Johnichan v. State (Criminal Appeal No. 2177 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **CRL.A.No.2177 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 923/2003 DATED 22-11-2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV, TRIVANDRUM** **AGAINST THE ORDER/JUDGMENT IN CP 73/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,TRIVANDRUM** ## **APPELLANT/ACCUSED:** **JOHNICHAN, S/O.GEORGE KATTILPARAMBIL VEEDU, PALLIPURAM VILLAGE, CHERTHALA TALUK.** ## **BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR** ## **RESPONDENT/COMPLAINANT:** **STATE, REP BY DECTECTIVE INSPECTOR CRIME BRANCH, CID (CFS),THIRUVANANTHAPURAM.,TROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA.** ## **R1 BY PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.2177 OF 2005 2 ## **JUDGMENT** ## **Dated this the 23[rd] day of November, 2020.** The appellant is the accused in Sessions Case No.923/2003 on the files of the Additional Sessions Judge, Fast Track, (Adhoc)No.IV, Thiruvananthapuram. 2. Above case is charge sheeted by the Detective Inspector CBCID (CFS) Thiruvananthapuram, against the accused alleging offences punishable under Sections 489 B and 489 C of IPC. 3. The prosecution case is that on 30.10.1996 at 11:30 am the accused went to the General Post Office situated at Kunnumpuram, Vanchiyoor, Thiruvananthapuram and handed over 20 numbers of Rs.100 denomination currency notes to CW3, the Stamp Vendor for purchase of postal stamp for Rs.2,000/- and the stamp vendor handed over the currency notes to CW2 Postal Assistant, who was working as treasurer No.5 of the General Post Office for getting postal stamp. The CW2 on counting the notes, became suspicious regarding the genuineness of 10 numbers Of Rs.100 denomination currency notes out of the 20 numbers currency notes handed over to her, and she went to the Post Master CW1 and show him the currency notes and he CRL.A.No.2177 OF 2005 3 also got suspicious regarding the genuineness of the currency notes. The Post Master along with CW2 and CW3 came to the counter of the Post Office and CW3 showed the accused person, who handed over the currency notes for purchase of stamps. The Post Master took him to his cabin and informed the matter to the Vanchiyoor Police Station, and the CW13 the Assistant Sub Inspector along with the Police party reached the Post Office and the Post Master handed over the currency notes to the Assistant Sub Inspector. The Assistant Sub Inspector conducted the body search of the accused and then found another 17 Numbers of Rs.100 denomination counterfeit currency notes from the pocket of the pants of the accused. The 27 numbers of Rs.100 denomination counterfeit currency notes and other genuine currency notes along with the other personal articles belonging to the accused found at the time of conducting the search were seized. After investigation the Final Report was filed under Section 489 B and 489 C of IPC. This is the sum and substance of the prosecution case. 4. To substantiate the case, prosecution examined PW1 to PW8. Exhibits P1 to P13 are the exhibits marked on the side of Prosecution. Exhibit D1 is the document marked on the side of the defence. MO-1 to MO-19 are the material objects. After going through the evidence CRL.A.No.2177 OF 2005 4 and documents the trial court found that, the accused committed the offence under Sections 489 B and 489 C of the IPC. The accused is sentenced to undergo rigorous imprisonment for 3 years for the offence under Section 489 B of the IPC and rigorous imprisonment for 1 year for the offence under Section 489 C of the IPC. Aggrieved by the conviction sentenced this criminal appeal is filed. 5. Heard the learned counsel for the appellant and the Public Prosecutor. 6. The learned counsel for the appellant submitted that, even if it is admitted that the counterfeit currency notes are seized from the possession of the accused there is absolutely no evidence to show that, the accused was in possession of the counterfeit currency notes with the knowledge that it is counterfeit notes. Therefore, the offence under Sections 489 B and 489 C of IPC is not attracted in this case. The learned counsel for the petitioner also submitted that, the evidence adduced by the prosecution in this case is unreliable and their evidence cannot be acceptable at all. 7. The learned Public Prosecutor submitted that, there is ample evidence to prove the offence under Sections 489 B and 489 C of the IPC. The learned Public Prosecutor submitted that, the seizure of huge CRL.A.No.2177 OF 2005 5 quantity of counterfeit currency notes from the appellant itself is a circumstance to show that he is aware that it is counterfeit notes. 8. The point for consideration is, whether the accused committed the offence under Sections 489 B and 489 C of the IPC. 9. Altogether 8 witnesses were examined by the prosecution. PW1 is the Post Master of the Post Office. PW2 is the Postal Assistant. PW3 is the Stamp Vendor. PW4 and PW5 are the witnesses to Exhibit P3 Mahzar. PW6 is the Assistant Sub Inspector, who registered the FIR. PW 7 is the Detecting Officer. PW8 is the Investigating Officer. I perused the evidence of PW1 to PW3, there is nothing to disbelieve the evidence of PW1 to PW3 as far as the seizure of counterfeit notes from the possession of the accused. They depose uniformly that,the accused handed over the 10 counterfeit notes along with other 10 genuine notes to PW3. Thereafter, PW3 entrusted the same to PW2 because she became suspicious about the genuineness of the notes. PW2 also became suspicious about the notes and she handed over the same to PW1. PW1 contacted the Vanchiyoor Police, and police reached there and seized these 10 counterfeit notes. Thereafter, a body search of the accused was conducted and 17 other counterfeit notes were seized from the pants pocket of the accused. These fact are proved by the evidence of PW1 to PW3 and PW7. I see no reason CRL.A.No.2177 OF 2005 6 to disbelieve these evidence as far as the seizure of 27 counterfeit notes from the possession of the accused. 