Kerala High Court
Abdul Kareem And 4 Others vs State Of Kerala,Rep.By P.P.,H.C.Of ... on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
CRL.A NO. 672 OF 2007
AGAINST THE JUDGMENT DATED 24.03.2007 IN SC NO.31 OF 2004 OF
ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA
APPELLANT/ACCUSED NOS.1 TO 5:
1 ABDUL KAREEM AND 4 OTHERS
AGED 53 YEARS, MURIKKAD VAKERI VEEDU,, KADALMADU,
THOMADUCHAL, WAYANAD DISTRICT.
2 SAJEEV ANAND SO.SOMAN NAIR
AGED 28 YEARS, KAYATTUTHARA VEEDU,, PAYIKOLLI,
KADALMADU, THOMADUCHAL, WAYANAD, DISTRICT.
3 ASOKAN SO.DAMODARAN AGED 38 YEARS
THOTTATHIL VEEDU, KADALMADU, THOMADUCHAL,, WAYANAD
DISTRICT.
4 ABDUL AZEEZ AZEEZ SO.MOIDEEN
AGED 53 YEARS, KARINGENATTIL VEEDU,, NELLIYODU,
KOTTIYOOR AMSOM, KANNUR DISTRICT.
5 BABY MATHEW SO.THOMAS
AGED 38 YEARS, KUZHIKANDATHIL VEEDU,, PAYIKKOLLI,
KADALMADU, THOMADUCHAL,, WAYANAD DISTRICT.
BY ADV SRI.RAJESH NAIR
RESPONDENTS/COMPLAINANT AND STATE:
STATE OF KERALA,REP.BY P.P.,H.C.OF KERAL
ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
SR.PP.PUSHPALATHA M.K.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.672 of 2007
2
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal No.672 of 2007
-----------------------------------------------------------
Dated this the 28th day of May, 2024
JUDGMENT
This is an appeal filed under Section 374(2) of the
Code of Criminal Procedure, 1972. The appellants were
convicted by the Additional Sessions Judge (ADHOC)-I,
Kalpetta, for an offence punishable under Section 489(C)
r/w 34 of the Indian Penal Code, 1860 as per judgment
dated 24.03.2007. They were sentenced to undergo
rigorous imprisonment for a period of three years and to
pay a fine of Rs.10,000/- each.
2. The prosecution was launched on finding that the
appellants possessed bulk quantities of currency notes at or
around 2.00 p.m. on 09.06.1999. The seizure was affected
from the premises of Aiswarya cinema theatre,
Sulthanbathery. PW4, the Sub inspector of Police,
Sulthanbathery Police Station, on getting an information
that some persons were trying to transact counterfeit
currency notes, reached there. Appellants 1 and 2
respectively, were found in possession of 30 and 25 notes of
Rs.100/- denomination. On noticing that the said notes
were counterfeit, PW4 seized the said currency notes under
Exhibit P1 mahazar and arrested them. Based on the
information gathered from them, appellants 3 to 5 were
located in the Jeep bearing registration No.KL-10 A 5781 on
the theatre premises. On searching their body, each of
them was found in possession of similar counterfeit
currency notes. The 3rd appellant was in possession of 25
currency notes and appellants 4 and 5 were in possession of
30 currency notes each. Those currency notes were also
seized by preparing separate mahazars. After investigation,
a final report was filed resulting in initiation of S.C.No.31 of
2004.
3. The prosecution examined 11 witnesses and
produced 22 documents. Mos 1 to 9 were identified as well.
During the questioning under Section 313 (1)(b) of the
Code, the appellants denied all the incriminating
circumstances appeared in evidence against them. Their
case was one of total denial. They got examined DWs 1 to
3. The trial court, after considering the evidence on record,
held that the prosecution succeeded in proving that the
appellants possessed counterfeit currency notes as alleged
in the charge with sufficient knowledge and intention to use
the same as genuine. However, the charge that they
transacted the counterfeit currency notes was found against
and they were found not guilty of the offence under Section
489(B) of the IPC.
4. Heard the learned counsel appearing for the
appellants and the learned Public Prosecutor.
5. The findings of the trial court leading to the
conviction of the appellants are assailed by the learned
counsel for the appellants both on factual and legal
grounds. Insofar as the recovery of the currency notes
which were marked as MOs 1 to 5 series and also the
recovery of 30 currency notes from the jeep, in which
appellant nos.3 to 5 were sitting, they contended that the
evidence is totally insufficient. It is submitted by the
learned counsel for the appellants that the evidence of PW
4, who is the Detecting Officer, stands alone inasmuch as
the independent witnesses did not support his version.
