Rajan, S/O. Chami vs State Of Kerala
2021 Latest Caselaw 19208 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
                          CRL.A NO. 373 OF 2006

AGAINST THE JUDGMENT IN S.C.NO.61/2000 DATED 24.03.2003 PASSED BY THE
COURT OF SESSIONS JUDGE, KOZHIKODE.
APPELLANT/ACCUSED NO.1:

           RAJAN, S/O. CHAMI,
           PARACHALIL HOUSE,
           VILLUMPARA, AMBEDKAR COLONY,
           MARUTHOMKARA, KOZHIKODE.

           BY ADV SRI.SUNNY MATHEW


RESPONDENT/COMPLAINANT:

           THE STATE OF KERALA THROUGH THE DEPUTY SUPERINTENDENT
           OF POLICE, CRIME BRANCH,, C.I.D. (C.F.S), KOZHIKODE,
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM

           SRI SANGEETH RAJ, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 373 OF 2006
                                    -2-

                              JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/1st accused in S.C.No.61 of 2000 on the file of

the learned Sessions Judge, Kozhikode in a prosecution under Sections

489(B) and 489(C) of the Indian Penal Code.

2. The gist of the prosecution case against the appellant/1 st

accused is that PW1, the Sub Inspector of Police and PW2, the Head

Constable of Police while on patrol duty received information that the

appellant/1st accused was in possession of counterfeit currency notes and

that it is kept in the house of the 1 st accused/appellant in Villumpara

Ambedkar Colony in Maruthomkara amsom and desom. Accordingly, they

prepared a search memo and forwarded the same to the jurisdictional

court and proceeded to search the house of the 1 st accused. The search was

conducted in the presence of two independent witnesses (PWs 3 and 4).

The 1st accused pointed out the place where the currency notes had been

kept and the same were seized and the 1st accused was arrested. It is also

alleged that the 1st accused had attempted to use fake currency notes to

purchase arrack from the arrack shop where PW6 was the salesman and in

the presence of PW7, one Bhaskaran. Following investigation of the case, a CRL.A NO. 373 OF 2006

final report was filed before the Judicial First Class Magistrate Court,

Nadapuram which was committed to the Sessions Court for trial. Charges

were framed under Sections 489(B) and 489(C) of the Indian Penal Code.

The accused pleaded not guilty. The prosecution examined PWs1 to 22 and

marked Exts.P1 to P27 documents and identified and marked MOs 1 to 27.

Following closure of prosecution evidence, the 1st accused was questioned

under Section 313 of the Cr.P.C. No defence evidence was let in.

3. On an appreciation of the prosecution evidence, the learned

Sessions Judge found the 1st accused guilty of having committed the

offences under Sections 489(B) and 489(C) of the Indian Penal Code. The

other accused namely, accused Nos.2 and 3 who were alleged to have

provided the notes to the 1st accused were acquittal.

4. Sri.Sunny Mathew, the learned counsel appearing for the

appellant/1st accused refers to the deposition of PW1 (the Sub Inspector of

Police), PW2 (the Head Constable of Police), PW6 (the Salesman of the

arrack shop) and PW7 (who was stated to be the person who witnessed the

appellant/1st accused trying to use the counterfeit currency in the arrack

shop) and to Ext.P12 ownership certificate which was marked through

PW11 (Secretary of Maruthomkara Grama Panchayat). He states that it is CRL.A NO. 373 OF 2006

the specific case of PW1 that the fake currency notes were seized from the

house of the 1st accused bearing No.V/427 of Maruthomkara Grama

Panchayat whereas Ext.P12 ownership certificate shows that as per the

assessment register, the building belongs to one Smt.Cheriya Kappummel

Sarada and that there is no evidence to show any relationship between the

aforesaid Sarada and the 1st accused. According to the learned counsel, this

is sufficient to cast serious doubts on the seizure itself. He further

contends that the evidence of PW6 shows that the appellant/1 st accused

had tried to use counterfeit currency notes while paying for arrack

consumed from the shop where PW6 was the salesman. The further

evidence of PW6 is that he had suspected the notes to be fake and had

asked the appellant/1st accused for other notes when again he gave two

other counterfeit currency notes and when questioned he tried to burn the

notes and on being unsuccessful in buring the notes, he tore up the notes

and went away from the shop. PW6, according to the learned counsel, has

also deposed that the entire incident was witnessed by PW7 Bhaskaran.

The learned counsel contends that the reading of the deposition of PW7

shows that he had not supported the prosecution case. It is also submitted

that there was no scientific evidence to prove that any counterfeit currency CRL.A NO. 373 OF 2006

note had been used with the arrack shop, and therefore, the offence under

Section 489(B) will, at any rate, not be attracted. The learned counsel also

submits that there is no proper identification of the accused and relies on

a Division Bench of this Court in Girishan v. State of Kerala [2016

(2) KLT SN 2] in support of contention that where there is lack of proper

identification, the accused is entitled to acquittal.

