Kunjukrishna Pillai v. State of Kerala

Crl.A.No.439/2006 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944_ ## _CRL.A NO. 439 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 889/2004 OF I ADDITIONAL_ _DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS_ _TRIBUNAL ,KOLLAM_ _CP 276/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -_ ## _I,KOTTARAKKARA_ ## _APPELLANT/ACCUSED:_ _KUNJUKRISHNA PILLAI, S/O.RAGHAVAN, KRISHNA SADANAM, VAKKANADU MURI, KAREEPRA VILLAGE, KOTTARAKKARA._ _BY ADV M.T.SURESHKUMAR_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _BY SRI.RENJIT GEORGE, PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.439/2006 2 ## **J U D G M E N T** The appellant is the first accused in S.C.No.889 of 2004 of the Sessions Court, Kollam. The aforesaid case arises from Crime No.202 of 2000 of Ezhukone Police Station, which was later re-registered by C.B.C.I.D (CFS), Thiruvananthapuram as Crime No.243 of 2000. The offences alleged against the appellant and three other accused are under Sections 232, 234, 235, 240,120B read with Section 34 of IPC. 2. The prosecution case is as follows: The Sub Inspector of Police, Ezhukone had received an information on 03.07.2004 to the effect that counterfeiting of Indian coins of the denomination of five rupees is taking place in a house at Vakkanadu, Kareepara Village, where the 1[st] accused was residing. Immediately, an inspection was conducted by the Sub Inspector of Police along with the police party, in the residence of the appellant and during such inspection, the appellant was found indulging in manufacturing counterfeit coins of Rupees five denomination. The counterfeit coins numbering 270, along with several instruments, utensils, dies and other Crl.A.No.439/2006 3 materials for the manufacturing of gold coins, were recovered from the said place. Accordingly, the appellant was arrested and the articles were seized by preparing a seizure mahazar in this regard. Later, Crime No.202 of 2000 was registered by Ezhukone Police and upon questioning the appellant, it was revealed that the implements for manufacturing gold coins were provided by accused Nos.2 to 4 who were at Keralapuram. Accordingly, on inspection, the aforesaid persons were found at Keralapuram and upon seeing the police party, A4 fled from the scene, and the 2[nd] and 3[rd] respondents were arrested by the police. A die similar to the one recovered from the appellant's possession was also seized. Later, the investigation was taken over by the CBCID, and after completing the investigation, a final report was submitted before the JFCM-I, Kottarakkara alleging the aforesaid offences against the appellant and the accused Nos.2 to 4. After completing the legal formalities, the matter was committed to the Sessions Court, so far it relates to accused Nos.1 to 3. The case against the 4[th] accused was split up and refiled, as he was absconding. The Sessions Court tried the aforesaid case against the accused Nos 1 to 3 as S.C.No.889 of 2004. During the trial, Crl.A.No.439/2006 4 2[nd] accused passed away and accordingly, prosecution against him stands abated. 3. In support of the prosecution case, PWs 1 to 6 were examined, Exts.P1 to P8 were marked and MOs 1 to 9 were identified from the side of the prosecution. After completing the prosecution evidence, the appellant and the 3[rd] accused were examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the trial were put to them. Both of them denied the same and pleaded innocence. It was stated by the appellant that he was falsely implicated in the offence as he assaulted a political leader at Vakkanadu. According to him he is an Ex-serviceman and he was arrested while he was coming to his wife's house at Vakkanadu, and he denied the manner of arrest as claimed by the prosecution. 4. After evaluating the materials available on record, the Sessions Court concluded that the appellant is guilty of the offences punishable under Sections 232, 234 and 235 of IPC. They were acquitted of the offence punishable under Section 120B and Section 240 of IPC. The 3[rd] accused was found guilty of the offence punishable under Section 232 IPC. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for a Crl.A.No.439/2006 5 period of five years and a fine of Rs.5,000/- with a default sentence to undergo simple imprisonment for one year under Section 232 IPC, to undergo rigorous imprisonment for a period of three years and a fine of Rs.2,500/- with a default sentence to undergo simple imprisonment for a period of six months under Section 234 IPC and to undergo rigorous imprisonment for a period of five years and a fine of Rs.5,000/- with a default sentence to undergo simple imprisonment for a period of one year under Section 235 IPC. The 3[rd] accused was also sentenced to undergo rigorous imprisonment for three years and a fine of Rs.2,500/- with a default sentence to undergo simple imprisonment for six months under Section 234 IPC. It was also ordered that the sentences awarded shall run concurrently. 5. Challenging the aforesaid finding of conviction and sentence imposed, this appeal is filed by the appellant/1[st] accused. Heard Sri.M.T.Suresh Kumar, learned counsel appearing for the appellant and Sri.Ranjit George, learned Public Prosecutor for the State. 