Kerala High Court
Mohanan vs State Of Kerala on 13 November, 2024
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CRL.A NO. 215 OF 2016
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024/22ND KARTHIKA, 1946
CRL.A NO. 215 OF 2016
(CRIME NO.18/2003 OF Thoppumpady Police Station, Ernakulam)
AGAINST THE JUDGMENT DATED 18.02.2016 IN SC NO.423 OF
2014 ON THE FILE OF COURT OF SESSION, ERNAKULAM
(CP NO.64 OF 2005 OF ADDL.JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KOCHI)
APPELLANT/ACCUSED NO.6:
MOHANAN
AGED 37 YEARS,S/O. NAGAPPAN, HOUSE NO. X/769,
AMARAVATHY DESOM, FORT KOCHI, COCHIN -682 001,
ERNAKULAM DISTRICT.
BY ADV SRI.JIMMY GEORGE (VATTATHARA)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE, IN CBCID SIG II, ERNAKULAM), REPRSENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.11.2024, THE COURT ON 13.11.2024 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Criminal Appeal No.215 of 2016
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Dated this the 13th day of November 2024
JUDGMENT
In this appeal under Section 374(2) Cr.P.C., the appellant who
is the 6th accused in S.C.No.423/2014 on the file of the Court of
Session, Ernakulam, challenges the conviction entered and sentence
passed against him of the offence punishable under Section 489C
read with Section 34 IPC.
2. The prosecution case is that on 01/02/2003 at about
10:30 a.m., the accused, who is the 6th accused in the crime, was
found in conscious possession of 15 counterfeit notes of the
denomination of ₹100/-. The place of occurrence is on the southern
side of the Amaravathy temple, Fort Kochi. The 6 th accused
obtained 20 fake currency notes from the 1st accused which in turn
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was given by the 3rd accused. The 6th accused possessed the notes
knowing the same to be counterfeit currency notes and in
furtherance of his common intention with the other accused of
using the same as genuine. Hence, the 6th accused as per the final
report was alleged to have committed the offences punishable under
Section 489B and 489C read with Section 34 IPC.
3. Crime No.18/2003 of Thoppumpady police station,
Ernakulam, was registered alleging the commission of offences
punishable under Section 489B and 489C read with Section 34 IPC.
There were 8 accused persons including the accused herein in the
crime. PW5, the Circle Inspector, Palluruthy police station, the
detecting officer arrested the 1st and the 2nd accused and seized
counterfeit currency notes from them and registered the aforesaid
crime. The 1st accused on questioning confessed that he had
entrusted 20 counterfeit notes of the denomination of ₹100/- to the
6th accused, Mohanan. Based on the disclosure statement given by
the 1st accused and as led by the 1 st accused, PW5 arrested the 6th
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accused and recovered 15 counterfeit currency notes of the
denomination of ₹100/-, that is, MO1 series, as per Ext.P1 seizure
mahazar. PW5 conducted the preliminary investigation. PW6, the
DySP, CBCID, SIG II, CFS, had completed the investigation. It was
CW26, who is no more, who had laid the final report/charge sheet
before the jurisdictional magistrate alleging the commission of the
offences punishable under the aforementioned sections.
4. All the accused persons except the 3rd accused and the
accused herein, that is, the 6th accused, appeared before the
jurisdictional magistrate. The 3rd accused was shown as absconding
in the final report. After complying with the necessary formalities
as contemplated under Section 209 Cr.P.C., the magistrate
committed the case against A1, A2 and A4 to A6 to the Court of
Session, Ernakulam. The case was taken on file as S.C.
No.288/2006. However, the accused herein failed to appear before
the trial court and hence the case against him was split up and
refiled as S.C. No.423/2014. The trial court as per judgment dated
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15/09/2010 in S.C. No.288/2006 acquitted A1, A2, A4, A5, A7 and
A8 under Section 235(1) Cr.P.C. The case against the 6 th accused
was initially transferred to the L.P. Register as L.P. No.8/2012.
Thereafter, the accused surrendered before the trial court. On
01/01/2015, a charge under Section 489B and 489C read with
Section 34 IPC was framed, read over and explained to the accused
to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 6 were examined
and Exts.P1 to P13 and MO1 series were got marked in support of
the case. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit the
accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
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documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offence
punishable under Section 489C read with Section 34 IPC and hence
sentenced him to rigorous imprisonment for 4 years. He has been
acquitted under Section 235(1) Cr.P.C. for the offence punishable
under Section 489B read with Section 34 IPC. Set off under Section
428 Cr.P.C. has been allowed. Aggrieved, the accused, namely, the
6th accused in the crime, has come up in appeal.