PW9, the ticket issuing clerk of the Aiswarya Theatre, who
first noticed the appellants' attempt to transact the
counterfeit notes, deposed in court discrepantly. When the
version of PW9 is against the case of prosecution itself, the
version of PW4 cannot be trusted. Unless corroborated by
independent evidence on material particulars, the evidence
of a police officer cannot be believed. It is further
contended that PW4 being the Station House Officer should
have recorded the information he received in the General
Diary. The same was not produced in the court and that
further weakened the credibility of PW4 concerning the
seizure and arrest. It is thus contended that since the
independent witnesses did not support the case of the
prosecution, the prosecution necessarily has to fail.
6. Coming to the legal aspects, the submission of
the learned counsel for the appellants is that even if the
appellants are proved to have possessed currency notes, no
offence under Section 489(C) of the IPC would be attracted
for, none of the appellants knew that the said currency
notes were counterfeit notes. It is pointed out that accused
Nos.3 to 5 could well see the incidents transpired inside the
theatre premises through its glass panes, and therefore it
cannot be expected that they sat in the jeep till they were
apprehended by PW4. It therefore, improbabilises the
prosecution case. On the other hand, that circumstance
indicates that none of the appellants had knowledge that
the currency notes in their possession were counterfeit
notes.
7. Learned Public Prosecutor would submit that the
evidence tendered by the prosecution through PW4, proved
convincingly that the appellants possessed currency notes
of Rs.100/-. They were arrested in the presence of
witnesses and when Exhibits P1 to P5 prepared by PW4 was
admitted to have been signed by those witnesses, the same
supports the evidence of PW4. True PWs 1 to 3, witnesses
to the said mahazar, did not fully support the case of the
prosecution. Although they admitted their signatures, and
also deposed to have seen police arresting a few persons,
they denied having seen seizure of any currency notes.
PW9 also gave contradictory statements. He stated initially
that he received the currency note, but returned it later in
exchange of a genuine note. Exhibit P17 is the
contradiction so brought out. In the view of learned Public
Prosecutor, even inspite of those contradictions, the
evidence of PWs 1 to 3 and 9, insofar as the arrest of
appellants from the theatre premises is concerned, tally
with the version of PW4. They being hostile witnesses, their
contradictory statements cannot be used to disbelieve the
other witnesses. The purpose of contradictions is only to
the extend of disbelieving the witness concerned and that is
not a reason to discard the evidence of PW4.
8. PW4 deposed, in detail, regarding the
circumstances in which he reached Aiswarya Theatre, and
effected recovery and arrest of accused Nos.1 to 5. He was
informed by the theatre authorities that 2 persons were
found possessed with counterfeit notes and they transacted
those notes by purchasing tickets and buying ice creams.
True, PW9 did not support the said case of the prosecution,
inasmuch as he deposed that, at the time of tendering the
currency note itself, he refused to accept and insisted to
give genuine notes. But then the evidence of PW4, the
Detecting Officer, despite searching cross examinations
stands reliable. I am unable to support the view that the
discrepancies in the evidence of independent witnesses
have the obvious result of disbelieving PW4. His evidence
gets support from the contemporaneous documents,
preparation of which at the theatre premises is
substantiated by the evidence of Pws1 to 3 and 9. In the
circumstances, I am of the view that the evidence tendered
by the prosecution is sufficient to prove that appellant Nos.
1 to 5 were found in possession of currency notes, which
were seized as per Exhibits P1 to P5 mahazars. The further
version of PW4 that 30 more currency notes were found in
the jeep, which were seized as per Exhibit P6 seizure
mahazar also stands proved. In the absence of any
evidence to support the contention that appellants 3 to 5
could easily escape arrest soon on noticing PW4
apprehending other appellants, cannot be accepted. Hence,
the findings of the trial court in regard to the arrest and
seizure are devoid of any infirmity.
9. The learned counsel for the appellants places
reliance on the decisions of this Court in Kuttan Nadar
Wilson v. State [2002 (2) KLJ 362] and Anthru @
Abdurahiman v.State of Kerala [2020 (4) KHC 469] as
well as that of the Calcutta High Court in Tousif alias Gara
alias Tinku v.State of West Bengal (2022 KHC 4489), in
order to fortify his contention that the possession of
currency notes by the appellants did not amount to an
offence under Section 489C of the IPC.