6. The learned counsel for the appellant raises various contentions. It was contended that the prosecution failed to establish the guilt of the accused beyond a reasonable doubt. It Crl.A.No.439/2006 6 was pointed out that the arrest of the accused from the alleged place of occurrence is not properly proved as no arrest memo has been produced. It was also contended by the learned counsel that no search memo was prepared and marked in evidence. There was delay in the production of the articles seized before the court and there is no explanation for the same. The discrepancies in the evidence including the discrepancies in the details of the articles allegedly taken as per Ext.P1 mahazar and produced before the court, were also highlighted by the learned counsel. It was further contended that the prosecution could not establish that the coins allegedly recovered from the scene of occurrence were having resemblance with the Indian coin, and therefore, the ingredients of the offences alleged against the appellant are not made out. Learned counsel also places reliance upon the judgment rendered by the High Court of Bombay in **Shahid Sultan Khan v. State of Maharashtra [2007 Crl.LJ 568].** 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. According to the learned Public Prosecutor depositions of PWs1, 3 and 4 coupled with Ext.P1 seizure mahazar, Ext.P4 property list and Ext.P8 Crl.A.No.439/2006 7 expert report submitted by Deputy Chief Assayer, I.G. Mint, Hydrabad, would clearly establish the guilt of the appellant. It was also pointed out that the conviction and sentence passed by the Sessions Court against the 3[rd] accused stands confirmed by this Court as per judgment dated 1.2.2007 in Crl.A.868 of 2006. In such circumstances, the learned Public Prosecutor seeks for dismissal of the appeal. 8. Thus, the crucial question that arises here is whether any interference is warranted in the findings of the Sessions Court. The crucial evidence adduced by the prosecution in support of the case against the appellant is the depositions of PWs1, 3 and 4. PW4 is the Sub Inspector of Police, Ezhukone, who detected the offence. PW3 is the ASI of Police who accompanied him. PW1 is the attestor of Ext.P1 mahazar, by which the articles were seized from the possession of the appellant. The crucial documentary evidence relied on by the prosecution are Ext.P1 seizure mahazar, Ext.P4 property list and Ext.P8 Assay report. 9. The evidence of PW4 is that; on 03.07.2000, while he was sitting in the police station, he received an information that counterfeiting of coins of five rupee denomination is taking place Crl.A.No.439/2006 8 in the house of the appellant herein. Immediately he, along with the police party, rushed to the spot, and on inspecting the first floor of the building, they could find the appellant manufacturing the counterfeit coins. He identified the appellant from the dock as the person who carryied out the aforesaid illegal activity. According to him, at the time of inspection, the appellant was sitting on a chair inside the room on the first floor and was engaged in manufacturing counterfeit coins. MO1 series counterfeit coins having a total number of 270 were also found in the room. In addition to that, the implements such as eliminator, AC adapter, stove, moulds and the chemicals such as black-led, zinc etc were also found. He has identified all the said materials before the court. According to him, those chemicals were found kept in a vessel and were being boiled. The evidence of PW4 is corroborated by the evidence of PW3, as his evidence is in tune with the evidence of PW4. PW3 is the Assistant Sub Inspector of Police, who accompanied PW4 for conducting the inspection. PW1 is the attestor of Ext.P1 mahazar, which was prepared at the time of seizing the aforesaid articles. His evidence would indicate that the seizure of the articles mentioned above from the residential building, which is occupied by the appellant was Crl.A.No.439/2006 9 affected by PW3 and 4. It is also discernible from his evidence that the appellant was present in the said house at the relevant time and was arrested therefrom along with the articles mentioned above. There is indeed some discrepancy in the manner in which the police conducted the entire search and seizure. This is mainly because of the fact that according to PW1, it was the appellant who opened the door of the upper floor when the police party went there, whereas as per the versions of PWs 3 and 4, the door was opened by PW4 himself. However, when considering the entire statements of all the aforesaid witnesses, it reveals a uniform pattern as to the sequence of events which led to the seizure and the discrepancy mentioned above is very minor in nature and cannot have any impact on the credibility of the witnesses mentioned above. Thus, when the aforesaid evidence of the witnesses mentioned above is taken into consideration, it clearly establishes the presence of the appellant at the spot and the recovery of the articles therefrom. 