Jomon, S/O. Antony vs State Of Kerala
2023 Latest Caselaw 5790 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                        CRL.A NO. 1432 OF 2008
[AGAINST THE JUDGMENT IN S.C.NO.580/2005 ON THE FILE OF THE COURT
  OF ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT NO.II, ADHOC),
                       THRISSUR DATED 15.7.2008]
APPELLANTS/ACCUSED NOS.1 TO 3 & 6:

    1       JOMON, S/O. ANTONY
            KIZHAKOOTTU VEETTIL, ERUMAPETTY DESOM, KARIYANNUR
            VILLAGE, TALAPPILLY TALUK
    2       SASIKUMAR SO. NARAYANAN NAIR
            SEKHARATH VEETTIL, MANAPADY DESOM, KADANGOD VILLAGE,
            TALAPPILLY TALUK
    3       SIDDIQUE AKBAR @ SIDDIQUE
            S/O. KUNJUMUHAMMED, KUNNATHUVALAPPIL VEETTIL,
            VAZHIYURMURI DESOM, VELLAKODE VILLAGE, TALAPPILLY
            TALUK.
    4       ASHARAF S/O. MUHAMMAD
            MANAYATH VEETTIL, PUNNA DESOM, CHAVAKKAD AMSOM,
            MANATHALA VILLAGE
            BY ADVS.
            SRI.P.VIJAYA BHANU (SR.)
            SMT.P.MAYA


RESPONDENT/COMPLAINANT:

            STATE OF KERALA REPRESENTED BY
            PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

             BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR
     THIS   CRIMINAL    APPEAL    HAVING   BEING   FINALLY   HEARD   ON
22.05.2023, THE COURT ON 24.05.2023 DELIVERED THE FOLLOWING:
 CRL.A.No.1432/2008                2


                        J U D G M E N T

in S.C.No.580/2005 on the file of the Additional

Sessions Court (Fast Track Court No.II, Adhoc),

Thrissur. The aforesaid Sessions Case arose from

Crime No.109/1995, registered by Erumapetty

Police Station which was later investigated by

the Deputy Superintendent of Police, CBCID

(CRS), Ernakulam. The offence alleged against

the accused persons, a total of eight in number,

was under section 489B r/w. Section 34 of the

Indian Penal Code (IPC).

2. The prosecution case is that the accused

persons, with the common intention to carry out

the transactions, possessed counterfeit currency

notes of denomination of rupees 100. The CBCID,

after completing the investigation, submitted a

final report against eight accused persons

before the Judicial First Class Magistrate

Court, Kunnamkulam, where it was taken into the

file as C.P.No.67/2000. While the committal

proceedings were in progress, the 8th accused

passed away and hence the proceedings against

him got abated. The matter was committed to the

Sessions Court so far it relates to accused

Nos.1 to 7, and the same was made over to the

Additional Sessions Court (Fast Track Court

No.II, Adhoc), Thrissur, where it was tried as

S.C.No.580/2005. Even though all the accused

initially participated in the trial, after the

prosecution evidence concluded, the 5th accused

absconded and hence the case against him was

split up. In support of the prosecution case,

Pws.1 to 18 were examined, Exhibits P1 to P36

were marked, and Material Objects 1 to 7 were

identified. From the side of the defence, DWS.1

and 2 were examined and Exhibits D1 to D3 were

marked.

3. After evaluating the materials placed on

record, the learned Sessions Judge found the

accused Nos. 4 and 7 not guilty. However,

accused Nos.1,2,3 and 6 were found guilty of the

offence under section 489B read with section 34

of the Indian Penal Code and accordingly,

accused Nos. 1 and 6 were sentenced to undergo

rigorous imprisonment for seven years each and

to pay a fine of Rs.50,000/- each with a default

sentence to undergo rigorous imprisonment for a

were sentenced to undergo rigorous imprisonment

for three years each and to pay a fine of

Rs.20,000/- each with a default sentence to

undergo rigorous imprisonment for a period of

one year each. This Crl.Appeal is filed by

accused Nos.1 to 3 and 6 challenging the

conviction and sentence as mentioned above.

4. Heard Sri. P. Vijaya Bhanu, the learned

Senior Counsel for the appellants, Sri. Sudheer

Gopalakrishnan, the learned Public Prosecutor

for the State.

