K.V. Supran @ Gopi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **CRL.A.No.1070 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 326/2004 DATED 23-06-2005 OF VI ADDITIONAL SESSIONS JUDGE, ERNAKULAM** ## **APPELLANT/1ST ACCUSED:** **K.V.SUPRAN @ GOPI S/O.VELAYUDHAN, ANUP'S HOUSE, XI/348, MANACKYAPADI ROAD, IRUMBANAM, THIRUVANKULAM VILLAGE, (PERUMBALAM VILLAGE, KALLEPARAMBIL, LAKSHAN VEEDU COLONY).** **BY ADVS. SRI.T.A.SHAJI SMT.T.V.NEEMA SRI.ATHUL SHAJI SHRI.ANWIN JOHN ANTONY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA (DETECTIVE INSPECTOR,CBCID(CFS) ERNAKULAM), REPRESENTED BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.P.K.BABU, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1070 OF 2005** 2 ## **JUDGMENT** ## **Dated this the 8th day of December 2020** Appellant is the 1[st] accused in S.C.No.326/2004, on the file of the VI Additional Sessions Judge, Ernakulam. The above case is charge sheeted by the Detective Inspector, CBCID, against the appellant and five others alleging offences punishable under Section 489B and 489C read with Section 34 IPC. 2. The prosecution case is that, on 20-10-2001 at about 12.30 p.m., the Sub Inspector of Police, Hill Palace Police Station, received information that, 1[st] accused is detained with fake currency notes in Zodiac Bar Hotel, Thripunithura. He and his police party proceeded to the place and found the 1[st] accused detained in the bar hotel. The 1[st] accused was questioned and his body was searched, and the Sub Inspector recovered 9 numbers of fake 50 Rupee notes kept in a purse in the pocket of the 1[st] accused. The fake notes were taken into custody and these notes and other articles seized from the possession of the 1[st] accused was seized as per Ext.P2, mahazar. Accused was **CRL.A.No.1070 OF 2005** 3 arrested from the spot. He was questioned. Thereafter his house was searched. From the bed room of his house, 16 numbers of 50 Rupees fake notes were recovered. After preliminary investigation by the local police, the subsequent investigation was done by the Detective Inspector, CBCID. The Detective Inspector, CBCID, started his investigation on 03-12-2001. He found on further investigation that, the accused committed the offence punishable under Section 489B IPC also. The first accused produced a token showing a gold loan taken from Oasis Finance for transacting fake currency business and the token was taken into custody as per a separate mahazar. The fake currency notes were sent for expert opinion through the Court. The 1[st] accused rental house was owned by one Anoop, and the rent kychit executed by 1[st] accused and Anoop was taken into custody, as per a separate mahazar. On 31-05-2002 the 2[nd] accused was arrested from his house at Maneed. The 2[nd] and 3[rd] accused were also implicated in the case and 3[rd] accused was arrested from his house at Muvattupuzha. On further investigation, 4[th] and 5[th] accused were also implicated as an accused. After investigation the case **CRL.A.No.1070 OF 2005** 4 was charge sheeted against 6 accused including the appellant herein. 3. To substantiate the case, prosecution examined PW1 to PW19. MO1 to MO3 are the material objects. Exts.P1 to P25 are the documents marked on the side of the prosecution. 4. After going through the evidence and documents, the trial Court found that, the 1[st] accused committed the offences punishable under Section 489B and 489C IPC. As far as accused Nos. 2 to 4 are concerned , the trial Court concluded that they are not guilty and they were acquitted. The 1[st] accused is sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.5,000/- under Section 489B IPC. He is also sentenced to undergo rigorous imprisonment for 4 years for the offence under Section 489C IPC. A default sentence was also imposed for six months for non payment of the fine amount. Aggrieved by the conviction and sentence,this Criminal Appeal is filed by the 1[st] accused. 5. Originally accused Nos.1 to 4 faced trial. When this appeal came up for consideration, this Court directed the lower court to report whether 5[th] and 6[th] accused faced trial. The lower **CRL.A.No.1070 OF 2005** 5 court informed that the 5[th] and 6[th] accused already faced trial and they were also acquitted. The 5[th] accused was acquitted as per the judgment dated 19.3.2009 in S.C.No.37 of 2009 and the 6[th] accused was acquitted as per the judgment dated 18.12.2007 in S.C.No.587 of 2006. 6. Heard the learned counsel for the appellant and learned Public Prosecutor. 