10. One of the specific contentions put forward by the learned counsel for the appellant is that, as the prosecution failed to produce and mark the arrest memo indicating the arrest of the appellant, the case of the prosecution in this regard cannot be Crl.A.No.439/2006 10 accepted. It is true that it is a discrepancy. However, the question that arises here is whether the prosecution case about the arrest of the appellant from the spot is to be disbelieved merely on account of the same. In my view, merely because of non-production of the arrest memo, it cannot be concluded that the prosecution case as such is to be discarded. If there are other reliable materials to prove the arrest of the appellant and the seizure of articles from his possession, the failure to produce the arrest memo cannot be treated as crucial. As mentioned above, the evidence of official witnesses, namely, PWs 3 and 4, reveals the manner of arresting the appellant and seizure of the articles from his possession. Their evidence stands corroborated by the independent evidence of PW1. Apart from the above, the aforesaid seizure from the possession of the appellant is also clearly mentioned in Ext.P1 seizure mahazar, which is a contemporaneous document. Thus all these pieces of evidence are mutually corroborative, and therefore, I do not find any reason to discard the same and accept the case of the learned counsel for the appellant. 11. Another contention put forward by the learned counsel for the appellant is about the failure to produce the search memo Crl.A.No.439/2006 11 before the court. In this case, PW4 has clearly stated that immediately after getting the information, a search memo was prepared and forwarded to the court, which was received by the court after the search was conducted. It is true that the said document is not seen marked. However, considering the nature of evidence in the form of deposition of PW1, PW3 and PW4, I do not find any reason to interfere with the finding of the Sessions Court in this regard for want of marking of search memo. 12. Another contention put forward by the learned counsel for the appellant is regarding the delay in producing the seized article before the court. It is to be noted that the articles were seized on 03.07.2000 and the same was produced before the court on 14.07.2000. Thus there is delay of 11 days in production of the same. However, I am of the view that merely because of the said delay, the prosecution case cannot be discarded, unless it is shown that any prejudice has been caused to the appellant on account of the same. In his deposition, PW4 had clearly stated that even though the same was produced before the court, the same was returned to him for safe custody and the same was accepted by the court only on 14.07.2000. It was specifically 12 Crl.A.No.439/2006 mentioned to him that, during the period of 03.07.2000 to 14.07.2000, he had kept the articles in his custody in a locker. Since he had clearly explained the manner in which he kept the aforesaid articles while the same was in his custody, I do not find any reason to accept the contention of the learned counsel for the appellant in this regard. This is mainly because of the reason that the articles recovered were implements for counterfeiting coins and counterfeit coins, which cannot be tampered with easily. In addition to the above, as pointed out by the learned Public Persecutor, this Court had already found in Crl.A.No.868 of 2006, which is the appeal filed by the 3[rd] accused, that the delay in the production of the articles before the court did not cause any prejudice to the accused. In such circumstances, I do not find any force in the contention of the learned counsel in this regard. 13. The learned counsel for the appellant further contends that, even if it is assumed for argument sake that the articles were recovered from the possession of the appellant, that by itself cannot lead to the inference that the accused had committed the offences alleged against him. It was pointed out that in order to attract the offences under Sections 332, 334 and Crl.A.No.439/2006 13 334 IPC, it must be shown that, the coins allegedly recovered from his possession had resemblance with the Indian coins. In the absence of evidence establishing the same, it cannot be concluded that the appellant is guilty and in this case, such evidence is lacking. The learned counsel also relies on the decisions of the Bombay High Court in **Shahid Sultan Khan's** case (supra). It is true that in the said decision a Division Bench of Bombay High Court held that mere possession of equipment for manufacturing counterfeit coins is not sufficient, if the prosecution failed to prove that the equipment was used for manufacturing coins having resemblance with the Indian coins. However, in my view, the findings entered by the Bombay High Court cannot be made applicable to the facts of this case. This is because, in this case, the prosecution has produced Ext.P8 report issued by the Deputy Chief Assayer, wherein the features of the coins and the article seized from the possession of the appellant were specifically mentioned. The relevant portion of the said report is extracted for easy reference, which reads as follows: "The above-mentioned counterfeit coins have been manufactured by adopting moulding process. The moulds (four sets) made of copper having obverse design of 5Re India coin and the reverse design of Crl.A.No.439/2006 14 5Re India coin of the year 1992, 1997, 1998 & 1999 respectively. The samples drawn from these counterfeit coins have been assayed to ascertain the composition of metal used for counterfeiting and found to be 82.28% lead and rest Tin with traces of Antimony, Zinc, Aluminium. The copy of Assay Report is enclosed herewith along with the detailed examination report." 