The appellant is the accused in S.C. No. 929 of 2008 on the file of
2. The Detective Inspector of C.B.C.I.D, Thiruvananthapuram
charge sheeted the accused for the offence under Section 489C IPC.
Station.
3. After committal, the trial court framed charge against the
and explained to the accused, he pleaded not guilty.
4. Thereafter, the prosecution examined PWs 1 to 3 and marked
Exhibits P1 to P7 and MO1 to prove the charge against the accused. No
evidence was adduced from the side of the accused. After hearing both
5. Heard Sri. Thareeq Anver, the learned State Brief representing
the appellant and Smt. Hasnamol N.S., the learned Public Prosecutor.
6. The learned State Brief representing the appellant argued that
genuine one. But, the learned Public Prosecutor argued that the evidence
knowledge that it is a counterfeit currency note.
7. The learned State Brief representing the appellant fairly
alone; but, it includes Dollar also and it applies to American Dollar bills.
"43. Section 489C deals with possession of forged or counterfeit
currency notes or bank notes. It makes possession of forged and
counterfeited currency notes or bank notes punishable. Possession
and knowledge that the currency notes were counterfeited notes are
necessary ingredients to constitute offence under Sections 489C
and 489D. As was observed by this Court in State of Kerala v.
Mathai Verghese and Ors. (AIR 1987 SC 33) the expression
'currency notes' is large and wide enough in its amplitude to cover
the currency notes of any country. Section 489C is not restricted to
Indian currency note alone but it includes dollar also and it applies
to American dollar bills.)"
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8. To attract the offence under Section 489C of IPC, the
prosecution has to establish that the accused was in possession of the
counterfeit 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. So, the pertinent question is whether there is
evidence to show that the accused was having the knowledge or reason
to believe that MO1 is a counterfeit Dollar at the time of the alleged
occurrence.
9. When the accused was questioned under Section 313
Cr.P.C., he stated that he is a headload worker at Thiruvananthapuram
airport and when foreigners reach there in groups, the headload workers
used to carry their luggage to the bus and on the date of occurrence, he,
along with four other headload workers, loaded the luggage of a group
of foreigners to a tourist bus and the said foreigners handed over a 100
Dollar bill to him towards the loading charges and subsequently, when
they examined the Dollar note after the tourist left the place, it was
found that the middle portion of the Dollar bill was torn and pasted and
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thereupon, the other four headload workers started a quarrel with the
accused and it was at that time, the Sub Inspector came there in a jeep
and took them to the Police Station. According to the accused, the other
headload workers were released and he was falsely implicated in this
case.
10. In Exhibit P1 mahazar, it is stated that when the Sub
Inspector and party reached the public road in front of
Thiruvananthapuram airport, they saw two persons quarrelling in
connection with the exchange of an American 100 Dollar note and the
accused told the Sub Inspector that the other person who quarrelled
with him is one Varghese.
11. PW1, Varghese, deposed that he is an auto driver; but, he
turned hostile to the prosecution and stated that the accused is not
known to him and he has no knowledge regarding the alleged
occurrence. PW1 denied making statement to the police as per Exhibit
P2 series.
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12. In Exhibit P1 mahazar, it is stated that the Sub Inspector
approached the Manager of the State Bank of Travancore to ascertain
the genuineness of the Dollar note and after examination, the Manager
of the Bank confirmed that it is a counterfeit dollar and thereafter, the
accused was arrested.
13. The learned State Brief representing the appellant pointed out
that in Exhibit P4 FIR, the name of the Manager of the said Bank is
originally recorded as T.K. Ramakrishanan Nair and the same is scored
out and in that place, it is recorded as Manager and the prosecution has
not made any attempt to examine the said Manager in this case.
14. PW2 also turned hostile to the prosecution and stated that
the accused is not known to him and he has not witnessed the alleged
occurrence. PW2 denied making statement to the police as per Exhibit
P3 series.
15. PW3 is the Sub Inspector who detected the offence. PW3
deposed that along with the Head Constable, he conducted night patrol
duty on 04.08.1987 and when they reached near airport, they saw
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people gathered there and on investigation, it is revealed that the
accused who is in possession of a 100 Dollar American note attempted to
exchange the same to one Varghese, and at that time, there occurred a
verbal altercation between them for the reason that the said note is not
a genuine one. According to PW3, along with the said persons, he
proceeded to the State Bank of Travancore Branch near the airport
terminal and there the note was examined by T.K. Ramakrishnan Nair,
an officer working there, and he informed them that the note is not
genuine and thereafter, they returned to the place of occurrence and
prepared Exhibit P1 mahazar.
16. In cross examination, PW3 stated that when he reached the
place of occurrence, the quarrel was relating to whether the Dollar was
original or not. According to PW3, about 10 or 12 persons gathered
there. He also admitted that the name T.K. Ramakrishan Nair is scored
out in Exhibit P4 FIR and that the said T.K. Ramakrishnan Nair is not
cited as a witness in this case. PW3 denied the suggestion that a
foreigner has given the Dollar note to the accused in connection with the
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work done by 5 or 6 persons together and subsequently, there occurred
a quarrel between them for receiving the note without proper verification
and it was at that time, the accused was taken to custody.