7. The learned counsel for the appellant submitted that, even if the entire prosecution case is accepted, the offence under Section 489B and 489C IPC is not made out in this case. The learned counsel for the appellant submitted that, as far as the recovery of the counterfeit note from the possession of the 1[st] accused is concerned, there is only the interested testimony of PW1. He is the person, who detected the offence and conducted preliminary investigation. In such circumstances, the learned counsel submitted that, his evidence is to be scrutinized strictly. The learned counsel also submitted that, as far as the seizure of counterfeit notes from the house of the accused is concerned, the prosecution miserably failed to prove that the house from where the seizure made belong to the appellant/1[st] accused. **CRL.A.No.1070 OF 2005** 6 The learned counsel submitted that, the prosecution relied Ext.P14, lease agreement to prove that the accused was in possession of the house from, where the alleged seizure was made. But the number of the house mentioned in Ext.P14 lease agreement is entirely different from the number mentioned in Ext.P3, search list. Therefore, the prosecution is not able to show that the seizure is from the house of the appellant. The learned counsel submitted that, the evidence of PW3, the bar hotel manager, will not improve the case of the prosecution, because he has no direct knowledge about the same. The learned counsel submitted that, he only stated that his supplier informed him that the 1[st] accused tried to hand over a counterfeit note to him. The supplier is not examined. The learned counsel submitted that, in such circumstances the offence under Section 489 B and 489C IPC is not made out in the facts and circumstance of this case. 8. The learned Public Prosecutor submitted that, there is nothing to disbelieve the evidence of PW1, the Police Officer, who conducted the detection. The learned Public Prosecutor submitted that, no enmity is alleged against PW1 to implicate **CRL.A.No.1070 OF 2005** 7 1[st] accused in a false case like this. The learned Public Prosecutor submitted that, nine fake notes were seized from the possession of the 1[st] accused and there is evidence to show that, he handed over these notes in the bar hotel. He submitted that the evidence and circumstances will show that, he used this fake note in the bar hotel. Therefore, the learned Public Prosecutor submitted that, the offence punishable under Section 489B and 489C IPC is attracted. 9. The point for consideration in this case is whether the accused committed offence under Section 489 B and 489 C IPC. 10. Altogether 19 witnesses were examined by the prosecution. PW1 is the Sub Inspector of Police, Hill Palace Police Station. He arrested the appellant and seized the counterfeit notes from his possession. He conducted the preliminary investigation and he is the person, who searched the alleged house of the 1[st] accused. PW2 is the Head Constable, who accompanied PW1. PW3, is the manager of the bar hotel from where, the accused was arrested. PW4 is only a hostile witness. PW5 and PW6 are witnesses to Ext.P2 mahazar. PW7 to PW12 turned hostile to the prosecution. PW13 is a money **CRL.A.No.1070 OF 2005** 8 lender and he is examined only to prove that the 1[st] accused borrowed money from PW13. According to the prosecution, the 1[st] accused was using the money borrowed from PW13 for counterfeit business. PW14 is the Chief Manager of State Bank of Travancore. He is examined to prove that, PW1 went to State Bank of Travancore, Thripunithura, to verify the genuineness of the notes after the seizure of the same from the accused. But actually the genuineness of the notes were inspected by the Head Cashier of the bank and PW14 was only having hearsay evidence about the same. PW15 is the owner of the house and he deposed that, as per Ext.P14 agreement he handed over the house mentioned in that agreement to the accused. PW16 to PW18 are also hostile witnesses. PW19 is the Detective Inspector, CBCID, who conducted the investigation in this case. This is the evidence available in this case. 11. I perused the evidence of PW1. PW1 is the Sub Inspector of Police, Hill Palace Police Station. He deposed that on 20-10-2001, he received an information that, a man was detained in Zodiac Bar Hotel, Thripunithura with fake currency notes. PW1 and PW2 with the police party proceeded to the **CRL.A.No.1070 OF 2005** 9 place and they found the 1[st] accused in the bar premises. PW1 questioned him and searched his body and seized a black purse from his pocket. On searching the purse, PW1 found 9 numbers of fake 50 Rupee notes. The accused was arrested. The fake notes and purse were taken into custody as per a mahazar. Crime No. 345/2001 was registered by PW1. Ext.P1 is the FIR and Ext.P2 is the mahazar. On further questioning, PW1 suspected that, the accused, stored fake notes in his house. Therefore, PW1 proceeded to the house of the accused with the accused. He searched house No. 11/345, in Thiruvamkulam village Irumpanam. On search of the bed room of the house, a brown paper cover was found underneath the cot of a bed. From the cover, 16 numbers of fake 50 Rupee notes were recovered. He prepared search list and search memo. Ext.P3 and Ext.P4 are the search list and search memo. PW2, the Head Constable attached to Hill Palace Police Station, also gave similar evidence corroborating the version of PW1. 