Kerala High Court
Sunny Mathew @ Sunny vs State Of Kerala on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
CRL.APPEAL NO. 374 OF 2011
AGAINST THE JUDGMENT DATED 26.02.2011 IN SC NO.736 OF
2005 OF THE SESSIONS COURT, KASARAGOD
APPELLANTS/ACCUSED 5, 6 & 8:
1 P.P.CHANDRAN (A5)
AGED 33 YEARS
S/O.KUNJIKANNAN,PUTHIYAPURAYIL VEEDU,, KUNHALIN
KEEZHIL,PEROM AMSOM,NILESHWAR.
2 M.J.JOSEPH @ KARATE JOSEPH (A6)
MUTHUKATTIL VEEDU, CHETTIPUZHATHODU, PUNJA,
MALOM VILLAGE.
3 S.RAVI @ SIVELI RAVI (A8)
AGED 29 YEARS
S/O.SAMASWAMI,KIZHAKKANKOVVAL VEEDU, NILESHWAR
VILLAGE.
BY ADV SRI.S.RAJEEV
RESPONDENT/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM (CRIME NO.11/2002 OF CBCID,
KOZHIKODE).
BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 03.06.2024, ALONG WITH CRL.A.381/2011 AND
CONNECTED CASES, THE COURT ON 20.06.2024 DELIVERED THE
FOLLOWING:
2
Crl.Appeal Nos.374, 375 and 381 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
CRL.APPEAL NO. 375 OF 2011
AGAINST THE JUDGMENT DATED 26.02.2011 IN SC NO.736 OF
2005 OF THE SESSIONS COURT, KASARAGOD
APPELLANT/ACCUSED NO.1:
P.C.PHILIP @ KUNHU
AGED 51 YEARS, S/O. CHACKO, PULICKAL VEEDU,
CHARUVAKKODU, MALOM VILLAGE.
BY ADV SRI.S.RAJEEV
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT
OF KERALA, ERNAKULAM, (CRIME NO.11/2002 OF
CBCID, KOZHIKODE)
BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 03.06.2024, ALONG WITH CRL.A.381/2011 AND
CONNECTED CASES, THE COURT ON 20.06.2024 DELIVERED THE
FOLLOWING:
3
Crl.Appeal Nos.374, 375 and 381 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
CRL.APPEAL NO. 381 OF 2011
AGAINST THE ORDER/JUDGMENT DATED 26.02.2011 IN SC NO.736
OF 2005 OF THE SESSIONS COURT, KASARAGOD
APPELLANT/2ND ACCUSED:
SUNNY MATHEW @ SUNNY
S/O MATHEW, AGED 42 YEARS, PERUMBATHALIKUNNEL
VEEDU, VALLIKKADAVU, MALOM VILLAGE, KASARAGOD
DISTRICT (UNDER CUSTODY).
BY ADVS.
M.RAMESH CHANDER (SR.)
ANEESH JOSEPH
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH
COURT OF KERALA, KOCHI-31.
2* REGIONAL PASSPORT OFFICER
PASSPORT OFFICE, NEAR CO- OPERATIVE HOSPITAL,
ERANHIPALAM, P.O. MINI BYPASS ROAD, KOZHIKODE,
KERALA 673006.
3* UNION OF INDIA,
REPRESENTED BY SECRETARY TO MINISTRY OF
EXTERNAL AFFAIRS, GOVERNMENT OF INDIA, CENTRAL
SECRETARIAT, NEW DELHI 110001.
*IMPLEADED AS ADDL.RESPONDENTS 2 AND 3 AS PER
THE ORDER DATED 14/12/2023 IN CRL.M.A.1/2023.
SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
4
Crl.Appeal Nos.374, 375 and 381 of 2011
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 03.06.2024, ALONG WITH CRL.A.374/2011,
375/2011, THE COURT ON 20.06.2024 DELIVERED THE
FOLLOWING:
5
Crl.Appeal Nos.374, 375 and 381 of 2011
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.374, 375 and 381 of 2011
-----------------------------------------------------------
Dated this the 20th day of June, 2024
JUDGMENT
Accused Nos.1, 2, 5, 6 and 8 in S.C.No.736 of 2005 on
the files of the Court of Sessions, Kasaragod who stand
convicted for the offences punishable under Sections 489B
and 489C read with Section 34 of the Indian Penal Code, 1860
(IPC) are the appellants.
