Francis v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939** **CRL.A.No. 1435 of 2004 (C) ---------------------------** **AGAINST THE JUDGMENT IN SC 189/2003 of PRINCIPAL ASSISTANT SESSIONS COURT,KOCHI DATED 03-08-2004** **APPELLANT/ACCUSED NO.1:** **------------** **FRANCIS, S/O.SANOMI, KALLUVEETTIL, KANDAKKADAVU,, KUMBALANGI VILLAGE, ERNAKULAM.** **BY ADVS.SRI.JOHN VARGHESE SRI.T.SAJI** ## **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY** **THE DETECTIVE INSPECTOR, CBCID (CFS), ERNAKULAM, BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.1435 OF 2004** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of March, 2017 ## **JUDGMENT** This appeal is preferred against the judgment of conviction and sentence dated 3.8.2004 made in S.C.No.189/2003 on the files of the Principal Assistant Sessions Court, Kochi. The conviction is under Section 489(B) of IPC and the appellant was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/with default simple imprisonment for six months. 2. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before me that without an iota of evidence or reliable evidence, the lower court convicted the appellant/first accused. It can be seen that PW1 is a Police Constable. As per the prosecution case, he is the detector and he is the person who recovered the material objects which are now before the court. It is the submission of the learned counsel that PW6 is a boy who is aged only 2 Crl.Appeal No.1435/2004 14 years at the time of incident. It is the case of the prosecution that PW1 saw this witness i.e. the young boy trying to change Rs.10/- note from the shop of PW8, who was about to close the shop. PW8 got no case that he accepted the note or gave change. It is the case of the prosecution that the Police Officer who happened to be therein saw the said note as a foreged one and he started the investigation then and there. It is the submission that he questioned the witness and thereafter he went to the house of the witness and from therein made seizure of two notes of Rs.10/- denominations and he continued the investigation without preparing FIR and made search of the house of the appellant herein. It is the submission that curiously a mahazar is seen prepared by the said person without registering a crime and further it can be seen that it is a running commentary of the facts he had seen which is squarely hit under Section 162 of Cr.P.C. Confessional statements are also seen incorporated therein and thereupon a F.I. Statement is seen registered. There is no legal evidence. Hence the appellant is entitled for acquittal is the submission made before me. Crl.Appeal No.1435/2004 3 3. Here is a case where PW1 went to the house of the appellant herein without a search warrant and without preparing a search memorandum and sending the same to the court. On the basis of these facts the crime is now registered and convicted the appellant for the offence under Section 489(B) of IPC. It is the submission that even though originally there were five accused, all the other accused were acquitted by the trial court. It is the submission that there is no proof regarding the fact that the appellant herein was having any mensrea much less any intention. In support of the said contention, the learned counsel brought to my notice the decision in **Umashanker v.** ## **State of Chhattisgarh [ 2001 (3) KLT 681 (SC)].** 4. The learned Public Prosecutor submitted before me that here is a case where there is a recovery of 1197 notes of Rs.10/denomination each from the house of the appellant. Surely, it may not be a Section 27 recovery. Surely it is not a recovery after the registration of crime. There may be no search warrant or it is true that there is no preparation of search memorandum and the person who 4 Crl.Appeal No.1435/2004 recovered these notes was only a Police Constable, but the evidence of the said Police Constable as PW1 before the court is relevant. 5. The learned Public Prosecutor fairly conceded that the independent witnesses to mahazar turned hostile. But that will not go to the root of the case when recovery is therein and the recovered forged notes are before the court. It is also submitted that Ext.P28 will show that the seized articles are counterfeit notes. Then the corollary is that when the number of notes seized are so high and by virtue of Ext.P28, it is proved to be counterfeit notes, it is the burden of the defence to prove how it came into the possession of the appellant and it is also the case that when the evidence of PW5, PW6 and PW8 is therein as well as PWs 2 and 7 deposed to regarding the transaction, it is positively proved