17. The learned State Brief pointed out that the trial court,
without taking note of the fact that the place of occurrence is a public
road near to the airport, recorded a finding that the accused, being a
porter in the airport, was bound to produce the necessary document
authorizing him to work as a porter in airport premises and it is not
possible for every Tom, Dick, and Harry to enter the airport and work as a
porter. Since the prosecution has no case that the occurrence was inside
the airport or in a restricted area, I find force in the argument of the
learned State Brief representing the appellant that the above
observation of the trial court is not justifiable in the circumstances of the
case, especially in view of the fact that the place of occurrence is a
public road near to the airport.
18. The prosecution was not able to examine the Investigating
Officer as he was no more at the time of trial. The only witness who
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supported the prosecution case is PW3, Sub Inspector who detected the
case. The evidence of PW3 in chief examination clearly shows that what
he deposed in chief examination relating to the possession of the
counterfeit Dollar note and the attempt of the accused to exchange the
note to one Varghese is based on the information which he collected
from the persons gathered there at the time of occurrence. In chief
examination, PW3 stated as follows:
"patrol സഞ്ചരിച്ചു വരവെ Air Port ന്റെ side ൽ ആൾക്കൂട്ടം കണ്ട് ചെന്ന്
നോക്കി. അന്വേഷിച്ചതിൽ ഒരു നൂറ് ഡോളർ അമേരിക്കൻ നോട്ട് കൈവശം
വച്ച് കാണപ്പെട്ട പ്രതിയെ (witness identifies the accused)
കൂടെയുണ്ടായിരുന്ന വർഗ്ഗീസ് എന്ന ആൾക്ക് കൈയ്യ്മാറ്റം ചെയ്യാൻ തുടങ്ങിയ
സമയത്ത് അതു വ്യാജ ഡോളറാണെന്ന തർക്കത്തിൽ നിൽക്കുന്നതായി
കാണപ്പെട്ടു. അപ്പോൾ സമയം 10 മണിയായി.
19. The trial court recorded a finding in paragraph 11 of the
impugned judgment as follows:
"The prosecution is at a handicap since the investigating officer is
no more and not available for examination. But PW3, who is
acquainted with the signature and handwriting of CW5 has
categorically given evidence that his as well as the statement of PW1
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and 2 were recorded by CW5 in the handwriting of CW5 himself.
The above evidence of PW3 stands unchallenged in cross
examination. So the material contradictions in the previous statement
of PW1 and 2 which were marked as Exts.P2 and P3 series stands
proved through PW3., since official acts are presumed to be done in
good faith unless proved otherwise. So this is also inconformity with
the prosecution case."
20. I find force in the argument of the learned State Brief
representing the appellant that the trial court is not justified in using the
portions of the 161 statement of PWs 1 and 2 as substantive evidence,
in as much as Section 162 of Cr.P.C imposes a bar on the use of any
statement made by any person to a police officer in the course of
investigation at any enquiry or trial in respect of any offence under
investigation at the time when such statement was made, except for the
purpose of contradicting the witness in the manner provided under
Section 145 of the Evidence Act.
21. As noticed earlier, when PWs 1 and 2 turned hostile, the
relevant portions of case diary statements were read over to them and
they were denied and therefore, the same are marked as Exhibits P2 and
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P3 series. It is true that the statements recorded under Section 161
Cr.P.C could be used to show that the witness had given different
versions: one before the police during the course of investigation; and
another before the court to argue that the evidence of the said witnesses
before the court cannot be relied upon; but under no circumstances, the
statement given by the witness to the police during investigation could
be used as substantive evidence, as held by the Honourable Supreme
Court in Hazari Lal v. State (Delhi Administration) [[(1980) 2 SCC
390], Baldev Singh v. State of Punjab [(1990) 4 SCC 692] and
Tahsildar Singh v. State of U.P [1959 Cri LJ 1231]
22. In this case, the learned Sessions Judge totally disregarded
the above legal position and placed reliance on the case diary
statements to accept the prosecution case in violation of the mandate of
Section 162 Cr.P.C.
23. It is well settled that simply because a counterfeit note is
seized from the possession of the accused, the offence under Section
489C IPC will not be attracted. To attract the offence under Section
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489C IPC, the prosecution has to establish that the accused was in
possession of forged or counterfeit note with the intention to use the
same as genuine or attempted to use the same as genuine. A perusal of
the questions put to the accused under Section 313 of Cr.P.C., would
show that no question indicating the conscious possession of the accused
or his intention to use the note as genuine is seen put to the accused. In
Anthru @ Abdurahiman v. State of Kerala [2020 (4) KHC 469], this
Court held in paragraphs 19 and 20 as follows:
"19. Moreover, as per S.313 of Cr.P.C, in every inquiry or trial,
any circumstances appearing in the evidence against an accused
should be put to him for enabling him to explain the same. In this
case, the Trial Court relied upon the evidence of PW8 and found
that he is a petty shop owner, and he will be able to identify MO2
and MO3 as counterfeit notes. The Court also perused MO2 and
MO3 and found that it is possible to distinguish the same from the
real currency notes and that it did not require any expert opinion.
