Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 CRL.A.No.1573 OF 2005 AGAINST THE ORDER/JUDGMENT IN SC 890/2002 DATED 31-08-2005 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM
APPELLANT/3RD ACCUSED: SISIN MIRANDA S/O HENDRY MIRANDA,HOUSE NO.1253, VELLIKKAKATHU VEEDU, PALLITHURA WARD, ATTIPARA VILLAGE. BY ADVS. SRI.SUMAN CHAKRAVARTHY SRI.SANDEEP T.GEORGE RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.K.B UDAYAKUMAR (SR.PP) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020, ALONG WITH CRL.A.1575/2005, CRL.A.1581/2005, CRL.A.1584/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 CRL.A.No.1575 OF 2005 AGAINST THE ORDER/JUDGMENT IN SC 890/2002 DATED 31-08-2005 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM
APPELLANT/ACCUSED (A4): SHAHABUDEEN @ SALI S/O MOITHEEN KUNJU TC 48/1090, KARIMBUVILA, MUTTATHARA VILLAGE, POONTHURA WARD. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT/COMPLAINANT: STATE OF KERALA BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.K.B UDAYAKUMAR (SR.PP) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020, ALONG WITH CRL.A.1573/2005, CRL.A.1581/2005, CRL.A.1584/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 CRL.A.No.1581 OF 2005 AGAINST THE ORDER/JUDGMENT IN SC 890/2002 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM APPELLANT/SECOND ACCUSED: JOSEPH S/O JOHN WRONGLY SHOWN AS RESIDING AT HOUSE NO.677,678 WARD NO.2, SREEKARIYAM PANCHAYAT FROM MANJAMKOTTU, NEAR MANVILA CHURCH, ATTIPRA PANCHAYAT, ATTIPRA VILLAGE BUT RESIDING IN, JULY VILAS, MANVILA SETTLEMENT COLONY, KULATHOOR P.O, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/COMPLAINANT: STATE REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL,HIGH COURT BUILDING, ERNAKULAM. (DEPUTY SUPERINTENDENT OF POLICE, CBCID,, THIRUVANANTHAPURAM). R1 BY SRI.K.B UDAYAKUMAR (SR.PP) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020, ALONG WITH CRL.A.1573/2005, CRL.A.1575/2005, CRL.A.1584/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 CRL.A.No.1584 OF 2005 AGAINST THE ORDER/JUDGMENT IN SC 890/2002 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM
APPELLANT/ACCUSED 1: APPUKUTTAN NAIR S/O VASUDEVAN PILLAI T.C.41/2008, NEAR MANACAUD MARKET, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY SRI.K.B UDAYAKUMAR (SR.PP) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020, ALONG WITH CRL.A.1573/2005, CRL.A.1575/2005, CRL.A.1581/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[ CRL.A.1573/2005, CRL.A.1575/2005, CRL.A.1581/2005, CRL.A.1584/2005 ] Dated this the 30th day of November 2020 These appeals are filed by accused Nos.1 to 4 in Sessions Case No.890/2002 on the file of the First Additional Sessions Judge, Thiruvananthapuram.
2. The above case is charge sheeted against 7 persons alleging offences punishable under Sections 120B, 489A,489B,489C and 489D read with Section 34 of the Indian Penal Code.
3. The trial court convicted accused Nos.1
to4 in this cases. The first accused filed Crl.A.No.1584/2005, second accused filed Crl.A.No.1581/2005, 3rd accused filed
Crl.A.No.1573/2005 and the fourth accused filed Crl.A.No.1575/2005. When these Criminal Appeals came up for consideration, this Court directed the learned Public Prosecutor to find out the criminal antecedents of the appellants, who are convicted by the trial court. The learned Public
Prosecutor filed a memo informing that the appellants in Crl.A.No. 1575/2005 and the appellants in Crl.A.No.1573/2005 are no more. The learned Public Prosecutor submitted that, there is no criminal antecedents against the appellants in Crl.A.No.1581/2005 and
Crl.A.No.1584/2005.