10. But simply because a counterfeit note is seized from the possession of the accused, the offence under Section 489 B and 489 C of IPC will not attract. To attract offence under Section 489 B and 489 C of IPC the prosecution has to establish that, the accused is in possession of the counterfeit notes with knowledge or having reason to believe the same, that the same is forged or counterfeit note. The question is whether there is evidence to show that the accused was having the knowledge or reason to believe that notes are counterfeit notes. The trial court convicted the accused mainly relying the fact that seventeen counterfeit notes are kept by the accused in a separate pocket of his pants. According to the learned Judge the other genuine currency notes seized from the accused at the time of incident were kept separately in a bag and that itself would show that the accused had knowledge about the counterfeit notes in his possession and he intended to use the same as genuine currency notes. This is the circumstance relied by the learned Judge to conclude that the accused was having knowledge about the counterfeit notes. But this specific circumstance is not specifically put to the accused while he was examined under Section 313 of Cr.P.C. The discussion of the trial CRL.A.No.2177 OF 2005 7 ## court is there in paragraph 17 of the judgment which is extracted hereunder:- _“17. The question to be considered is whether the accused had the knowledge or whether there was reason to believe that the notes were forged or counter feit and that the accused intended to use the forged or counter feit currency notes as genuine. In this case it is pertinent to note that the accused handed over 20 nos. of currency notes for Rs.2,000/- to PW3 for purchase of postal stamps out of which the 10 nos. of rupee 100 denomination notes were found to be counter feit notes. The accused handed over the notes mixing genuine notes with counter feit notes and other counter feit notes of 17 nos. of similar nature were also recovered from the pocket of the pants worn by him at the time of incident. The counter feit currency notes were separately kept by him in the pocket of the pants worn by him. The other genuine currency notes seized from the accused at the time of the incident were kept separately in a bag and that itself would go to show that the accused had knowledge about the counter feit notes in his possession and he intended to use the same as genuine currency notes. The learned counsel for the accused argued that if the accused had any knowledge that the said notes were not genuine he would have tried to flew away from the place and the very conduct of the accused shows that he was innocent. The said argument of the learned counsel will not hold good in the circumstances of this case. The accused in this case handed over the currency notes to the stamp vendor mixing genuine currency notes with forged notes and he was waiting for getting postal stamps. He might not have aware of the fact that the notes were verified by the Postmaster PW1 and he informed that matter to the Police. The mere fact that the accused did not run away from the place is not sufficient to hold that he was innocent and he had no knowledge about the counter feit notes. The evidence tendered by the prosecution in this case will convincingly establish that the accused was found in possession of 27 nos. of rupee 100 denomination counter feit notes knowing the same to be counter feit notes and he intended to use the counter feit currency notes as genuine notes. The prosecution has succeeded in establishing the ingredients to constitute the offence U/S 489 - B & 489 – C of I.P.C beyond reasonable doubt._ CRL.A.No.2177 OF 2005 8 _Hence I find the accused guilty of the offence U/S 489 – B & 489 – C of I.P.C.”_ 11. I perused Section 313 of Cr.P.C statement of the accused. The above circumstance is not specifically put to the accused by the learned Judge. This court considered this point in _**Anthru @ Abdurahiman v. State of Kerala**_ [2020 (4) KHC 469], relevant paragraphs 19 and 20 are extracted hereunder:- _“19. Moreover, as per Section 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 1[st] 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 1[st] accused is a person who used to deal with 100 rupee currency notes generally. In such a situation, according to the trial 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 Section 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 Section 342 Cr.P.C (the present Section 313 Cr.P.C) that is fatal to the prosecution. Similarly, in_ _**Umashanker v. State of Chhattisgarh (AIR 2001 SC 3074)** , 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 Section 313 Cr.P.C, that is fatal to the prosecution. This court considered the importance of examining the accused under Section 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_ CRL.A.No.2177 OF 2005 9 _compliance of Section 42(2) of the NDPS Act is not put to the accused under Section 313 Cr.P.C. I perused the Section 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 Section 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:_ _“13. It is to be noted that the High Court did not accept the stand relating to noncompliance with Section 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 Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 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 Section 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 Section 313 Cr.P.C. On that ground also, the accused is entitled to the benefit of doubt.“_ 12. In the light of the above decision, according to me the trial CRL.A.No.2177 OF 2005 10 court cannot rely the above circumstance to prove that the accused was having knowledge about the counterfeit currency notes. Moreover, there is no evidence adduced by the prosecution to show that a mere look of the notes itself will show that these are counterfeit currency notes. The accused has got a specific case that he actually obtained these notes from the Church for getting postal stamps and he collected the amount from the Church authorities and handed over to the postal authorities. One aspect is to be noted in this case is that there is absolutely no behavioral change from the accused when he saw the police party. He never tried to ran away from the place when the police came there. The prosecution has no such case. When the police conducted the body search also there is no case to the prosecution that the accused was perplexed or in any way tried to escape from the place. That is also a circumstance in favour of the accused to show that he was not having any knowledge that the notes which are handed over to the postal authorities by him and the notes which are seized from his possession are counterfeit notes. I think, in the facts and circumstance of the case, the appellant is entitled to the benefit of doubt. Therefore this Crl. Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 22.11.2005 in S.C. CRL.A.No.2177 OF 2005 11 No.923/2003 on the file of the Additional Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthapuram is set aside. The accused is set at liberty and the bail bond if any, executed by him is canceled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** jms/SPR //True Copy// P.A to Judge