that he as committed the offence under Section 489 (B) of IPC. 6. In this case, PW1 is the star witness of the prosecution. During 1993 period, he was only a Constable. On 21.03.1993, as per his evidence, he was entrusted with process duty and he reached at 5 Crl.Appeal No.1435/2004 Kandakkadavu junction. He went to a nearby petty shop which is owned by PW8. Thereon a young boy aged about 14 years came there with a ten rupees note to get change. The said boy is examined as PW6 before the court. PW1 found some difference in the design of the note and he collected the same from the boy and found it to be a forged note. He enquired regarding the source and thereafter as per his evidence, he went to the house of the boy. PW2 and PW7 were present in the house. From therein he collected the said two numbers of ten rupee notes from PW2 and he started to prepare a mahazar then and there. The said mahazar is marked as Ext.P1 before the court. It can be seen that he obtained the signature of two witnesses therein. But they did not support the prosecution during trial. He identified the above said notes as MO1 series before the court. According to his evidence, from therein PW2 along with him proceeded to the house of the appellant from where it is alleged that the note was obtained. It can be further seen that a mob was also therein behind them. His further evidence is that from the Almirah in the house of the appellant, he took the notes Crl.Appeal No.1435/2004 6 and he counted the same as 1103 and he seized the same also. He prepared a mahazar for the said seizure also. That is marked as Ext.P2. The said notes are also marked as MO2 to MO8 series. Surely, the alleged offence being a cognizable offence, he arrested the appellant herein and he reported before the police station and a report is given and the said report is marked as Ext.P3. 7. Thereafter evidence of PW1 seems to be regarding the statement given by the appellant, which are not at all admissible in law. During cross examination also some discrepancies are brought out. But the main aspect that the notes were collected from the appellant is not seen destroyed or demolished. Surely, in this case, Section 8 of the Evidence Act can be taken into consideration. Even though PW1 is a Police Officer physically what all facts or what all things happened therein is narrated by him. By virtue of Section 8 of the Evidence Act , the conduct of the appellant herein, when he went therein as narrated by PW1 can be looked into. 8. PW2 deposed that he entrusted PW7 to change ten rupees Crl.Appeal No.1435/2004 7 note. That aspect he deposed to and his case is that it was a note came in their possession when Rs.100/- note was got changed. He further deposed before the court that a Police man came and all the three Rs.10/- denomination notes were handed over to the policeman. According to him, the Policeman got his signature in Ext.P1 and he identified his signature in Ext.P1. It is also the evidence of the witness that he was asked to show the house of Francis, the appellant herein by the policeman and he went along with him. Surely, PW2 being a witness he can depose to regarding the request of the Police as well as what he did. He identified the appellant herein from the court and he deposed to that he along with the policeman went therein. He categorically deposed that from the house of Francis, ten rupees notes were recovered and for the same a mahazar was prepared as Ext.P2 and there also he identified his signature. He deposed that when the mahazar was prepared, one Gopalan and Antony were also therein. Surely, those witnesses were declared hostile. The said witnesses are examined as PW3 and PW4 who declared hostile and did not support 8 Crl.Appeal No.1435/2004 the prosecution. 9. PW5 is the daughter of PW2 who gave evidence to the effect that she had taken Rs.100/- notes for getting change. She got the same from the appellant herein. According to her, when Rs.100/- note was given to the appellant herein, he gave the notes of denominations of Rs.50/-, Rs.20/- as well as three numbers of Rs.10/-. She identified the appellant from the court also. According to her, the said amount was entrusted to PW7 and thereafter her evidence is that on the next day her brother went to the shop with a ten rupees note and came back with a policeman. 