5. The learned Public Prosecutor, on the other hand, would

contend that there is clear evidence in this case regarding the possession

and use of counterfeit currency by the appellant/1 st accused and that the

fact of the currency in question being counterfeit was established through

scientific evidence. He refers to the deposition of PW1, 2 and 6 to contend

that there was proper identification of the accused by the witnesses. He

would also submit that the fact that PWs3 and 4 had turned hostile does

not in any manner disprove the prosecution case regarding seizure of

counterfeit currency from the house being occupied by the appellant/1 st

accused. According to him, the fact that there was no relationship between

the owner of the house as recorded in the assessment register of the local

authority and the appellant/1st accused is no reason to doubt genuineness

of the seizure in the light of the overwhelming evidence regarding the CRL.A NO. 373 OF 2006

seizure of the counterfeit currency from the possession of the appellant/1 st

accused.

6. I have considered the contentions raised. An offence under

Section 489(B) of the Indian Penal Code would be attracted when a person

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.

The evidence in this case to attract the offence under Section 489(B) is the

evidence of PW6, the salesman of the arrack shop where allegedly, the

appellant/1st accused had tried to use counterfeit currency as genuine. The

evidence of PW6 shows that the appellant/1st accused had tried to use

currency which he believed to the counterfeit in the shop and further that

on being questioned the appellant/1st accused had tried to burn the

counterfeit currency and on being unsuccessful, he had torn up the

counterfeit currency and left the shop. It is also in evidence that the Police

had visited the arrack shop in question at about 8.30 p.m. on the date of

the incident. However, there is no recovery of any torn or any other

material to be sent for scientific analysis to prove that the appellant/1 st

accused attempted to use counterfeit currency in the shop. The evidence of CRL.A NO. 373 OF 2006

PW7 who turned hostile to the prosecution is that he did not witness the

appellant/1st accused trying to use counterfeit currency or burn it or tear it

up as alleged by the prosecution on the basis of the testimony of PW6.

PW6 was only a salesman in the arrack shop. His suspicion regarding the

use of counterfeit currency may not be sufficient to establish that the

appellant/1st accused had attempted to use fake currency while paying for

arrack consumed from the shop. Of course, the fact that the appellant/1 st

accused had tried to burn up the currency notes in question and on being

unsuccessful, he had torn up the notes and left the place leads to a

suspicion that the allegation of the prosecution that the notes in question

where counterfeit is correct. However, the appellant/1 st accused cannot be

convicted on the basis of mere suspicion. Therefore, I am of the view that

the learned counsel for the appellant/1st accused in right contending that

there is little or no evidence to attract a finding that the accused had

committed an offence under Section 489(B) of the Indian Penal Code.

7. Then the question is whether the accused had committed the

offence punishable under Section 489(C) of the Indian Penal Code.

Section 489(C) of the Indian Penal Code requires only possession of

counterfeit currency to be proved together with knowledge of the fact that CRL.A NO. 373 OF 2006

the same is counterfeit. This is a case where the currency was not

recovered to the person of the appellant/1st accused. It was admittedly

recovered from a house stated to be occupied by the appellant/1 st accused.

It is the specific case of PW1 that the seizure was from a house bearing

No.V/427 of Maruthomkara Grama Panchayat. The assessment register of

that Panchayat shows that as per the assessment register, the building

owner is one Sarada. When the seizure of counterfeit currency was

admittedly made from the house stated to belong to the appellant/1 st

accused, the prosecution should have taken steps to establish either that

the appellant/1st accused was the real owner of the house or that he was

occupying the house under permission from the actual owner who may or

may not have been the aforesaid Sarada. However, the prosecution failed

to establish the same. Apart from the oral testimony of PWs1 and 2 that

the house belongs to the appellant/1st accused, there is nothing on record

to establish that the appellant/1st accused was either the owner of the

house or that he was occupying the house in some manner with

permission or otherwise of the actual owner. The fact that the independent

witnesses namely, PWs3 and 4 had not supported the prosecution case

regarding the seizure from the house of the appellant/1 st accused is CRL.A NO. 373 OF 2006

another factor that which entitles the appellant/1 st accused to the benefit

of doubt. Therefore, I am constrained to hold that the prosecution had

failed to establish that the appellant/1st accused had committed an offence

under Section 489(C) of the Indian Penal Code also.

In the result, this appeal is allowed. The conviction and sentence

imposed on the appellant/1st accused in S.C.No.61 of 2000 on the file of

the Judicial First Class Magistrate Court, Nadapuram is set aside and the

appellant/1st accused is acquitted.

Sd/-

GOPINATH P.

JUDGE bpr