4. The prosecution case is that, on
30.10.1990 at about 01:30 p.m PW18 along with PW9 and PW10 got reliable information that, the person named by Appukkuttan had come in front of the City Corporation office, Thiruvananthapuram with counterfeit currency notes for transacting the same. PW18 along with PW9 and PW10 went to the premises of the Corporation Office and while they were watching to trace out the person they found the first accused standing in the gate of
the corporation office in the manner of expecting somebody. PW18 and his party approached him and after ascertaining his identity searched his body. In that search a plastic cover was found from his waste as tucked in his dhoty and on examining the same it was found to contain five sheets of counterfeit currency notes each of 10 Rupees denomination. The same is marked as MO9 and MO10 before the lower court. These counterfeit currency notes were seized as per Exhibit P1 Mahazar. PW18 reached the nearby police station, which is Museum Police Station and Crime No.309/1990 is registered against the first accused under Section 489 (C)of I.P.C. Exhibit P.20 is the FIR. Thereafter, the superior officer of PW18 authorized him to continue the investigation as per Exhibit P.21 order. As authorized by Exhibit P.21 order, PW18 continued with the investigation. He instructed the PW9 and PW10 to search the house of the 2nd and 3rd accused simultaneously. PW18 also searched the house of the 4th accused. PW9 searched the house of the 2nd accused after preparing and sending Exhibit P.22 search memo. PW9 after searching the house of the 2nd accused prepared Exhibit P3 search
list, and as per the same he seized partly processed counterfeit currency notes, which is produced before the lower court as MO1 to MO4. PW10 searched the house of 3rd accused for which he prepared and sent Exhibit P23 search memo. PW 10 seized partly processed counterfeit currency notes of rupees 10 denomination from the house of 3rd accused, and the same was seized as per Exhibit P10 search list. MO5 to MO7 are the notes seized from the house of the 3rd accused.
PW18 searched the house of 4th accused and Exhibit P24 is the search memo and Exhibit P25 is the search list. Nothing was recovered from the house of the 4th accused.
5. It is the further case of the prosecution that based on the confession statement of the 4th accused MO- 11 series and MO 16 to 21 series
were seized as per Exhibit P26 Mahazar and as per Exhibit P28 search list. It is the further case of the prosecution that, with the assistance of forensic experts he conducted search of International Press owned by the
second accused. Exhibit P30 is the search memo and Exhibit P6 is the search list. It is the prosecution case that, about 147 items and also sub items were recovered from the press as per Exhibit P6 search list.
6. Thereafter, the further investigation was conducted by PW13 Detective sub inspector who was in charge of the Circle Inspector. He
started investigation from 07.11.1990 onwards after submitting Exhibit P14 report in this regard. PW13 questioned accused Nos.1,2 and 4
and submitted Exhibit P15 report. Thereafter, PW13 searched the house of 5th accused. Exhibit P17 is the search memo and Exhibit P16 is the search list. Nothing was seized from the house of the 5th accused. Subsequently, PW20, PW17, PW19 and PW21 proceeded with the investigation
after about 9 years. PW19 based on the information given by the 6th accused as per Exhibit P12-A , MO30 to MO32 partly processed counterfeit notes of 10 rupees was also recovered as per Exhibit P12 Mahazar.
Counterfeit notes were sent for expert opinion and as per Exhibits P32 and P35, reports, experts opined that the seized articles are counterfeit notes. Hence, PW21 submitted final report alleging offences punishable under Sections 120B and 489A, 489B,489C,489D read with Section 34 of the I.P.C.
7. To substantiate the case prosecution examined PW1 to PW21. Two witnesses were examined from the side of defence as DW1 and DW2. MO1 to MO32 are marked as the material objects. After going through the evidence and documents, trial court found that the accused Nos.5 to 7 are not guilty of the offences alleged. As far as the accused Nos. 1 to 4 are concerned, they were found guilty under Section
120B, 489A and 489D read with Section 34 of I.P.C. Separate sentence was also imposed. Aggrieved by the conviction sentence imposed on
accused Nos.1 to 4, the above four appeals were filed. As I said earlier, the appellant in Crl.A.No.1573/2005 and appellant in Crl.A.No.1574/2005 are no more and hence those appeals are abated as far as sentence of imprisonment is concerned. What remains is the appeal filed by the first and second accused, which is numbered as Crl.A. 1584/2005 and Crl.A.1581/2005.
