 660 : 2016 (2) KLD 929 : 2016 (3) KLJ 835 : 2016 (4) KLT SN 38 : 2016 (4) KLT 613]. In the light of the above authoritative judgments of the Apex Court and this Court, it is clear that the 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 under S.489B or 489C of Cr.P.C.".

In Sukumaran P.O. @ Kunhukunhu's case (supra) also

this Court has taken the very same view.

10. Thus from the legal propositions laid

down by the Hon'ble Supreme Court as well as this

Court in the aforesaid decisions, it is evident

that in addition to the possession of counterfeit

notes, the prosecution also has an obligation to

show that such possession was with the knowledge

of its nature of falsity. If the notes seized were

of such a nature that a mere look at them would

convince a prudent man that they were fake notes,

it would be possible to presume that the accused

had the knowledge or reason to believe that those

are counterfeit coins. In this case, none of the

witnesses have stated about the said fact. On the

other hand, during cross examination, PW5, the

civil police officer who accompanied PW6 for

conducting the search and seizure, could not

mention the distinguishing features of the notes

seized, with that of the original currency. It was

stated by him that, it could be possible only

through examination of an expert. It is evident

from the materials that, the notes were identified

to be fake by the inspection team initially on the

basis of the fact that the serial numbers of MO2

series of notes were same. Under normal

circumstances, no person dealing with currency

would give attention to the serial number of the

currency note. It is also a fact that the total

number of currency notes found in the possession

of the petitioner is just three. Admittedly, he

was conducting a shop where day-to-day

transactions are being carried out. The total

value of the notes comes to Rs.700/- only. The

chances that the aforesaid counterfeit currency

notes coming to his possession during the course

of his normal business, cannot be ruled out.

11. The learned Public Prosecutor would point

out at this juncture that, the counterfeit

currency seized from the appellant were kept in a

separate hardboard box and it was not detected

from the drawer where he used to keep the cash.

However, in my view, that by itself is not a

ground to arrive at the conclusion that it was a

conscious possession. This is particularly

because, PW13,another police officer who

accompanied PW6 and participated in the search and

seizure has stated that the hardboard which

contain the counterfeit currency notes were kept

above the drawer where the other currency notes

were kept by the appellant. The contents of Ext.P1

search list also indicates that the hardboard box

was found near to the drawer where the cash was

kept. In such circumstances, merely because of the

fact that these notes were found in a separate

box, it cannot be concluded that the prosecution

has established his conscious possession beyond

reasonable doubt. It is also to be noted in this

regard that, an attempt was made by the

prosecution through PW7, the neigbouring shop

owner, to show that some months before the

incident, a person came to his shop and handed

over a fake 100 rupee note while purchasing some

items. However, after realising that it was fake

note, he returned the same to the said person and

got it replaced with another note. Even though PW7

has reportedly given a statement before the police

to the effect that the person who handed over the

fake 100 rupee note to him informed that the said

note was obtained from the shop of the appellant,

the version of PW7 during his examination is

otherwise. He specifically denied the suggestion

put to him by the prosecution that the said person

informed him that the said fake note was received

by him from the shop of the appellant. The

prosecution could not provide any materials to

prove the same. In such circumstances, I am of the

view that the prosecution failed to prove the

conscious possession of the petitioner beyond

reasonable doubt. As mentioned above, the chances

of these notes coming in his possession during the

course of regular transactions in his shop cannot

be ruled out. Section 489C of IPC does not

contemplate for a punishment merely because of the

reason that the accused is in possession of

counterfeit notes but on the other hand, it should

be proved that such possession was with the

knowledge about the fakeness of the currency

notes. Thus on examining the totality of the facts

and circumstances of this case, I am of the view

that the conviction and sentence imposed by the

Sessions Court in this case is to be set aside.

Accordingly, this appeal is allowed. The

conviction and sentence imposed upon the appellant

by the 1st Additional District & Sessions Court,

Kollam as per the judgment in S.C.No.53/2014 dated

7.10.2016 are set aside.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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