12. It is true that, there is no independent corroboration to the evidence of PW1 and PW2. But it is proved that, the Police received information and PW1 and PW2 reached Zodiac Bar on **CRL.A.No.1070 OF 2005** 10 20-10-2001, and 9 counterfeit notes were recovered from the possession of the 1[st] accused. The evidence of PW3, the manager of the bar hotel, corroborated the fact that PW1 and PW2 reached the bar hotel on 20-10-2001 and the appellant was arrested from the spot. There is absolutely no case to the appellant, that there is any enmity from PW1 or PW2, against the appellant to implicate him in a false case like this. Simply because there is no independent corroboration to the evidence of PW1 and PW2, this Court cannot reject the evidence of PW1 and PW2. The evidence of PW1 and PW2, regarding the seizure of 9 counterfeit notes is convincing and trustworthy. The evidence of PW1 and PW2 is corroborated with the evidence of PW3, the manager of the bar hotel. Therefore, according to me, the prosecution proved that, 9 counterfeit notes are seized from the body of the 1[st] accused on 20-10-2001, from Zodiac Bar Hotel at Thripunithura. The currency notes are forwarded for the expert opinion. Ext.P24 is the expert opinion. As per the expert opinion, it is clear that the notes seized from the possession of the appellant are counterfeit notes. It is true that the appellants has got a contention that there is long delay in producing the **CRL.A.No.1070 OF 2005** 11 counterfeit notes seized from the appellant before the Court and there is no seal in forwarding note. But these aspects were not challenged before the trial Court by cross-examining the witness concerned. The prosecution proved that the counterfeit notes are seized from the possession of the 1[st] accused and it is seized as per a mahazar. It is also proved that the counterfeit notes are produced before the Court and it is forwarded for expert opinion. The expert also found that they are counterfeit notes. In such circumstances, according to me, there is nothing to disbelieve the evidence adduced by the prosecution to the effect that 9 counterfeit notes are seized from the possession of the appellant/1[st] accused and the notes seized are counterfeit currency notes. 13. As far as the alleged seizure of the counterfeit notes from the house of the appellant, I am not in a position to believe the prosecution case. The prosecution rely Ext.P14 lease agreement to show that, the house from where the counterfeit notes were seized belongs to the appellant/1[st] accused. I perused Ext.P14 lease agreement. The number of the building mentioned in Ext.P14 lease agreement is III/302 of **CRL.A.No.1070 OF 2005** 12 Thiruvankulam Panchayath. But as per Expt P3 search list, the police searched the house bearing No.XI/348 of Thiruvankulam Village. The prosecution has not explained this discrepancy in Ext.P3 and Ext.P14. The evidence of PW15 will not improve the case of the prosecution. PW15 only stated that, he gave building No. III/302 of the Thiruvankulam Panchayat, to the 1[st] accused. He has no case that he was a witness to the seizure of the counterfeit notes from that particular house. From Ext.P3, it is clear that the seizure of the counterfeit note is from a building bearing No. XI/348. Moreover the search of the house as per Ext.P3 search list is not based on any statement of the accused. In other words, it is not a recovery under Section 27 of the Evidence Act. Simply because some counterfeit notes are seized from a building bearing No. XI/348 of Thiruvankulam Vllage, there is no presumption that the accused is the owner or in possession of that building. Therefore, the seizure of the counterfeit notes from building No.XI/348 cannot be connected to the appellant/1[st] accused. 14. Then the next question is whether there is any evidence to show that the accused used the counterfeit notes. **CRL.A.No.1070 OF 2005** 13 The admitted prosecution case is that, the appellant/1[st] accused handed over a counterfeit note to the supplier of the bar hotel. But that supplier was not examined. Only PW3, the manager of the bar hotel is examined. He has no case that he witnessed any incident in which the 1[st] accused handed over a counterfeit note to the supplier. PW3 is only having hearsay evidence regarding the alleged use of the counterfeit notes by the 1[st] accused. Except the evidence of PW3 there is absolutely no evidence to show that the appellant used the counterfeit notes in the zodiac bar. Therefore according to me only an offence under Section 489C IPC is attracted in this case. To attract an offence under Section 489B IPC the prosecution has to prove that, the accused sells to or buys or receives from any other persons or otherwise traffics in or uses as genuine any forged of counterfeit currency notes or bank notes knowing or having reason to believe the same to be forged or counterfeit notes. From the evidence available in this case there is nothing to show that the accused sells to or buys or receives from any other persons or otherwise traffics in or uses as genuine any forged or counterfeit