2. The appellants along with accused No.3 were tried
on a charge for the aforementioned offences. Accused No.4
expired before trial. Accused No.7 was not available for trial
since he absconded. Accused No.3 was acquitted. The
allegations levelled are accused Nos.1 to 8 were found
possessed with various quantities of counterfeit currency
notes of Rs.100 and Rs.50 denominations at different places.
On the premise that the currency notes were of common
origin they were charged and tried together.
Crl.Appeal Nos.374, 375 and 381 of 2011
3. The prosecution has examined PWs.1 to 13 and
proved Exts.P1 to P39. MOs.1 to 15 were identified. The
appellants denied the incriminating circumstances appeared
against them in evidence and stated that they were innocent.
No defence evidence was let in. The trial court took the view
that the evidence of the prosecution witnesses, particularly,
PWs.9 and 12 are reliable. On a consideration of the entire
evidence tendered by the prosecution, the charge was found
proved except against the 3rd accused. Conviction of the
appellants was recorded accordingly. Accused No.1 filed
Crl.Appeal No.375 of 2011, accused No.2 filed Crl.Appeal
No.381 of 2011 and accused Nos.5, 6 and 8 filed Crl.Appeal
No.374 of 2011.
4. Heard the learned counsel for the respective
appellants and the learned Public Prosecutor.
5. The genesis of the case is that PW9 the Sub
Inspector of Police, Vellarikundu Police Station obtained
information on 16.01.2002 that the 1st accused was dealing in
fake currency notes. He along with his colleagues therefore
Crl.Appeal Nos.374, 375 and 381 of 2011
approached the 1st accused and on his body search, two
currency notes, apparently counterfeit, of Rs.100
denomination were found in his possession. The same were
seized under Ext.P1 mahazar. MO1 series are the said
currency notes. It is further stated by PW9 that based on the
information revealed by the 1st accused, his house was
searched on the same day from where five counterfeit
currency notes of Rs.100 denomination were seized. Ext.P2 is
the search list. Those currency notes were identified as MO4
series. PW9 also testified that following the recovery of
counterfeit notes from the possession of the 1 st appellant, he
registered a crime vide Ext.P28 F.I.R.
6. PW9 proceeded to state that the 1 st accused
informed him that he obtained currency notes from the 2 nd
accused. He therefore on 17.01.2002 located the 2 nd accused
and searched his body. 13 currency notes of Rs.100
denomination and 20 currency notes of Rs.50 denomination
were found in his possession. Those currency notes,
presumably counterfeit, were seized as per Ext.P13 mahazar.
Crl.Appeal Nos.374, 375 and 381 of 2011
MOs.2 and 3 are those currency notes respectively. The 2nd
accused is said to have informed PW9 that another lot of
currency notes were kept in his shop. PW9 therefore went to
the shop of the 2nd accused, and seized 54 currency notes of
Rs.50 denomination. MO5 are the said currency notes. Those
currency notes were seized by preparing Ext.P8 search list.
7. PW9 deposed that as per the statement of the 2 nd
accused, accused Nos.3 and 4 were also involved in dealing
counterfeit currency notes and therefore they were found out.
On the body search nothing was seen in the possession of the
3rd accused, however, the 4th accused was in possession of 8
numbers of Rs.100 denomination currency notes and 7
numbers of Rs.50 currency notes. Those currency notes are
identified to be MOs 7 and 8 series respectively. Ext.P11 is the
mahazar for the seizure of MOs.7 and 8.
8. It is the further version of PW9 that based on the
information gathered from the accused under arrest, accused
No.5 was located and his body was searched. He was in
possession of 6 currency notes of Rs.100 denomination, which
Crl.Appeal Nos.374, 375 and 381 of 2011
also were found to be counterfeit. MO9 series are the said
currency notes and those were seized under Ext.P20 mahazar.