5. The learned Senior Counsel for the

appellants contended that the prosecution case

was full of inconsistencies/discrepancies, and

under no circumstances the learned Sessions

Judge should have arrived at a finding of guilt.

It was pointed out that no materials warranting

a conviction and consequential sentence exist.

It is further pointed out that, even if it is

assumed for argument's sake that counterfeit

currency notes were seized from the possession

of the accused persons, that by itself is not

sufficient to hold the appellants guilty of the

offence under section 489B of IPC unless it is

shown that, the possession of currency notes by

the appellants was with the knowledge that the

same was counterfeit notes. According to the

learned counsel, from the evidence of the

prosecution, it is clear that the

characteristics of the counterfeit notes

allegedly seized from the appellants were such

that it was not possible to be identified as

counterfeit currency notes under normal

circumstances. Reliance was also placed on the

decision rendered by the Hon'ble Supreme Court

in Mammutti v. State of Karnataka [AIR 1979 SC

1705]and also the decision rendered by this

Court Anthru v. State of Kerala [2020(4)KHC

469]. It is pointed out that, in the said

decisions, it was held that if there is no

evidence or 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, no conviction could be

possible, unless there are specific materials

indicating the knowledge of the accused as to

its fakeness.

6. On the other hand, the learned Public

Prosecutor would oppose the aforesaid

contentions by pointing out that ample materials

are available on record to establish the guilt

of the accused persons. It is pointed out that,

even though independent witnesses turned hostile

to the prosecution, the evidence of Pws.1, 14,

15 and 16 would clearly establish the role

played by each and every appellant in committing

the crime.

7. I have gone through the records. The

crucial aspect to be noticed in this case is

that, even though 18 witnesses were examined by

the prosecution, all the independent witnesses,

i.e. Pws.2 to 13 turned hostile to the

prosecution. The only evidence available for the

prosecution to establish the case is the

evidence of PW1, PW14 to PW18; all are official

witnesses. The crucial evidence is that of PW1,

who was the detecting officer. PW1 narrated the

manner in which the seizure and the arrest of

the accused persons were made. According to him,

on 9.7.1995 at about 9.30 in the morning, he got

a secret information that the 1st appellant/1st

accused had concealed counterfeit currency notes

in his establishment name, 'Jaifield Flour

Mill'. Immediately thereupon, he prepared a

search memorandum, sent it to the jurisdictional

court, and conducted a search in the premises of

the 1st accused along with the police party.

When they reached there at about 10 a.m. on the

day, the 1st accused was present, and during the

search, the 1st accused had produced six

currency notes of 100 rupee denomination, which

were kept in an almirah in his establishment. On

inspection, PW1 had some suspicion about the

genuineness of the said currency notes and upon

closure scrutiny, it was revealed that the said

notes were counterfeit. Immediately, the notes

were seized by preparing Exhibit P2 seizure

mahazar and the 1st accused was arrested. Even

though a search was conducted in the residence

of the 1st accused, nothing could be recovered.

Thereafter, he, along with the police party,

reached the Police Station and registered an

F.I.R.

8. During the course of interrogation of

the 1st accused, he revealed the details of the

source from which he obtained the said

counterfeit notes. According to the 1st accused,

he got it from the 2nd accused and thereupon, a

search was conducted in the house of the 2nd

accused. Exhibit P5 is the search memo prepared

for the said purpose. At the time of conducting

search, the 2nd accused was present, and during

the same, he made available a 100 rupee currency

note concealed in a notebook. On inspection, PW1

found that the same was a counterfeit note, and

accordingly, the said counterfeit was seized by

preparing Ext.P6 mahazar. The 2nd accused was

also arrested.

9. During the interrogation of the 2nd

accused, he informed that he got the currency

note from the 3rd accused and thereupon, a

search was immediately conducted in the

residence of the 3rd accused. Exhibit P7 is the

search memo evidencing the same, and at the time

of conducting search, the 3rd accused was

present in his house. During such search, the

3rd accused made available nine numbers of

currency notes of 100 denominations which were

kept inside the table. Being convinced of the

fact that the said currency notes were

counterfeit, the same were seized by the PW1

after preparing Exhibit P8 seizure mahazer. The

3rd accused was also arrested. On interrogation

of the 3rd accused, he informed that he got the

same from the 4th and 5th accused, and it was

also informed that some counterfeit currency

notes were also given to the 7th accused.

