Kerala High Court
Cheriyan vs The State Of Kerala on 26 September, 2024
Crl.Appeal No.44 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
CRL.A NO. 44 OF 2016
CRIME NO.299/91 OF CBCID, THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM
FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE DATED
08/01/2016 IN S.C.NO.741/2006 BY THE COURT OF ADDITIONAL
SESSIONS JUDGE-II, THIRUVANANTHAPURAM, WHICH AROSE FROM
CBCID (CFS) CRIME NO.299/CR/91 CBCID, THIRUVANANTHAPURAM
APPELLANTS/ACCUSED (A3) TO (A5):
1 CHERIYAN
S/O.ABRAHAM,
MOOLEKATHIL VEEDU,
UDUMPANCHOLA
2 GEORGE
S/O.POULOSE,
NEDIYAVILA VEEDU,
PATHANAPURAM.
3 GOPALAKRISHNAN PILLAI
S/O.NARAYANA PILLAI,
PUTHEN VEEDU,
ARAYOOR, KOLLAM.
BY ADVS.
SRI.S.V.PREMAKUMARAN NAIR
SMT.M.BINDUDAS
SRI.R.T.PRADEEP
P.S.ANJU
Crl.Appeal No.44 of 2016
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RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SR.P.P SRI.VIPIN NARAYAN.
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 23.09.2024, THE COURT ON 26.09.2024 DELIVERED THE
FOLLOWING:
Crl.Appeal No.44 of 2016
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C.S.SUDHA, J.
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Crl.Appeal No.44 of 2016
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Dated this the 26th day of September 2024
JUDGMENT
In this appeal filed under Section 374 (2) Cr.P.C., the
appellants who are accused no.3 to 5 in S.C.No.741/2006 on the
file of the Court of Session, Thiruvananthapuram challenge the
conviction entered and sentence passed against them for the
offence punishable under Section 489C read with Section 34 IPC.
2. The prosecution case is that the accused
persons, five in number, in furtherance of their common intention
to use and deal in counterfeit currency notes, were found in
possession of several such notes of the denomination of ₹10/-,
which were seized on 15/03/1991 and 10/07/1991. On
14/03/1991, the first accused (A1) was found in suspicious
circumstances at the Mandapam at Poojappura and on search was
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found to be in possession of 31 counterfeit currency notes of the
denomination of ₹10/-. On the basis of the information given by
A1, several printed paper sheets containing the impression of the
currency notes of the denomination of ₹10/- was found concealed
in the house of the second accused(A2) on 15/03/1991 at 03:00
a.m. On the basis of the information received, the police
proceeded to the house of the 5th accused (A5) in whose house,
the 3rd (A3) and the 4th accused (A4) were found. Several printed
sheets containing the impression of currency notes of the
denomination of ₹10/- were found concealed beneath a cot in one
of the rooms of the house of A5. The same was seized on
15/03/1991 at 03:45 a.m. A5 on 10/07/1991 was found in
possession of 31 counterfeit currency notes of the denomination
of ₹10/-. Hence as per the final report, the accused were alleged
to have committed the offences punishable under Sections120B,
489B, 489C read with Section 34 IPC.
3. On completion of investigation, the final report
was submitted before the Additional Chief Judicial Magistrate,
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Thiruvananthapuram. The first accused died and hence the case
against him stood abated. A3, A4 and A5 appeared before the
jurisdictional magistrate. A2 never appeared and hence the case
against him was split up and refiled. After completing the
necessary formalities, the case against A3, A4 and A5 were
committed to the Court of Session, Thiruvananthapuram.
Thereafter, the case was made over to the Additional Sessions
Judge-II, Thiruvananthapuram for trial and disposal.