Similarly, accused Nos.6, 7 and 8 were also intercepted and
body searches were held. Accused No.6 was in possession of
18 numbers of Rs.100 rupee notes, which were seized under
Ext.P18 mahazar. The said currency notes were produced as
MO10. From the information gathered from him, his house
was searched from where 96 numbers of Rs.50 denomination
currency notes were seized. Ext.P33 is the seizure mahazar
and MO11 are the said currency notes. 14 numbers of Rs.100
denomination currency notes were seized on the body search
of accused No.7, which are MO12 series. Ext.P13 is the
mahazar for seizing MO12. Accused No.8 was in possession of
21 numbers of Rs.100 rupee currency notes and 36 numbers
of Rs.50 currency notes concealed at his loin. Those currency
notes were seized under Ext.P15 mahazar. MOs.13 and 14 are
respectively the said currency notes.
9. PW12 is a constable accompanied PW9. He
deposed about the seizure of currency notes from the
Crl.Appeal Nos.374, 375 and 381 of 2011
possession of the 1st accused and his house. PW9 testified that
he asked residents of the respective localities to sign and they
duly signed the mahazars and searchlights. But, none of the
said witnesses while examined before the court supported the
prosecution. Although a few of the said witnesses admitted to
have signed the respective mahazar, all of them denied having
seen the search and seizure. Therefore, there is absolutely no
independent evidence to prove the search and seizure. The
prosecution can therefore rely on the evidence of PWs.9 and
12 alone to prove the search and seizure. PW12 stated about
the seizure of counterfeit currency notes from the possession
of the 1st accused alone and not from others.
10. The evidence of PW9 is assailed by the learned
counsel for the accused on more grounds than one. It is
contended that he being an official witness and the attesting
witnesses failed to support his version, he cannot be trusted.
Although the 1st accused was arrested on 16.01.2002 and a
crime was registered on that day, PW9 did not venture to
locate the 2nd accused or others on the same day. PW9 took
Crl.Appeal Nos.374, 375 and 381 of 2011
time till 22.01.2002 to reach the remaining accused, one after
the other. The said delay is said to be fatal to the prosecution.
The numbers of the seized currency notes were not mentioned
in the respective mahazars. The whole lot of currency notes
were produced in court only on 05.02.2002. The said delay is
also crucial, especially, when the numbers of the currency
notes were not mentioned in the respective mahazars and
search lists. The accused evidently had genuine currency
notes also, but when PW9 omitted to seize such notes, his
evidence became doubtful. Those currency notes were seized
from a Co-operative Bank, but they were proved to be
genuine ones. The further contention is that the recoveries
from the premises as also from the 2nd accused onwards were
not in compliance to the provisions of Section 27 of the
Evidence Act, 1872. Above all, the contents of Ext.P39 report
obtained from the Currency Notes Press was not put to the
appellants during Section 313(1)(b) questioning, which is a
refraction of law. The learned counsel for the appellants
accordingly would submit that the evidence is insufficient to
Crl.Appeal Nos.374, 375 and 381 of 2011
prove the seizure and to prove the charge against the
accused.
11. The contention of the learned counsel for the
appellants concerning recovery from the houses and shops has
substance. Despite stating that the recoveries were effected
based on the information gathered from the respective persons
after their arrest, PW9 located the place of concealment not as
shown by the respective accused. That may not always be
mandatory for the evidence to be relevant under Section 27 of
the Evidence Act. However, in this case, the statements were
only to the effect that the currency notes were kept in the
house/shop and that is not a statement sufficient to locate the
exact place of concealment. Others might be frequenting to
such places of recovery and the evidence is insufficient to
establish the authorship of concealment. As such, the
recoveries from the premises cannot be used to implicate the
accused concerned to the offence.