8. The only point that arises for consideration in this case is
whether the conviction entered and sentence passed against the
accused by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that the evidence on record is totally insufficient
and unsatisfactory to find the accused guilty of the offence charged
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against him. All the other accused, namely, A1, A2, A4, A5, A7 and
A8 have been acquitted as per the judgment dated 15/09/2010 in
S.C. No.288/2006. There are no independent witnesses to support
the prosecution case. The only testimony is that of PW3 and PW5,
the official witnesses. The testimony of the said witnesses are
inconsistent and not creditworthy. In addition, there is considerable
and inordinate delay in producing MO1 series before the court. In
such circumstances, the accused is entitled to the benefit of doubt,
goes the argument.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that there is ample and sufficient evidence to find the
accused guilty of the offence for which he has been convicted and
hence no interference into the impugned judgment is called for.
11. I briefly refer to the evidence on record relied on by the
prosecution in support of the case. PW1, an independent witness,
deposed that he is conducting a laundry shop at Amaravathy, Fort
Kochi. The accused is running a gold jewellery shop near his shop.
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The police had come to the shop of the accused and prepared
Ext.P1 mahazar in which he is an attester. He is unaware of the
purpose for which Ext.P1 was prepared. He did not see anything or
show anything to the police. The mahazar was prepared when
counterfeit notes were seized. He did not see the police seizing
counterfeit notes. At the request of the prosecutor, the witness was
declared hostile and the prosecutor was permitted to put questions
as put in the cross-examination. On further examination, PW1
denied having given any statement to the police that he had seen the
police seizing counterfeit notes from the accused. The
contradictions in his statement have been marked as Exts.P2 and
P3. In the cross-examination, PW1 deposed that Amaravathy
temple is half a kilometer away from his shop. The shop of the
accused is situated adjacent to his shop. According to PW1, the
police used to come to the shop of the accused for weighing gold
ornaments.
11.1. PW2, another independent witness, deposed that he is
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conducting a provision shop at Amaravathy, which again is situated
adjacent to the shop of the accused. The police came to the shop of
the accused and prepared Ext.P1 in which he is an attester. He does
not know the purpose for which the mahazar was prepared. As PW2
turned hostile to the prosecution, the prosecutor was permitted to
put questions as put in the cross-examination. PW2 denied having
stated to the police that he had seen counterfeit notes being seized
from the accused. The contradiction brought out has been marked
as Ext.P4.
11.2. PW3 deposed that during 2002, he was working as a
Constable in the office of PW5, the Circle Inspector, Palluruthy. On
31/03/2003 at 03:00 p.m., as directed by PW5, he accompanied the
former and his team to Polakkandam market. PW5 arrested the 1st
and the 2nd accused and seized counterfeit notes from them at which
time Ext.P5 seizure mahazar was prepared, in which he is an
attester. Ext.P5 mahazar was prepared by him as per the instructions
given by PW5. Thereafter, PW5 arrested A4 to A6 and seized
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counterfeit notes from them also. When the counterfeit notes were
seized, he had prepared mahazar which was also on the instructions
of PW5. According to PW3, MO1 series are the 15 counterfeit
notes seized from the accused herein. When MO1 series were
seized, Ext.P1 seizure mahazar was prepared. In the cross-
examination, PW3 deposed that when the 6th accused was
apprehended, the 1st and the 2nd accused were also present. He
deposed that he does not remember going to the shop of the
accused. Ext.P1 was prepared at the side of the road on the western
side of Amaravathy temple. PW3 also deposed that after the
counterfeit notes were seized, they were wrapped in a paper, tied
with twine and sealed.
11.3. PW5 deposed that from January 2002 to March 2004,
he was the Circle Inspector, Palluruthy. On 31/01/2003, he received
reliable information that transaction in counterfeit notes was going
on near the market in Polakkandam. The identification marks of the
two persons conducting the transactions was also obtained.
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Therefore, he along with party proceeded to the aforesaid place and
reached there by about 03:15 p.m. He identified the said two
persons, restrained and questioned them. He informed the people
who had gathered there that he wanted to conduct a body search of
the said persons and so requested the presence of two witnesses.
Two persons came forward. The said witnesses frisked/searched
him and the members of his team and were convinced that they
were not in possession of any counterfeit notes. Thereafter, he
searched the body of the two persons, that is, the 1st and the 2nd
accused, and on search found counterfeit notes in their possession
which were seized as per Ext.P5 seizure mahazar. Crime
No.18/2003 was registered, that is, Ext.P8 FIR. The 1st and the 2nd
accused were arrested and on questioning the 1 st accused confessed
that he had given 20 notes of the denomination of ₹100/- to the 6th
accused, that is, the accused herein and that if he is taken, he would
point out the 6th accused. On the basis of the said statement of the
1st accused, PW5 along with the latter proceeded to Amaravathy.