4. On 27/06/2015, a charge under Sections 120B,
489B, 489C read with Section 34 IPC was framed, read over and
explained to A3, A4 and A5 to which they pleaded not guilty. On
behalf of the prosecution PW1 to PW11 were examined and
Exts.P1 to P22 and M.O.1 series to M.O.14 were got marked in
support of the case. After the close of the prosecution evidence
A3, A4 and A5 were questioned under Section 313(1)(b) Cr.P.C.
with regard to the incriminating circumstances appearing against
them in the evidence of the prosecution. They denied those
circumstances and maintained their innocence.
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5. As the trial Court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. DW1 was examined on behalf of the accused.
6. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment convicted and sentenced A3, A4 and A5 to
undergo rigorous imprisonment for five years and to a fine of
₹50,000/- and in default of payment of fine to rigorous
imprisonment for a period of two months for the offence
punishable under Section 489C read with Section 34 IPC. They
have been acquitted for the offences punishable under Sections
120B, 489B read with Section 34 IPC. Aggrieved, A3, A4 and A5
have come up in appeal.
7. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against A3, A4 and A5 by the trial court are sustainable or not.
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8. Heard both sides.
9. It was argued on behalf of the appellants/A3, A4
and A5, that the evidence on record is totally unsatisfactory to
prove the offence alleged against them. None of the ingredients of
Section 489C IPC are attracted in this case and hence the trial
court went wrong in finding the accused persons guilty for the
offence punishable under Section 489 C IPC. Per contra, it was
submitted by the learned Senior Public Prosecutor that the
evidence on record is satisfactory and there are no reasons to
disbelieve the prosecution witnesses which include an
independent witness also and so no grounds for interference are
made out.
10. I briefly refer to the evidence on record relied on
by the prosecution in support of the case. PW1 admitted that he is
an attestor to Ext.P6 search list which is stated to have been
prepared when the house of A5, Gopalakrishnan Pillai, was
searched. PW1 identified A5 in the box, but denied having seen
any search or seizure from the house of A5.
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10.1. PW2 failed to identify any of the accused in the
dock. However, he admitted that he is an attestor to Ext.P7
mahazar, which according to the prosecution, was prepared by the
police when counterfeit currency notes were recovered from the
person of A5.
10.2. PW3, a two wheeler mechanic, deposed that on
10/07/1991 at about 06:30 p.m. while he was returning home, the
police approached him and asked him whether he had seen A5
Gopalakrishnan Pillai. He answered that A5 Gopalakrishnan
Pillai was present at the junction. He followed the police team,
who proceeded to the junction and apprehended A5, at which time
several people had gathered at the spot. On search of the body of
A5, the police found 31 currency notes of the denomination of
₹10/-, which on examination were found to be counterfeit. The
police seized the counterfeit notes as per Ext.P7 mahazar. PW3
identified the counterfeit notes marked as M.O.1 series. PW3 also
identified A5 in the dock. In the cross examination, PW3 deposed
that PW2 is also an attestor to Ext.P7 mahazar. PW3 admitted his
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signature in the summons received from the court. To a further
question whether Ext.P7 seizure mahazar contained his signature,
he answered in the affirmative. However, when he was asked to
identify his signature on being shown Ext.P7 mahazar and the
summons, he indicated the signature in the summons only.
10.3. PW4 deposed that on 14/03/1991 he was one of
the members in the team of PW9, Sub Inspector, Crime Special
Squad. By about 09:30 p.m, on the basis of the information
received by PW9, they reached the Mandapam at Poojappura.
There they saw A1 under suspicious circumstances. PW9
questioned A1 and conducted a body search. On search, PW9
found a paper packet in the pant pocket of A1 which on inspection
was found to contain 37 currency notes of the denomination of
₹10/-. The notes were found to be counterfeit. The formalities
were completed and a crime was registered. On 15/03/1991 at
03:45 a.m., he accompanied PW11 another Sub Inspector and his
team to the house of A5 Gopalakrishnan Pillai and conducted a
search therein. A paper packet was found below the cot in the
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southern room, which on examination was found to be paper
sheets on which currency notes of the denomination of ₹10/- was
found printed. A3 and A4 were found in the house. On
questioning A3 and A4, they admitted to be agents of A5. PW4
identified the MO.2 series and MO.3 series currency notes seized
from A1 as well as MO.6 series to MO.12 series, the sheets of
paper in which the currency notes were found printed and seized
from the house of A5. In the cross examination PW4 admitted that
MO.6 series to MO.12 series were found printed only on one
side.