Immediately, a search was conducted in the

residence of the 7th accused after preparing

Exhibit P9 search memo. However, no counterfeit

currency notes were recovered from the search.

10. Thereafter, the 5th accused was arrested

and while conducting his body search, nine

counterfeit currency notes of 100 rupee

denomination could be seized from his shirt's

pocket. Exhibit P12 is the seizure mahazar

evidencing the same. Upon getting the

information from the 5th accused that the 6th

accused is also having in his possession some

counterfeit currency notes, the 6th accused was

arrested. On conducting his body search, nine

currency notes from his possession were also

seized, which is evidenced by Exhibit P11

seizure mahazar.

11. According to PW1, he deputed CW2, the

Sub Inspector of Police, to conduct the search

in the residence of the 4th and 8th accused.

Accordingly, he conducted the search in their

residences. During the search, CW2 could recover

a 100 rupee currency note from the possession of

the 4th accused. During the search conducted in

the residence of the 8th accused, he was not

there. However, the wife of the 8th accused

(PW13) made available three counterfeit currency

notes of 100 rupee denomination, which were

seized by CW2. Unfortunately, CW2 could not be

examined by the prosecution as he passed away by

the time when the trial commenced.

12. As mentioned above, all the independent

witnesses, viz. Pws.2 to 13 who witnessed the

respective seizures turned hostile to the

prosecution, and no part of their evidence would

support the prosecution case. The only available

evidence relied upon by the prosecution is the

evidence of PW1, PW14, PW15 and PW16. The

crucial contention raised by the learned Senior

counsel for the appellants is that the evidence

adduced by the prosecution, mainly in the form

of oral evidence of Pws.1, 14 to 16, is not

sufficient to establish the case. PW14 is the

Assistant Sub Inspector of Police who

accompanied PW1 while conducting searches in the

premises of accused Nos.1 to 3. PW15 is the

Officer who assisted CW2 in conducting the

search and arresting accused Nos.4 and 8. PW16

is the Police Constable who accompanied PW1

while conducting the search in the establishment

of the 1st accused and witnessed the arrest of

the 1st accused.

13. When considering the adequacy of the

evidence adduced by the prosecution to establish

the guilt of the accused persons, I find some

force in the contention put forward by the

learned counsel for the appellants. As mentioned

above, apart from the evidence of the official

witnesses, no other evidences are forthcoming

from the part of the prosecution. In the absence

of any independent evidence, the scrutiny of the

evidence of the official witnesses has to be

done strictly. I have no doubt in my mind that

if the evidence of official witnesses is without

any discrepancies and found to be trustworthy,

nothing will preclude this Court from convicting

the accused by placing reliance upon the same.

Thus, the question arises is as to whether the

evidence of official witnesses in this case is

that of such quality so as to arrive at the

conclusion of the guilt by merely placing

reliance upon the same. While considering the

evidence adduced by the prosecution, by keeping

that perspective in mind, it can be seen that

there are several discrepancies in the evidence

of the official witnesses.

14. As mentioned above, the most crucial

evidence is that of PW1. The entire proceedings

were commenced based on the information received

from PW1 as to the possession of the counterfeit

currency notes by the 1st accused. All the other

accused were implicated in this case based on

the information revealed from the 1st accused

and the other accused who were arrested during

the investigation. Thus, the entire incident

started from the search conducted on the

premises of the 1st accused and also from his

arrest. Exhibit P2 is the seizure mahazar based

on which the recovery of six numbers of

counterfeit currency notes was affected from the

possession of the 1st accused. During the cross-

examination of PW1, the statement given by PW1

before the Investigation Officer (PW17) was

marked as Exhibit D1. In Exhibit D1's statement,

he mentioned that he got a secret information

about the possession of counterfeit currency

notes by the 1st accused at 8 a.m. on 9.7.1995.

However, during his cross-examination, he stated

that he got the information between 9-9.30 a.m.

on 9.7.1995. Of course, the said difference in

the timing could be a minor discrepancy if it

was the only discrepancy in the evidence of PW1.