10. From Exhibit P16 report which was obtained from
the Currency Notes Press, Dewas, the nature of the
currency notes in question can be seen. It is contended
that except for the texture and the numbers, no
distinguishing feature could be found on it to identify as
counterfeit notes. Therefore, for possessing such notes
which are not easily distinguishable, the appellants cannot
be held liable for an offence.
11. I am unable to accept the aforesaid contention.
Numbers of the currency notes seized in this case are
described in the respective mahazars. Exhibit P14 is the
property list. The numbers are stated in it as well. 30
notes possessed by the 1st appellant and 30 notes
possessed by the 5th appellant were having the same
number, 3ED 838198. 25 notes possessed by the 2 nd
appellant and 25 notes possessed by the 3 rd appellant were
having the same number, 3ED 171632. Similarly, 30 notes
possessed by the 4th appellant and 30 notes found in the
Jeep were having the same number, IME 583801. When the
notes were having the same number, and the quantity was
bulk, they cannot plead ignorance as to the real nature of
such currency notes. No deliberation is required, that
each genuine currency note bears a unique number. When
30 currency notes bear common number, one can easily
understand that the same are not genuine.
12. In the above regard, learned counsel for the
appellants submits that no person ordinarily would verify
number of currency notes that come to his possession. It
is true in the common course of human conduct, one may
not always verify number of a currency note that comes to
his possession. But that cannot have a universal
application. Here is a case where appellants were in
possession of counterfeit currency notes. From the
circumstances came out from the evidence, it can be said
that the appellants were parties of a same group. It is
especially so, when currency notes possessed by appellants
1 and 2, who entered the theatre, and appellants 3 and 5
who waited in the jeep, are of common number and
therefore common origin. When members of such a group
possessed currency notes of such bulk quantity, only
possible conclusion is that they knew the real nature of
those currency notes. In the said circumstances, the law
laid down by this Court in Kuttan Nadar Wilson v. State
[2002 (2) KLJ 362] and Anthru @ Abdurahiman v.State
of Kerala [2020 (4) KHC 469] as well as Calcutta High
Court in Tousif alias Gara alias Tinku v.State of West
Bengal (2022 KHC 4489) is not applicable to this case.
13. Accordingly, it is held that the appellants
possessed counterfeit currency notes with the knowledge
that they are counterfeit ones and also with the intention
of using the same as genuine. Therefore, conviction of the
appellants under Section 489( C) of the IPC is not liable to
be interfered with.
14. Learned counsel for the appellants would submit
that considering the circumstances of the appellants and the
delay of 25 years in concluding the proceedings, the
appellants are entitled to get the benefit of Section 4 of the
Probation of Offenders Act. In the alternative, it is
contended that the sentence is liable to be converted to one
of fine. In that regard the learned counsel for the
appellants places reliance on Sunita Devi v.State of Bihar
[2024 (3) KHC SN 27 (Page No.135) (SC)]. In that case, a
general direction was issued to the effect that the provisions
of the Probation of Offenders Act or Section 360 of the
Code, as the case may be, shall be invoked wherever those
provisions are found applicable. No doubt, in the event of a
conviction, the primary endeavour of the court shall be to
reform and reintegrate the convict to the mainstream of the
society. But depending upon the nature of the offence,
applicability of the provisions shall be decided. In a case
where, the interest of the society at large, or the national
security is involved, provisions under Probation of
Offenders Act cannot ordinarily be invoked.
15. This is a case where 5 persons possessed bulk
quantities of counterfeit currency notes. The source from
which they obtained could not be proved by the
prosecution. In the circumstances, I am of the view that
this is not a fit case where the provisions of the Probation of
Offenders Act can be invoked.
As rightly pointed out by learned counsel for the
appellants, the period elapsed after detecting the offence is
too long and unjustify incarceration of the convicts for a
long period. However, I am not convinced that fine alone
will meet the ends of justice. Therefore, the period of
imprisonment can be reduced. Accordingly, the conviction is
confirmed and the substantive sentence is modified. Each of
the appellants is sentenced to undergo simple imprisonment
for a period of one year. The orders of the trial court
regarding fine and set off apply.
The appeal is allowed to the above extent.
Sd/-
P.G. AJITHKUMAR
JUDGE
SSK/28/05