currency notes. In such circumstances according to me, the trial Court **CRL.A.No.1070 OF 2005** 14 erred in convicting the appellant under Section 489B IPC. 15. Then the question is whether the appellant committed the offence punishable under Section 489C IPC. To attract the offence under Section 489C IPC, the prosecution has to prove that, the accused was in his possession any forged counterfeit currency notes or bank notes 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. The prosecution in this case proved that 9 counterfeit notes are seized from the possession of the accused. The number of counterfeit notes seized from the possession of the appellant itself will probablise the case that the appellant was having knowledge that the same is counterfeit notes. If only one or two counterfeit note along with some genuine notes are seized, unless there is some other corroborative evidence to prove that the accused is having knowledge about the counterfeit notes the prosecution may not succeed. But in this case about 9 counterfeit notes along with genuine notes are seized from the possession of the 1[st] accused. He was detained by the Bar Authorities on finding these counterfeit notes. The Police is **CRL.A.No.1070 OF 2005** 15 arresting the appellant/1[st] accused from the bar hotel. These will prove the case of the prosecution that the accused was in possession of 9 counterfeit notes with the knowledge that the same is counterfeit notes. According to me the trial Court, perfectly justified in convicting the accused under Section 489C IPC. 16. Then the next question to be decided is, what is the sentence to be imposed. Admittedly the alleged seizure of the notes are on 20-10-2001. Now 19 years elapsed. The prosecution is able to prove only the offence under Section 489C IPC. Only 9 notes are seized from the possession of the appellant. No criminal antecedents is alleged against the appellant. It is not reported that any other case is registered against the appellant before or after the incident. The counsel for the appellant made available some medical records which will show that the appellant is a cardiac patient. It is the discharge summary issued by the Department of Cardiovascular & Thoracic Surgery, Government Medical College, Kottayam. From the discharge summary, it is clear that the appellant was hospitalized for a period of one month in connection with his **CRL.A.No.1070 OF 2005** 16 cardiac disease. The copy of the discharge summary produced by the appellant will be part of the records. 17. As far as Section 489C is concerned, the sentence of imprisonment is not mandatory. This point is considered by this Court in _**Mohammed Koya v. State of Kerala (2020(3) KLT 441)**_ , which is extracted hereunder: “14. Now regarding the sentence to be imposed on the 1[st] appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 is to be decided. The trial court imposed rigorous imprisonment for 3 years under Section 489C to them. In this case, the offence under Section 489 C is a lesser offence when considered to the offence under Section 489B IPC. Section 489C is a bailable offence. Section 489C IPC deals the possession of counterfeit note. No previous conviction is reported against these appellants. Moreover, the offence alleged to be committed in this case was on 05.06.1998. Now 22 years elapsed. At this distance of time, the appellants need not be sent to jail again. Moreover, the substantive sentence of imprisonment is not mandatory as per Section 489C IPC. In the last paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koaya is entitled to set off for the period from 5.6.1998 to 14.7.1998 and the accused Prasad is entitled to set off from 5.6.1998 to 12.7.1998. Since they already underwent imprisonment for some period, I think, that is enough. In addition to that a fine also can be imposed. Hence, the 1[st] appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 of 2008 are directed to undergo Rigorous Imprisonment for one month each and to pay a fine of Rs.50,000/- each under Section 489C IPC. In **CRL.A.No.1070 OF 2005** 17 default of payment of fine, appellants will undergo simple imprisonment for a period of three months. Appellants are entitled set off for the period they already undergone.” 18. In the light of the above decision, I think, the substantive sentence need not be imposed on the appellant at this distance of time especially in the light of the fact that there is no criminal antecedents alleged against the appellant and considering the health condition of the appellant. Hence, this Crl. Appeal is allowed in part in the following manner: i) The conviction and sentence imposed on the appellant under Section 489B IPC is set aside; ii) The conviction imposed on the appellant under Section 489C IPC is confirmed; iii) The appellant is sentenced to pay a fine of Rs.10,000/(Rupees Ten thousand only). In default of payment of fine, the appellant is directed to undergo simple imprisonment for six months. **Sd/P.V.KUNHIKRISHNAN JUDGE** sa