10.4. PW5 Secretary, Edamulackal Grama Panchayath
deposed that as requested by the DySP, Crime Branch, he had
issued Ext.P11 residence certificate as per which building bearing
no.774 situated in ward no.XI of Edamulackal grama panchayath
during the period 1991-92 stood in the name of N.Narayana Pillai
(father of A5).
10.5. PW6 the brother-in-law of A5 Gopalakrishnan
Pillai, turned hostile and denied having given any statement to the
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police or having witnessed the police seize any counterfeit notes
from the house of A5.
10.6. PW7, the then Head Constable, Poojappura
police station deposed that on 14/03/1991 at 09:40 p.m., on the
basis of Ext.P13 report of PW9 he registered crime no.48/1991,
Poojappura police station, that is, Ext.P14 FIR alleging
commission of the offence under Section 489 C IPC against A1.
10.7. PW8, the then Sub Inspector, CFS Unit,
Thiruvananthapuram deposed that on 10/07/1991, he had
accompanied CW25, the Detective Inspector, CBCID (CFS Unit),
Thiruvananthapuram for investigation and in connection with the
same, had gone to the house of A5 Gopalakrishnan Pillai. Though
the house was searched nothing could be seized. Their further
inquiries revealed that A5 was available at Uliyakovil Junction.
They proceeded to the said spot where they found A5 at about
07:30 p.m. A5 was identified and on search of his body, he was
found to be in possession of 31 counterfeit currency notes of the
denomination of ₹10/-. CW25 seized the counterfeit currency
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notes, that is, MO.1 series as per Ext.P7 mahazar in which he is
an attestor.
10.8. PW9, the Sub Inspector, Crime Special Squad,
Thiruvananthapuram deposed that on 14/03/1991 he received
reliable information that a person was dealing with counterfeit
currency notes near the Mandapam at Poojappura. He along with
PW11 another Sub Inspector and team proceeded to the said
place. They reached the said spot at about 09:30 p.m., where they
found A1 under suspicious circumstances. On questioning A1, he
did not give any satisfactory answers and therefore a body search
of A1 was conducted. On search, he found a paper packet inside
the right pant pocket of A1. On opening the packet, he found 31
counterfeit currency notes of the denomination of ₹10/-. He
seized the currency notes as per Ext.P15 seizure mahazar. He
arrested A1, proceeded to the police station along with A1 and the
counterfeit currency notes and submitted Ext.P13 report on the
basis of which the crime was registered. On questioning A1, it
was revealed that A1 had received the counterfeit notes from A2
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and that it was A5 who had given it to A2. He prepared Ext.P16
search memo for conducting search in the house of A2 and A5.
He directed PW11 to conduct search in the house of A5. A3 and
A4 were arrested by PW11. Several sheets containing the
impression of currency notes were seized from the house of A5.
The counterfeit currency notes seized from A1 were produced
before the court as per Ext.P18 property list. Thereafter, A1 to A4
were produced before the court along with Ext.P20 remand report.
He also identified MO.2 to MO.5 series. According to him,
further investigation was handed over to the Crime Branch.
10.9. PW10, the Detecting Inspector, CFS Unit,
CBCID deposed that in September 2000, he conducted
investigation in this case, questioned the witnesses and recorded
their statements. Thereafter, the investigation was taken over by
CW28.
10.10. PW11, Sub Inspector, District Crime Records
Bureau deposed that on 14/03/1991 on the basis of reliable
information received by PW9, they had proceeded to the
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Mandapam at Poojappura, and reached there by about 09:30 p.m.