8. Heard the learned counsel for the appellants and the learned Public Prosecutor.
9. The learned counsel for the appellants submitted that, even if the entire allegations are accepted, there is absolutely no evidence against the first accused who is the appellant in Crl.A.No.1584/2005. The learned counsel for the appellant submitted that, the admitted
prosecution case is that PW18 and his party seized MO9 and MO10 series as per Exhibit P1 Mahazar form the possession of the first accused. The learned counsel for the appellant submitted that, admittedly MO9 and MO10 are not counterfeit currency notes. The learned counsel for the appellant submitted that, Section 28 of I.P.C defines counterfeit. The counsel takes me through the evidence of PW18, who deposed to the effect that the seized articles has no resemblance to original 10 rupee notes. In such circumstances, the counsel submitted that, as far as the first
accused, who is the appellant in Crl.A.No.1584/2005 is concerned, there is absolutely no evidence. There is no evidence
adduced by the prosecution to show that there is any conspiracy between the first accused and the other accused. The learned counsel for the appellant also submitted that, nothing was seized from the house of the first accused also. In such circumstances the counsel for the appellants submitted that there is absolutely no evidence against the first accused. The learned counsel for the appellants submitted that, as far as the second accused is concerned, the prosecution is not able to show that the seized articles alleged to be in possession of the second accused reached in the hands of the experts. The learned counsel
for the appellants also submitted that, trial court convicted the second accused mainly because PW16, an expert says that, the blocks which are seized from the press can be used to print MO3 counterfeit notes. The learned counsel for the appellants submitted that, the evidence of PW16 cannot be believed at all. The learned counsel
for the appellants submitted that, there is absolutely no evidence to show any connection between the 2nd accused and the press from which the alleged materials were seized by the
Investigating Officer. The learned counsel for the appellants submitted that, the press is not conducted by the second accused. According to the 2nd accused, it was conducted by one Vasu Pillai. The learned counsel for the appellants submitted that, the evidence of PW15, the Manager of KSFE cannot be believed simply because the 2nd accused
availed a loan from KSFE for conducting the press. He submitted that, there is no presumption that, the second accused printed the counterfeit notes, even if the 2nd accused availed loan from KSFE. The learned counsel for the appellants also submitted that simply because the second accused was alleged to be present at the time of seizure, there is no presumption that the second accused
is in conscious possession of the materials seized by the Police Officers from the press. Therefore, the counsel submitted that, there is absolutely no materials to connect the second accused to this case and therefore the conviction and sentence imposed on the second accused is also unsustainable.
10. The point to be considered in this case is whether the first and the second accused committed the offences under Section 120B, 489A and 489D of I.P.C.
11. First I will consider the evidence against the first accused. The prosecution relied the evidence of PW 18, PW 9 and PW 10 to connect the first accused with the offence. According to PW18, he received a reliable information on 30.10.1999 to the effect that, the first accused is standing near corporation,
Thiruvananthapuram and is in possession of counterfeit notes. Therefore, he along with PW9 and PW10 proceeded to the place and found him. PW18 searched the body of the first accused. The case of the prosecution is that, MO9 and MO10 series are seized from the possession of the first accused as per Exhibit P1 Mahazar. Except the same there is absolutely no evidence against the first accused. The learned counsel for the appellants takes me through the evidence of PW18. I perused the evidence of PW18. PW18 deposed in his evidence like this:- "ഞഞന കണണടടത Notes കണ നനലയനല കറനസന നനഞടഞയന ഉപനയഞഗനകഞന പറടന നനലയനല ആയനരടനനല.”
12. Section 28 of the Indian penal Code defines counterfeit note which is extracted herein;
“Counterfeit” - A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised. [Explanation 1 - it is not essential to counterfeiting that the imitation should be exact. Explanation 2 - When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.]
13. I perused Exhibit P1 Mahazar also. It
shows that, what is seized is 5 sheet in which 6 currency notes each were printed. A reading of Exhibit P1 Mahazar and the evidence of PW18 will show that MO9 and MO10 series were seized from the first accused which are, 5 sheets, each containing 6 currency notes printed. That will not come within the purview of counterfeit as defined in Section 28 of I.P.C. To convict a person under Section 489A and 489D the prosecution has to prove certain ingredients. Section 489A of I.P.C says about counterfeiting currency notes or bank notes. Section 489A is extracted hereunder;
“ 489 A. Counterfeiting currency- notes or bank-notes. - Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation - For the purpose of this section and of sections 489B, [489C, 489D and 489E], the expression “bank-note” means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money.]”
Except the possession of MO9 and MO10 series by the 1st accused, there is no other evidence against the 1st accused.
14. Similarly Section 489D says about making
or possessing instruments or materials for forging or making counterfeit notes or bank notes. Section 489D I.P.C is extracted
hereunder;
“ 489D. Making or possessing instruments or materials for forging or counterfeiting currency-notes or bank- notes. - Whoever makes, or performs, any part of the process of making, or buys or sells or dispose of, or has in his possession, any machinery, instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency-note or bank-note, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.]”
15. The prosecution has no case that the
first accused was making or possessing instruments or materials for forging or counterfeiting currency notes and bank notes.
Similarly the prosecution has no case that the 1st accused counterfeits or knowingly performs any part of the process of counterfeiting, any currency note or bank note. Even if it is admitted that, the 1st accused was found in possession of MO9 and MO10 series no offence under Section 489B and 489D I.P.C will attract. In such situations, according to me, there is absolutely no evidence against the first accused to convict him under Sections 489A,489D of I.P.C. There is no evidence to prove conspiracy also. Hence the first accused is entitled the benefit of doubt.