However, on careful scrutiny of the evidence of

PW1 with the other materials produced by the

prosecution, it can be seen that there are some

other glaring discrepancies as well. During the

cross-examination, PW1 clearly stated that

Exhibit P2 seizure mahazar was prepared in the

handwriting of CW2 (the deceased Sub Inspector

of Police). However, in Exhibit D1, he clearly

stated that, while Exhibit P2 mahazar was being

prepared, he sent CW2 to find out whether the

shop of the 2nd accused was open or not. From

the examination of Exhibit P2 seizure mahazar,

it can be seen that even though the name of CW2

is specifically mentioned therein, he did not

sign it. However, during the cross-examination,

PW1 clearly stated that Exhibit P2 was prepared

by CW2, and he was present there throughout the

search. Even though the learned counsel for the

accused specifically put the contents of Exhibit

D1 to him, he stated that he does not remember

whether he had made any statement to that

effect. The aforementioned discrepancy is also

evident from the evidence of PW14 and PW16. PW14

also stated that, during the inspection, CW2 was

present. However, Exhibit D2 is the statement

given by PW14 before PW17 wherein it is

mentioned that, before completing the

preparation of mahazar, PW1 had sent CW2

somewhere for some purposes. This portion of the

statement was specifically put to PW14 during

the course of the examination, but he could not

give any proper explanation for the same. PW16

also made a similar statement during his cross-

examination. Exhibit D3 is the portion of the

statement wherein it was mentioned by him that,

before Exhibit P2 mahazar was completed, PW1 had

sent the Sub Inspector of Police to some other

place. During the examination of PW17, the

investigation officer clearly stated that PW1,

PW14 & PW16 had given statements before him, as

mentioned in Exhibits D1 and D3, respectively.

When all these aspects are taken into

consideration, it can be seen that there is an

apparent discrepancy with regard to the

preparation of Exhibit P2 seizure mahazar. Since

all the subsequent events which formed part of

the offence were following the seizure mahazar

of the counterfeit currency notes from the

possession of the 1st accused and the

information received from him, all the

subsequent events shall also have to be treated

as tainted with a suspicion when it was found

that the first search and seizure conducted in

the premises of the 1st accused itself is

doubtful.

15. When considering the role of other

accused, the only evidence apart from the evidence

of PW1 are the depositions of PW14 and PW16. As far

as PW14 is concerned, he was party to the search

conducted on the premises of the 1st accused

alone. I have already found that the materials

placed on record by the prosecution about the

search conducted on the premises of the 1 st

accused are doubtful. PW15 is the person who

accompanied CW2 in conducting the search in the

residence of the 4th and 8th accused. As the 4th

accused is already acquitted by the trial court,

and the proceedings against the 8th accused got

abated consequent to his death, the evidence of

PW15 does not have any significance as far as

this appeal is concerned. When coming to the

evidence of PW16, it can be seen that, according

to him, he was party to the search conducted on

the premises of accused Nos.1 to 3 and 7. The

7th accused is already acquitted as no

counterfeit currency could be recovered from his

possession. However, the crucial aspect to be

noticed in this regard is that, even though he

claimed to be a party to the police team while

conducting the search in the residence of the

aforesaid accused persons, his presence is not

reflected in any of the contemporaneous

documents. He did not sign in any of the

documents as a witness. No other materials are

available on record regarding the presence of

PW16 when conducting the search on the premises.

In Exhibits P2 and P4, the names of the officers

who accompanied PW1 are clearly mentioned.

However, PW16 viz. Sri. Francis A.K. is not

among the persons referred to therein. In such

circumstances, in the absence of any evidence

concerning the presence of PW16 in the aforesaid

searches, it is not safe to rely upon the

evidence of PW16 for supporting the version of

PW1. As regards the arrest of the 6th accused

and the seizure of the counterfeit currency from

his possession, apart from the evidence of PW1,

there are no other reliable materials.

16. Another aspect which creates a shadow of

doubt in the case advanced by the prosecution is

the documents produced as Exhibits P23, P24 and

P26. Exhibit P23 is a report submitted by the

police before the learned Magistrate for

correcting the mistakes in the contents of

Exhibit P12 mahazar. Exhibit P24 is the report

submitted by the police for correcting mistakes

in the time mentioned in the F.I.S. It was

pointed out that, in the F.I.S., the time of

occurrence was wrongfully mentioned as 10.30

a.m. instead of 10 a.m. Exhibit P25 is the

application submitted by the Investigation

Officer for correcting the address of the 8th

accused. Though, these mistakes in the

documents, including the FIS, which is a crucial

document, by themselves could not be treated as

very crucial, when the same is taken into

consideration in the background of various other

discrepancies discussed above, those would

create a shadow of doubt as to the evidence

adduced by the prosecution. Thus, when all these

discrepancies are taken together and considered,

those would lead to a definite conclusion that

the investigation, in this case, was conducted

in a shabby manner. No independent evidence is

also available on record to establish the

prosecution case. In such circumstances, in the

absence of such independent witnesses, it is not

at all safe to hold the accused persons guilty

based on the evidence of the official witnesses

alone, which are tainted with certain

discrepancies.