10. PW6 is the brother of PW5 who also supported the prosecution and deposed before the court that his mother gave a ten rupee note and he went to the shop of PW8. According to him no change was given. The said shop is at Kandakkadavu junction and at that point of time, there was a policeman. The policeman verified the note and thereafter Police man came to his house along with him and PW2. There is a slight variation regarding the presence of PW2. But Crl.Appeal No.1435/2004 9 surely it is to be remembered that the trial took place only after ten years of the detection. According to her also ten rupees notes were entrusted to the policeman and thereafter his father went along with the policeman. 11. PW7 is the mother of PWs 5 and 6. She also supported the prosecution. She deposed that she gave a 100/- rupees note to Sindu to get change and she brought the same as denominations of Rs.50/-, Rs.20/- and three numbers of Rs.10/- notes and thereafter on the next day, a ten rupees note was given to PW6 to get the change. Then according to her evidence, he came along with the policeman. Thereafter notes are entrusted to the policeman. 12. PW8 is the shop owner where PW6 went for change. He also supported the prosecution. According to him, he had not given the change. He also deposed regarding the presence of the policeman therein. He deposed before the court that policeman went along with the child. PW9 to PW11 turned hostile. Crl.Appeal No.1435/2004 10 13. PW12 is the police officer who conducted the investigation. Through him, contradictions are marked. 14. PW13 is a mahazar witness who marked Ext.P18. PW14 is a witness to the arrest of accused No.3. 15. PW15 is the person who registered the FIR in this case which is marked as Ext.P25. 16. PW16 is a mahazar witness. He admitted the signature in Ext.P18. PW17 is the person who conducted the further investigation. He was the Circle Inspector at that point of time who got the expert opinion. 17. PW18 is the officer who filed the final report in this case. 18. Surely, there is a deviation from the ordinary procedure. Before the registration of the FIR, the detecting officer has conducted the investigation. It is also pertinent to note that inadmissible statements are deposed to by him as well as incorporated in Exts.P1 and P2. But the fact that the recovery of the counterfeit notes cannot be doubted. In this case, MO2 to MO8 series were recovered from the Crl.Appeal No.1435/2004 11 possession of the appellant. Surely, PW2, PW5, PW6 and PW7 deposed that MO1 series were actually got from the appellant. Still when the statements of the witnesses are incorporated in Ext.P1 and P2 and recording of those statements are by a police officer, that also in the so called mahazar, the only aspect that can be looked into is the oral evidence of PWs 2, 5 , 6, 7 and 8. The evidence of PW2 is to the effect that he was present when the notes were seized from the house of the appellant. 19. The evidence of PW1 regarding the same is corroborated by the evidence of PW2 and further when Exts.P1 and P2 can be looked into by virtue of Section 8 of the Evidence Act, but surely, excluding the confessional portions of statements given by the accused. Thus, the fact that MO2 to MO7 notes seized from the possession of the appellant is seen proved. Surely, to attract an offence under Section 489 (B), there should be traffics in or uses as genuine, any forged or counterfeit currency note with knowledge. In this case, the evidence of PW5 is the decisive evidence regarding traffics and when she is not Crl.Appeal No.1435/2004 12 giving positive evidence regarding the identity of the notes, but at the same time appreciating the fact that appellant was in possession of a bunch of forged notes, I am coming to a conclusion that the offence committed by the appellant herein is an offence under Section 489 (C) of IPC i.e. possession of forged or counterfeit currency notes. While coming to this conclusion, the fact that at the first instance of detection no crime registered and during investigation/search the seizure took place are all considered. Here, the notes seized is proved to be counterfeit currency notes as per Ext.P8. Hence, the conviction under Section 489 (B) of IPC can be converted into an offence under Section 489 C of IPC. Thus, the appeal is partly allowed. The conviction against the appellant under Section 489 (B) of IPC is set aside and he is convicted under Section 489 © of IPC. The sentence imposed by the court below is rigorous imprisonment for three years and to pay a fine of Rs.10,000/- with default simple imprisonment for six months. The sentence imposed is also modified in the light of the conversion of the Crl.Appeal No.1435/2004 13 conviction under Section 489 (B) of IPC into 489 (C) of IPC. The appellant is sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rs.10,000/- with default simple imprisonment for six months. **K.P.JYOTHINDRANATH JUDGE** sv.