12. In the case of recoveries of currency notes from
the person of the respective accused, there is no such legal
Crl.Appeal Nos.374, 375 and 381 of 2011
infirmity. If the oral evidence of PW9 can be trusted, those
recoveries would stand proved. The Apex Court in Karamjit
Singh v. State (Delhi Administration) [AIR 2003 SC
1311] held that,-
"The testimony of police personnel should be treated in
the same manner as testimony of any other witness and
there is no principle of law that without corroboration by
independent witnesses their testimony cannot be relied
upon. The presumption that a person acts honestly
applies as much in favour of police personnel as of other
persons and it is not a proper judicial approach to
distrust and suspect them without good grounds. It will
all depend upon the facts and circumstances of each
case and no principle of general application can be laid
down."
In Baldev Singh vs State of Haryana [(2015) 17 SCC
554] the Apex Court reiterated that view.
13. PW9 deposed on meticulous terms about the recovery
of currency notes from the possession of accused Nos.1, 2, 4, 5,
6, 7 and 8. He admitted that PW12 was along with him. But PW12
deposed about the seizure of currency notes from the 1 st accused
alone. Failure to depose by PW12 about the seizure from other
accused may give an impression that there is purposeful
Crl.Appeal Nos.374, 375 and 381 of 2011
suppression. But that does not adversely affect the reliability of
PW9 concerning such recoveries.
14. PW9 was cross-examined on behalf of each of the
accused. No serious contradiction or inconsistency has been
brought out in his evidence. The suggestion of the accused
that they were falsely implicated has been duly denied by
PW9. Even in the absence of any independent corroboration,
the evidence of PW9 remains creditworthy. Yet another reason
pointed out to disbelieve him is that he did not venture to
apprehend accused Nos.9 to 15 despite getting information
about their involvement. In that regard his version is that he
could not apprehend any of them despite sincere efforts.
PW15 deposed that earnest efforts were made, but accused
Nos.9 to 15 were not able to be located or apprehended. In
such circumstances, the failure to apprehend and implicate
those accused cannot be a reason to disbelieve PW9. In such
circumstances, I hold that the evidence of PW9 coupled with
the respective mahazars, proved seizure of currency notes from
the person of accused Nos.1, 2 and 4 to 8.
Crl.Appeal Nos.374, 375 and 381 of 2011
15. All the seized currency notes were forwarded for
expert opinion in terms of Ext. P38 forwarding note. Ext.P 39
is the analysis report. It was reported that all the currency
notes seized from the possession of the said accused were
counterfeit.
16. It is contended that during questioning under
Section 313(1)(b) of the Code, the accused were not told
about the contents of Ext.P39. In Umashankar v. State of
Chhattisgarh [AIR 2001 SC 3074] the Apex Court held
that if any specific question about the currency notes being
fake or counterfeit was put to the accused in the examination
under Section 313 of the Code, that is fatal to the
prosecution. This Court took a similar view in Sivadasan v.
State of Kerala [2007 (3) KHC 739] and Anthru @
Abdurahiman v. State of Kerala [2020 (4) KHC 469].
There is such a refraction in this case. It is the further
contention that the charge framed against the accused is
totally insufficient. On a perusal of the charge, it is seen that
it is an omnibus one. It states, 'accused Nos.1 to 8 were
Crl.Appeal Nos.374, 375 and 381 of 2011
found in possession and transacting in counterfeit currency
notes of Rs.100 and Rs.50 denominations between
16.01.2002 and 22.01.2002 knowing the same as counterfeit
currency notes, with the intention to use the same as genuine
currency notes.' The said charge does not satisfy the
requirement of Section 212 and 213 of the Code. In the light
of the evidence of PW9, the seizures of currency notes from
the possession of accused Nos.1, 2 and 4 to 8 were proved.
On account of the aforesaid refraction in law, their conviction
becomes bad in law. At this belated stage, a remand of the
case to the trial court for a trial after framing a proper charge
is against the interest of justice.
In the circumstances, the conviction of the appellants is
liable to be set aside. I do so. The appeals are allowed. The
appellants are acquitted. They are set at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
Crl.Appeal Nos.374, 375 and 381 of 2011
APPELLANT ANNEXURES
Annexure A7 PHOTOSTAT COPY OF THE PASSPORT OF THE
PETITIONER/APPELLANT