According to the Trial Court, since the 1st accused is doing
business in aracanut gardens on lease and for that purpose
employed PW6, it can be presumed that there is reason to believe
that the 1st accused is a person who used to deal with 100 rupee
currency notes generally. In such a situation, according to the Trial
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Court, the reasonable inference is that the first accused knew or at
least have reason to believe that MO2 and MO3 are counterfeit
currency notes. Whether such an inference can be the basis of
conviction without putting the same to the accused under S.313
CrP.C is the question. The Apex Court in M. Mammutti's case
(supra) clearly stated that, if any question regarding these
circumstances is not put to the accused under S.342 Cr.P.C (the
present S.313 Cr.P.C) that is fatal to the prosecution. Similarly, in
Umashanker v. State of Chhattisgarh[2001 KHC 779 : AIR
2001 SC 3074 : 2001 (3) KLT 681 : 2001 (9) SCC 642 : 2001 CriLJ
4696], the Apex Court observed that if any specific question about
the currency note being fake or counterfeit was not put to accused
in examination under S.313 Cr.P.C, that is fatal to the prosecution.
This Court considered the importance of examining the accused
under S.313 Cr.P.C and the importance of the relevant questions to
be put to the accused in Crl.A No.856/2005. The relevant portion of
the judgment is extracted hereunder:
"28. In addition to this, another important aspect is that the compliance of
S.42(2) of the NDPS Act is not put to the accused under S.313 Cr.P.C. I
perused the S.313 Cr.P.C. statement of the accused. If the incriminating
materials are not brought to the notice of the accused while examining them
under S.313 Cr.P.C., the Court cannot use that part of the evidence to
convict an accused. The Apex Court in Inspector of Customs, Akhnoor,
Jammu and Kashmir v. Yashpal and another, 2009 (4) SCC 769 considered
this point. Paragraph 13, 16 and 17 of the above said judgment is extracted
herein below:
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"13. It is to be noted that the High Court did not accept the stand relating
to noncompliance with S.41(2) of the Act. It only interfered on the ground
that the relevant incriminating materials were not put to the accused when
they were being examined.
16. It is to be noted that in the instant case there was no reference to any
of the incriminating materials. If the foundation of the prosecution case was
the alleged confession before the Customs Authorities, that material was not
brought to the notice of the accused persons.
17. Above being the position, there is no infirmity in the impugned
judgment to warrant interference. The appeal is dismissed."
29. When the compliance of S.42(2) is an important evidence relied by the
prosecution and if it is not put to the accused under S.313 Cr.P.C., the same
cannot be relied by the Court to convict an accused."
20. In the light of the above judgments, it is clear that all the
circumstances against the accused should be put to the accused
under S.313 Cr.P.C enabling the accused to explain such
circumstances. I have perused the 313 statement of the accused in
this case. No question regarding the knowledge of the accused about
the counterfeit notes, when the same was in his possession, was put
to the accused under S.313 Cr.P.C. On that ground also, the accused
is entitled to the benefit of doubt."
24. It is well settled that the evidential burden that lies on the
prosecution is not discharged by the suggestions made to its witnesses
in cross examination. The suggestions put in cross examination are no
evidence at all against the accused and the prosecution cannot use them
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to fill in the gap in the evidence of the prosecution. In the present case,
the only witness who supported the prosecution case is PW3, Sub
Inspector who detected the offence, and his evidence in chief
examination itself indicates that what he disposed in chief examination is
based on the information which he collected from the persons gathered
there. The accused has got a specific case that he received the Dollar
from some foreigners when they loaded the luggage in a tourist bus and
that there occurred a quarrel between the accused and other porters
when they noticed that the middle portion of the Dollar bill was torn and
pasted.
25. The evidence of PW3, Sub Inspector, shows that he was also
not sure whether the Dollar note was genuine or counterfeit and he
approached the Manager of the State Bank of Travancore near the
airport for verifying the genuineness of the note. PW3 has no case that
the accused attempted to run away from the place and apart from MO1
Dollar note, no other contraband item was recovered from the
possession of the accused and therefore, considering the entire facts and
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circumstances of the case, I find that the appellant is entitled to the
benefit of doubt.
In the result, this appeal is allowed and the conviction and
sentence imposed by the trial court against the appellant/accused is set
aside and he is acquitted of the offence under Section 489C of IPC. The
bail bond executed by the appellant/accused shall stand cancelled and
he is set at liberty forthwith.
Sd/-
JOHNSON JOHN,
JUDGE.
Rv