16.The next question is what is the evidence against the second accused. PW18 deposed before the Court that, he directed PW9, his subordinate to search the house of the second accused as per Exhibit P21 order. PW9 gave evidence before the court that, he searched the house of the second accused after sending Exhibit P22 search memo. He also deposed that, as per Exhibit P3 search list
MO1 to MO4 which are partly processed counterfeit notes were seized from the house of the second accused. PW18 with the assistance of Forensic experts conducted search of the International Press which is alleged to be owned by the second accused. Exhibit P30 is the search memo and Exhibit P6 is the search list. As per Exhibit P6, 147 main items and also other sub items were recovered from the press. PW 15 is the Manager of the Kerala State Financial Enterprises (K.S.F.E). PW15 deposed that, the second accused
availed a loan of Rs.3,10,000/- from K.S.F.E for starting the above press. PW15 deposed that the loan was sanctioned because the press was owned
by the second accused. The seized articles as per Exhibit P6 search list from the press includes item No.49,115 to 119,140 and 141 which are counterfeit notes. Item No. 48 to 82 in Exhibit P6 are the materials used for counterfeit notes. Sub item No. 112 is the two blocks intending for printing counterfeit notes. PW18 narrated the
seized article from the press in detail. PW16 gave evidence that, he examined the dismantled printing machineries articles as required by the investigating officer. He deposed that the MO8 block seized from the press can be used to print MO3 counterfeit notes. The trial court in detail narrated the evidence of PW18 in the impugned judgment. I don’t want to repeat the same in detail.
17. The learned counsel for the appellant submitted that, there is no evidence to connect the second accused with the press. I cannot agree with the learned counsel on this part. In the light of the evidence of PW15 coupled with
the evidence of PW18, according to me the possession of the press by the second accused is proved beyond reasonable doubt. Admittedly, the second accused was present in the press at the time of the alleged search. There is nothing to disbelieve the evidence of PW18, the Detecting Officer, as far as the seizure of these items as
per Exhibit P6 search list. It is true that the independent witness who witnessed the search declared hostile. Simply because independent witnesses are declared as hostile, there is no presumption that the evidence of the official witnesses are also to be rejected. I see no reason to disbelieve the evidence of PW18 and other official witnesses, coupled with the documentary evidences such as Exhibit P6 search list and the evidence adduced by PW9, who searched the house of second accused.
18. Hence, in the light of the totality of the evidence adduced in this case against the
second accused, according to me, the offence under Section 489A and 489D I.P.C is clearly made out against the second accused. The MOs seized from the second accused will show that the second accused was counterfeiting the currency notes. The knowledge of the same is also proved. Similarly in the light of the material objects seized from the press which is owned by the second accused, the offence under Section 489D is also made out. Therefore, it is proved beyond reasonable doubt that, the second accused was making and possessing instruments and materials for forging counterfeit currency notes.
19. Therefore, according to me, it is a clear case in which the second accused committed
the offence under Section 489A and 489D of I.P.C. But the prosecution is not able to prove any conspiracy or meeting of mind between the second accused and the other accused, therefore second accused cannot be convicted under Section 120B I.P.C.
20. Then the question is what is the sentence to be imposed. The alleged seizure of
these materials are in 1990. Now 30 years elapsed. It is true that the allegations against the second accused are very serious. But this Court directed the learned Public Prosecutor to get the criminal antecedents of the second accused. The learned Public Prosecutor submitted that, no criminal antecedents reported against the second accused before or after the alleged seizure
21. Hence, according to me, it will be
sufficient if a rigorous imprisonment for two years is imposed on the second accused under Section 489A and 489B of I.P.C. Therefore, these criminal appeals are disposed in the following manner.
1. Crl.A.No. 1573/2005 and Crl.A.No. sentence of imprisonment is concerned.
2. Crl.A.No.1584/2005 is allowed. The conviction and sentence imposed on the appellant is set aside and the appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled.
3. Crl.A.No.1581/05 is allowed in part. The conviction and sentence imposed on the appellants under Section 120B read with
Section 489A and 489B of I.P.C are set aside. Conviction under Section 489A and D of I.P.C is confirmed. But the sentence imposed is set aside. The appellant / second accused is sentenced to undergo rigorous imprisonment for 2 years under Section 489A of I.P.C. He is also sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.20,000/-(Rupees Twenty Thousand Only)under Section 489 D of I.P.C. In default of payment of the fine amount, the appellant is directed to undergo rigorous imprisonment for one year.
4. The sentence imposed will run concurrently. Sd/- P.V.KUNHIKRISHNAN JUDGE Jms //True Copy// P.A to Judge.