There they found A1, who on questioning failed to give any
satisfactory answers. On search of the body of A1, they found 35
counterfeit currency notes, which were seized and produced
before the SHO, Poojappura on the basis of which the crime was
registered. The investigation of the case was entrusted to him
and PW9. On questioning, A1 confessed regarding the
complicity of A5 in the crime. Therefore, as instructed by PW9
he searched the house of A5. Ext.P6 search list was prepared on
15/03/1991 at 03:45 a.m. at the house of A5. At that time A3 and
A4 were present at the said house. He arrested A3 and A4. PW11
identified MO.11 series and MO.12 series. The investigation of
the case was transferred to CBCID. Thereafter, from March 2001
till April 2004 he worked as DySP, CBCID, CFS Unit,
Thiruvananthapuram. He had then taken over the investigation of
the case, completed the investigation and submitted the charge
sheet before the court. His investigation revealed that the offence
under Section 120 IPC was also made out and therefore he
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submitted Ext.P21 report regarding the same. The counterfeit
currency notes seized in the case were forwarded to Note Press,
Nashik for expert opinion. Ext.P22 is the report received which
says that the currency notes seized are counterfeit.
11. DW1 is the wife of A5. DW1 deposed that from
1973 onwards she along with her husband had been residing at
Vijaya Bhavanam, Vilakkudy, Kunnicode, Kollam. Ext.D1 is the
ration card for the period from 1985. Ext.D2 is the invoice
relating to the electricity connection of the said house. DW1 was
examined to disprove the prosecution version regarding the
residential building referred to in Ext.P11 residential certificate.
12. As noticed earlier, A3, A4 and A5 have been
found guilty for the offence punishable under Section 489 C IPC
only. As per Section 489C IPC, whoever has in his possession
any forged or counterfeit currency-note or bank-note, knowing or
having reason to believe the same to be forged or counterfeit and
intending to use the same as genuine or that it may be used as
genuine, is liable to be punished with imprisonment of either
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description for a term which may extend to seven years, or with
fine, or with both. The question is, whether the materials on
record referred to herein above, is sufficient to find A3, A4 and
A5 guilty of the offence punishable under Section 489C IPC. The
only evidence to rope in A3 and A4 in the crime is their alleged
presence in the house of A5 when the search and seizure of MO.6
series to MO.12 series is alleged to have been effected. Apart
from the testimony of PW4 and PW11, both official witnesses,
there is no independent evidence to connect A3 and A4 with the
crime. A3 and A4 have taken a stand of complete denial. It is
true that they have not furnished any explanation for their
presence in the house of A1 at that untimely hour. But the mere
presence of A3 and A4, even assuming that they were present in
the house of A5, would not be sufficient to find them guilty of the
offence under Section 489C IPC. However, that is not the case of
A5.
13. PW3, an independent witness, has deposed
regarding the search and seizure of MO.1 series counterfeit
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currency notes from the possession of A5. The testimony of PW3
has not been discredited in any way. It was pointed out by the
learned counsel for A5 that the testimony of PW3 is not
satisfactory to prove the case against A5. My attention was drawn
to the cross examination of PW3 where he identified his signature
in the summons but failed to identify his signature in Ext.P7
mahazar, to which evidence I have already adverted to. However,
that alone is not sufficient to disbelieve or discard his entire
testimony. A whole reading of the testimony of PW3 shows that
he did witness the police searching as well as seizing MO.1 series
currency notes from the person of A5 on the relevant day. The
fact that the notes seized are counterfeit has been proved by
Ext.P22 report. There is no reason why PW3 should depose
falsehood against A5. The prosecution case regarding the
recovery of several sheets of paper found with the impression of
the currency note of the denomination of ₹10/- from the house of
A5 is certainly not satisfactory. Ext.P11 residential certificate is
inadmissible in evidence as it can be considered only to be a
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statement in writing given by PW5 to the investigating officer
during the course of investigation and hence the bar under Section
162 Cr.P.C. is clearly attracted. Apart from Ext.P11 as per which
the house belongs to the father of A5, there is no material to
connect A5 to the house. The evidence regarding the seizure is
also not quite satisfactory. However, the presence of A5 on
10/07/1991 near the Mandapam at Poojappura, the search and
seizure of M.O.1 series currency notes from his possession stands
proved by the materials on record.