14. From the reading of the report as mentioned above, it can be seen that the specific features of the designs of the moulds were specifically mentioned therein. It is also specifically stated therein that the counterfeit coins recovered were manufactured by adopting the moulding process. The design of the same was found to be that of the Indian coins of Rs.5/denomination of the years 1992, 1997, 1998 and 1999. The said report also contains a finding that the said coins are counterfeit. Thus, in the light of the specific findings in Ext.P8, the contention put forward by the learned counsel for the appellant in this regard cannot be accepted. This is mainly because the contents of Ext.P8 report establish that the coins recovered from the appellant's possession were counterfeit of Indian coins. The implements found in possession of the appellants were also found to contain designs of Indian coin of the years mentioned above. In the light of the aforesaid evidence, the only irresistible Crl.A.No.439/2006 15 conclusion possible is that the coins recovered from the appellants' possession were having resemblance with the Indian coins. While considering this issue, the definition of the term 'counterfeit' as defined under Section 28 of IPC has some relevance; the said provision reads as follows: **“28** . “Counterfeit”.—A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practice. 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.” 15. As per Explanation No.1, It is not necessary that the imitation should be exact. Explanation 2 of the said provision further clarifies the position. As per the same, if the resemblance is such that a person might be deceived thereby, it shall be presumed that the person making the said coin is aware that it is likely to cause deception. Therefore, it is evident that, mere knowledge of a person that the resemblance of the thing with the Crl.A.No.439/2006 16 original is likely to deceive a person, is sufficient to attract the offence of counterfeiting, if it is shown that he made something with such resemblance with the aforesaid knowledge. In this case, I have already found that the coins recovered from the possession of the appellant had a resemblance with original Indian coins of Rs.5/- denomination. The materials indicate that such resemblance is likely to deceive a person. There are also materials to show that the petitioner was indulging in manufacturing the coins at the time of inspection. The recovery of implements and chemicals are material factors substantiating the same. When all the above aspects are taken into consideration collectively, it leads to a clear finding that the, acts of the appellants amounts to counterfeiting as defined under section 28 of IPC. In such circumstances, the ingredients for fulfilling the definition of counterfeit are clearly revealed and hence, the offences as contemplated under Sections 232 and 235 are established. Therefore, this contention of the learned counsel is also liable to be rejected. 16. Thus, when all the aforesaid aspects are taken into consideration in the light of the evidence adduced by the prosecution, it leads to a concrete finding that the appellant had Crl.A.No.439/2006 17 committed the offences punishable under sections 232 and 235 of IPC. The evidence of PWs1, 3 and 4, along with the documentary evidence of Ext.P1 clearly establish the recovery of the articles of counterfeit coins and the implements for making counterfeit coins from the appellants. The appellant's arrest from the spot in the manner mentioned in Ext.P1 also clearly established. The contents of Ext.P8 would establish MO1 series coins as counterfeit and the other material objects as the implements for manufacturing the counterfeit coins. In such circumstances, I do not find any reason to interfere with the finding of the Session Court in respect of the offences punishable under Sections 232 and 235 of the Indian Penal Code. 17. What remains is the offence under section 234 of IPC. The aforesaid offence gets attracted when the accused makes or mends or performs any part of the process of making or mending or buys or disposes of any die or instrument for counterfeiting Indian coin. In this case, instruments including the die for counterfeiting Indian coins, have been recovered from the appellant's possession. Ext P8 report indicates the features of the same and it substantiates the prosecution case that the said mould contains the designs of Indian coin of Rs.5/- denomination. Crl.A.No.439/2006 18 The possession of such an article with the knowledge of its purpose is already established from the evidence adduced by the prosecution. Therefore, the offence under section 234 is also attracted. Accordingly, I do not find any merits in this appeal and the same is dismissed, confirming the finding of conviction and sentence of the Sessions Court. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/16.5.22