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When they reached near the temple, they found the 6th accused
standing on the south western side of the temple. The 1 st accused
identified the 6th accused. The 6th accused admitted that the 1st
accused had given him 20 counterfeit notes of the denomination of
₹100/- out of which he had already spent 5 notes. The 6th accused
produced the remaining 15 notes from his pocket. The notes were
seized as per Ext.P1 mahazar and the 6th accused arrested. PW5
produced MO1 series notes before the court as per Ext.P10 property
list. The disclosure statement of the 1st accused has been marked as
Ext.P1(a). In the cross-examination, PW5 admitted that he
understood that the accused was conducting a gold jewellery shop.
He had neither gone to the shop nor to the house of the accused. He
admitted that the records reveal that MO1 counterfeit notes were
received by the court on 20/02/2003. He does not know who was in
possession of MO1 notes for the period from 01/02/2003 till
20/02/2003. The notes were not packed or sealed. He denied the
suggestion that the accused has been falsely implicated as the latter
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refused to handover gold in a theft case for effecting recovery under
Section 27 of the Evidence Act.
11.4. PW6 deposed that from 27/07/2004 till 10/06/2005, he
was working as DySP, CBCID, SIG II, CFS. He questioned some of
the witnesses in the case. The counterfeit currency notes seized in
the case were forwarded to the press at Nasik as per a forwarding
note submitted by CW23, DySP, CBCID, who is now no more. The
copy of the forwarding note and covering letter have been marked
as Ext.P11 series. Exts.P12 and P13 are the reports obtained after
examination of the notes forwarded which show that the notes
seized are counterfeit notes. PW6 also deposed that after
completing the investigation, he had submitted a factual report,
which report was approved on the basis of which CW26, DySP,
submitted the final report before the jurisdictional magistrate.
12. Now the question is whether the aforesaid evidence is
sufficient to prove beyond reasonable doubt the prosecution case
that the accused committed the offence punishable under Section
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489C IPC. As noticed earlier, PWs 1 and 2, the independent
witnesses, do not fully support the prosecution case. They admit
that they are the attesters in Ext.P1 mahazar. However, they deny
having witnessed the seizure of MO1 notes. Their definite case is
that Ext.P1 mahazar was prepared at the shop of the accused.
However, PWs 3 and 5 have no such case. According to the official
witnesses, the accused herein was apprehended from near the
temple at Amaravathy. According to PW1, the temple is situated
half a kilometer away from his shop and the shop of the accused is
situated adjacent to his shop. As per the final report, the place of
occurrence is the southern side of Amaravathy temple. However,
according to PW3, the accused was apprehended from the western
side of the temple. PW5 has yet another case. He deposed that the
accused had been apprehended from the south-western side of the
temple. Therefore, the prosecution case relating to the place of
occurrence has not been proved by satisfactory evidence.
13. PW3 has a definite case that the counterfeit notes, that
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is, MO1 series, which were seized from the accused had been
wrapped in a paper, tied and sealed. However, PW5 has no such
case. This itself raises doubt as to whether PW3 was actually in the
team of PW5 as claimed by the prosecution. Further, the seizure of
MO1 series is apparently not under Section 27 of the Evidence Act.
According to the trial court, even if it is not a recovery as
contemplated under Section 27 of the Evidence Act, it is admissible
under Section 8 of the Evidence Act. But the inconsistent testimony
of PWs 3 and 5 raise several doubts regarding the prosecution case.
14. There is yet another reason which raises doubts
regarding the prosecution case. The accused is alleged to have been
arrested and MO1 series seized on 01/02/2003. However, MO1
series is seen produced before the court only on 20/02/2003. Even
according to PW5, the notes were not packed or sealed. PW5 has
taken an irresponsible stand in the box by stating in his cross-
examination that he is unaware as to who was in possession or in
custody of MO1 series for the period from 01/02/2003 till
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20/02/2003. It is true that the serial number of the counterfeit notes
are referred to in Ext.P1 mahazar also. Ext.P1 mahazar is seen
produced before the court on 01/02/2003. But, MO1 series alleged
to have been seized on 01/02/2003 is seen produced before the
court as per Ext.P10 property list on 20/02/2003. No reasons have
been given by the prosecution as to why MO1 series were not
produced before the court along with Ext.P1 mahazar. All these
aspects raise doubts regarding the prosecution case and hence I find
that the prosecution has failed in establishing the guilt of the
accused beyond reasonable doubt, and so he is entitled to the
benefit of doubt.
In such circumstances, the appeal is allowed. The impugned
judgment is set aside. The conviction and sentence passed in
S.C.No.423/2014 against the accused (A6) under Section 489C read
with Section 34 IPC is set aside. The accused is acquitted under
Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall
stand cancelled.
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Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
NP