14. It was submitted by the learned counsel for
A5/the appellant relying on the dicutm in Anthru @
Abdurahiman v. State of Kerala, 2020 (3) KLJ 962 and
Premchand v. State of Maharashtra, (2023) 5 SCC 522 that
even assuming that A5 was found in possession of M.O.1 series
counterfeit notes, there is no material to prove the mens rea
required under Section 489C IPC. No questions were put to A5
during questioning under Section 313 Cr.P.C. to this effect and
therefore the ingredients under Section 489C IPC does not stand
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proved. I went through the questions put to A5 while questioned
by the trial court under Section 313 Cr.P.C. When the testimony
of PW3 to the effect that 31 currency notes of the denomination of
₹10/- had been seized by the police from A5 and that the former is
an attestor to Ext.P7 seizure mahazar prepared when the notes
were seized was put to A5, he answered that the same is false. A5
pleaded ignorance when he was told that PW3 had also testified
that MO.1 series are the notes seized from him on the said day.
His attention was also drawn to the testimony of PW8 who
deposed that he had seized MO1 series (31 in number) counterfeit
currency notes of the denomination of ₹10/- from A5 on
10/07/1991 and that PW3 is a witness to the search and seizure, to
which A5 pleaded ignorance. Ext.P22 report of the expert
received from the currency Note Press, Nashik was also put to A5
and told that the notes seized on examination were found to be
counterfeit, to which also A5 pleaded ignorance. A5 never had a
case that he was unaware or ignorant that the notes seized from
him were counterfeit. There is no doubt that the burden is always
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on the prosecution to prove the case and establish all the
ingredients of the offence alleged against the accused. The
accused can remain silent without adducing evidence to establish
his innocence. A5 was found in possession of MO.1 series, that
is, 31 counterfeit currency notes of the denomination of ₹10/-. It
was not just one stray counterfeit note from among genuine
currency notes that had been seized from A5. No explanation is
given by A5 regarding the presence of such number of counterfeit
notes in his possession. He does not have a case that the notes
had been given to him by somebody else and that he had received
and kept the same under the bona fide impression and belief that
they were genuine notes. Therefore the argument that there was
no conscious possession of the counterfeit notes cannot be
accepted. In these circumstances, I find that the finding of the
trial court regarding the commission of the offence punishable
under Section 489C IPC by A5 is correct and requires no
interference. However, the evidence regarding the complicity of
A3 and A4 in the crime is not proved by satisfactory evidence. In
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such circumstances, the finding of the trial court regarding the
guilt of A3 and A4 needs to be interfered with.
15. The offence under Section 489C IPC is
punishable with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both. The
maximum sentence that can be awarded for the offence is seven
years. Therefore, taking into account the age of A5; the fact that
he is a first offender as well as the extent of the adverse effect that
could have been caused to the society had MO.1 counterfeit notes
recovered from A5 been circulated, I am of the considered
opinion that substantive sentence of one year rigorous
imprisonment would serve the ends of justice.
16. In the result, the appeal is partly allowed. The
conviction of A5 for the offence punishable under Section 489C
IPC by the trial court is confirmed. However, the substantive
sentence of five years is reduced to rigorous imprisonment for one
year. The conviction and sentence passed against A3 and A4 is set
aside and they are acquitted under Section 235(1) Cr.P.C. They
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are set at liberty and their bail bonds shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