17. There is yet another aspect. Even if it

is assumed for the argument's sake that the

prosecution successfully established the case

that the accused persons were in possession of

counterfeit currency notes, that by itself is

not sufficient to hold them guilty under section

489B of IPC. Section 489B of IPC reads as

follows:

"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 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."

A careful reading of the same would reveal that

to attract the said offence, the person who had

dealt with such counterfeit currency note or

banknote must have the knowledge, or there must

be reasons for him to believe that the said

currencies were forged or counterfeit. Thus,

mere possession of counterfeit notes by itself

is not a ground to hold the accused guilty of

the offence under section 489B of IPC. To punish

the accused, the prosecution must also prove

that the accused persons possessed counterfeit

currency with the knowledge that the same was a

counterfeit currency. In M.Mammutti v. State of

Karnataka (AIR 1979 SC 1705), the Hon'ble

Supreme Court observed as follows:

"The appellant has been convicted in this appeal

under Sections 489-B and 489C and has been sentenced to RI for six months respectively and fine of Rs.500. The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupees note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub-Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under S.342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs.390. These currency notes have been given to him by the purchaser. He also said that he did not know that the currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature of 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 Cr.P.C. The High Court has affirmed the judgment of the learned Sessions Judge on 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 has 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 Ext.P13 which appears at p.154 of the paper book, the appellant has struck 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. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him.'' (Emphasis supplied)".

18. In the said decision, it was

categorically held by the Hon'ble Supreme Court

that if the notes were of such a nature that a

mere look at them would convince anybody that it

was counterfeit, the presumption as to the

knowledge of fakeness could reasonably be drawn.

This Court, in Anthru's case (supra) followed

the principles laid down by the Hon'ble Supreme

Court and held that 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.

19. In this case, the prosecution does not

have a case that the characteristics of the

currency note allegedly seized from the

possession of the appellants were such that a

mere look at the same would enable an ordinary

person to identify the same as a counterfeit

note. On the other hand, going by the

description given by the seizure mahazers in

this case, it is evident that it was not

possible to identify it as a counterfeit

currency note by merely looking at it. The

fakeness of the notes could be detected only on

closer scrutiny. The aforesaid aspect is evident

from Exhibit P12 report of the expert. The

evidence of PW1 was also to the effect that the

fakeness of the notes could be identified only

on close scrutiny. In this case, even if the

materials adduced by the prosecution were

treated as acceptable for the argument's sake,

it would only show the possession of the

counterfeit notes by the respective accused

persons. There are absolutely no materials

available on record indicating the conscious

possession of the appellants/accused as to its

fakeness. The evidence also clearly suggests

that the currency notes were not easily

identifiable as counterfeit. In such

circumstances, this is a fit case in which the

principles laid down by the Hon'ble Supreme

Court in M.Mammutti's case (supra) and that of

this Court in Anthru's case (supra) can be

applied.

20. Thus, after taking into account all the

relevant aspects, I am of the view that,

interference in the judgment rendered by the

learned Sessions Judge is required to be made.

The learned Sessions Judge appears to have

entered into the finding of guilt of the accused

persons by merely placing reliance upon the

evidence of PW1 alone. On careful scrutiny of

the evidence of PW1, I am of the view that a

conviction based on the said evidence alone is

not at all safe, as there are certain glaring

discrepancies therein. Besides the same, the

prosecution also could not prove the conscious

possession of the appellants. In such

circumstances, I find merits in the appeal.

Accordingly, this appeal is allowed. The

judgment rendered by the Additional Sessions

Judge (Fast Track Court No.II, Adhoc), Thrissur)

on 15.7.2008 in S.C.No.580/2005 is hereby set

aside, and the appellants are acquitted of all

the charges. The bail bond executed by them

shall stand cancelled.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk