Malayilthodi Ahammed,S/O. ... vs State Of Kerala
2021 Latest Caselaw 18849 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                        CRL.A NO. 2025 OF 2005
  AGAINST THE JUDGMENT IN SC 522/2003 OF ADDITIONAL SESSIONS COURT
                    (ADHOC)-II, MANJERI, MALAPPURAM
APPELLANT/ACCUSED NOS.2, 3 AND 5:

     1     MALAYILTHODI AHAMMED,S/O. MOIDEEN,
           LAKSHAM VEEDU, ELAYUR, MALAPPURAM DISTRICT.

     2     VALIYAPEEDIYEKKAL SHAREEF,
           S/O. ABDU RAHIMAN, PULPATTA, MALAPPURAM DISTRICT.

     3     THORAKKATTIL MUHAMMEDALI, S/O. ABU,
           KAMBALAKALLU, VAZHIKKADAVU, MALAPPURAM DISTRICT.

           BY ADV SRI.BABU S. NAIR



RESPONDENT/STATE:

           STATE OF KERALA,
           REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE,
           C.B.C.I.D., KOZHIKODE - THROUGH PUBLIC PROSECUTOR,, HIGH
           COURT OF KERALA, ERNAKULAM, KOCHI-31.

           BY ADV PUBLIC PROSECUTOR



           SRI SANGEETH RAJ, PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2025 OF 2005                 2



                                  JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellants by the Additional District and Sessions court

(Adhoc) No.II, Manjeri, for an offence under Section 489C of the Indian

Penal Code.

2. The prosecution case is that on 13.02.2001, the appellants who are

accused Nos.2, 3 and 5, together with accused Nos.1 and 4, were found in

possession of counterfeit currency notice similar to Rs.500/- and Rs.100/-

Indian currency notes near Mongam Sub post office and that they had

attempted to use those currency notes and thereby committed the offences

under Sections 489B and 489C r/w. Section 34 of the Indian Penal Code.

3. Following investigation, a final charge was laid against the accused

alleging commission of offences under Section 489B and 489C r/w. Section

34 of the Indian Penal Code before the Judicial First Class Magistrate Court,

Malappuram. The same was committed to the Court of Sessions. The

Sessions court, Manjeri took cognizance of the offences and the case was

finally made over to the Additional Sessions Court (Adhoc) No.II, Manjeri for

trial and disposal. Charges were framed under Section 489B and 489C of the

Indian Penal Code. The trial proceeded against the present appellants, who

are accused Nos.2, 3 and 5 as accused Nos.1 and 3 were absconding.

4. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P8

documents and the material objects were marked and identified as MOs 1 to

5. Following closure of the prosecution evidence, the accused were

questioned under Section 313 Cr.P.C. They denied all incriminating

materials and statements against them. Finding no reason to acquit the

appellants/accused under Section 232 of the Cr.P.C, they were called upon to

enter on their defence side. No defence evidence was let in.

5. On an appreciation of the evidence tendered by the prosecution, the

trial court came to the conclusion that appellants/accused had committed

the offence under Section 489C of the Indian Penal Code and convicted them

to undergo rigorous imprisonment for a period of three and a half years for

the offence under Section 489C of the Indian Penal Code.

6. PW1 is the Sub Inspector of Police who detected the offence. PW2 is

the police constable who was on duty along with PW1. PW1 has tendered

evidence regarding the receipt of information, the apprehension of the

appellants/accused together with others and regarding the seizure of

counterfeit notes and marked Ext.P1 mahazar prepared by him. PW2, the

police constable has supported the version of Pw1 in every material aspect.

PW1 has also identified the notes seized from the accused (MOs 1 to 5).

7. PW3, an independent witness, though affirmed that he had seen the

accused detained by the police together with the notes in question, stated that

he had not actually seen the notes being taken from the possession of the

accused. However, he identified his signature in Ext.P1 seizure mahazar.

PW4 has also identified his signature on Ext.P6 scene mahazar. PW6 has

tendered evidence regarding the investigation conducted in the case and has

identified the forwarding note and the analysis report.

8. With reference to the evidence tendered by PW6, it is the contention

of the learned counsel appearing for the appellants/accused Nos.2, 3 and 5

that, though there was some indications that that accused persons were in the

spot in connection with a football match, nobody in connection with the

football match was examined and this is a serious flaw in the prosecution

case. He also submitted that independent witnesses had not supported the

prosecution case. It is also his case that there is a defect in the seizure and

forwarding of the counterfeit currency notes for analysis. He submits that

the identity of the notes forwarded for analysis, had not been established as

the notes seized from the accused and thus prosecution must fail.

9. I have considered the submissions. The evidence of PWs 1, 2 and 6

fairly and reasonably and beyond reasonable doubt establishes that the

appellants/accused Nos.2, 3 and 5 were apprehended on 13.02.2001 with

fake currency notes. It is not as if the appellants/accused Nos.2, 3 and 5 had

any credible explanation for being in possession of the counterfeit currency

notes in question. No evidence was let in to show as to how they came into

the possession of the said fake currency notes. All the notes were sent for

analysis. Therefore the question of identity does not arise for consideration.

The facts of the case also show that notes were not few in number, but there

was a fairly large quantity of notes recovered from accused Nos.2, 3 and 5.

The independent witnesses have identified their signatures on Exts.P1 and

P6. The cross examination of the official witnesses has not in any manner

demolished the prosecution case. PW6 who conducted investigation has

marked the forwarding note through which the counterfeit currency was

forwarded for analysis and also Ext.P8 analysis report which shows that the

counterfeit currency notes in question were not genuine Indian currency

notes. I must note that though appellants/accused Nos.2, 3 and 5 were

charged under Section 489B and 489C r/w. Section 34 IPC, the conviction is

only under Section 489C IPC. There is overwhelming evidence to show that

the appellants/accused Nos.2, 3 and 5 were in possession of the fake currency

notes and therefore, the appellants/accused Nos.2, 3 and 5 were rightly

convicted for the offence under Section 489C IPC.

10. Though the learned counsel appearing for the appellants argued

with reference to the judgment of this Court in Abdul Rahiman V. State

of Kerala [2015(1) KLT SN 139] that, mere possession of counterfeit

currency notes will not constitute an offence under Section 489C IPC, I am of

the view that very same judgment is authority for the proposition that where

the accused in a case alleging commission of offence under Section 489C IPC

is unable to give any satisfactory explanation for the possession of counterfeit

currency notes, an offence under Section 489C IPC is made out. I have

indicated in an earlier part of this judgment that the appellants/accused

Nos.2, 3 and 5 had not let in any evidence which would suggest that they had

innocently come into the possession of the counterfeit currency notes. For

this reason also, conviction of the appellants/accused Nos.2, 3 and 5 for

offence under Section 489C of the Indian Penal Code is justified.

11. Learned counsel appearing for the appellants/accused then submits

that this Court in Muhammed Koya V. State of Kerala [2020 (3) KLT

441] has taken the view that in a case where Section 489C of the IPC alone is

involved and where a substantial period of time has expired since the

incident, the Court may consider modifying the sentence from one of

imprisonment to one of fine. In Muhammed Koya (supra), it was held as

follows:-

''Now regarding the sentence to be imposed on the 1st appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 is to be decided. The trial court imposed rigorous imprisonment for 3 years under Section 489C to them. In this case, the offence under Section 489 C is a lesser offence when considered to the offence under Section 489B IPC. Section 489C is a bailable offence. Section 489C IPC deals the possession of counterfeit note. No previous conviction is reported against these appellants. Moreover, the offence alleged to be committed in this case was on 05.06.1998. Now 22 years elapsed. At this distance of time, the appellants need not be sent to jail again. Moreover, the substantive sentence of imprisonment is not mandatory as per Section 489C IPC. In the last paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koaya is entitled to set off for the period from 5.6.1998 to 14.7.1998 and the accused Prasad is entitled to set off from 5.6.1998 to 12.7.1998. Since they already underwent imprisonment for some period, I think, that is enough. In addition to that a fine also can be imposed. Hence, the 1st appellant in Crl.Appeal No.225 of 2008 and

the appellant in Crl.Appeal No.211 of 2008 are directed to undergo Rigorous Imprisonment for one month each and to pay a fine of Rs.50,000/- each under Section 489C IPC. In default of payment of fine, appellants will undergo simple imprisonment for a period of three months. Appellants are entitled set off for the period they already undergone.''

12. Taking note of the view taken by this Court as above in

Muhammed Koaya (supra), and taking note of the fact that the incident

in this case also took place in the year 2001 and also considering the fact that

accused No.2 was in custody from 13.02.2001 to 06.06.2001 and accused

Nos.3 and 5 were in custody from 13.02.2001 to 18.05.2001, the sentence

imposed under Section 489C is modified as sentence for the period already

undergone. The appellants/accused are also sentenced to a fine of

Rs.50,000/-(Rupees fifty thousand only) each. In default of payment of fine

within one month from 01.10.2021, the appellants shall undergo rigorous

imprisonment for a period of three months.

The Crl. Appeal is accordingly, allowed in-part, confirming the

conviction but modifying the sentence in the manner indicated above.

Sd/-

GOPINATH P.

JUDGE ajt