Maniyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** **CRL.A NO.906 OF 2006** **AGAINST THE JUDGMENT & SENTENCE DATED 19.04.2006 IN S.C. NO.55/2003 OF THE ADDITIONAL SESSIONS JUDGE (FAST TRACK III), THIRUVANANTHAPURAM.** **C.P. NO.41/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, TRIVANDRUM.** ## **APPELLANT/PETITIONER/ACCUSED:** **MANIYAN, S/O.S.KUTTAN PANICKER, LEKSHAM VEEDU COLONY, PULIYARAKONAM, KAVINPURAM, THURUTHUMMOOLA, VILAPPIL VILLAGE, NEYYATTINKARA TALUK.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR SRI.P.K.SHIYAS SMT.VEENA KRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTUR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. SANAL P. RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **CRL.A NO.906 OF 2006** **==> picture [38 x 11] intentionally omitted <==** ## **JUDGMENT** This appeal is at the instance of the 2[nd] accused in S.C.No.55/2003 on the file of the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram, filed under Section 374(2) of the Code of Criminal Procedure and the appellant impugns conviction and sentence dated 19.04.2006 imposed against him, in this appeal. Respondent herein is the State of Kerala represented by the Public Prosecutor. 2. Heard the learned counsel for the appellant Adv. Sasthamangalam S. Ajith Kumar and Sanal P. Raj, the learned Public Prosecutor for the State. Perused the trial court records. 3. The prosecution case is that a reliable information received to the effect that the accused in this case were indulged in counterfeiting currency notes with an intention to use and possess the same as original currency notes. Accordingly, crime was registered alleging commission of offence under Sections 489A, 489B, 489C, 489D and Section 120(B) read with Section 34 of the Indian Penal Code. 4. On investigation of the Crime registered as CBCID -3- ## **CRL.A NO.906 OF 2006** No.34/CR/87, final report laid before the Magistrate Court and the case was committed to the Sessions Court for trial and disposal. The Sessions Court made over the case to the Additional Sessions Court-III, for trial and disposal. 5. The Additional Sessions Court, after completing the pre-trial legal formalities framed charge for the said offences and tried accused Nos.1, 2, 4, 5 and 6 and split up the case against the accused No.3 who had been absconding. 6. During trial, PWs1 to 16 were examined and Exts.P1 to 15 were marked on the side of the prosecution. MO1 to MO28 series also were marked. 7. Thereafter, the accused were questioned under Section 313 Cr.P.C. and provided them opportunity to adduce defence evidence. But no defence evidence was adduced. 8. The learned Sessions Judge, on analysing the evidence, found that accused Nos.1, 2, 4, 5 and 6 are not guilty of the offences and they were acquitted. But the 2[nd] accused/appellant was found guilty for the offence punishable under Section 489D of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5,000/-. -4- ## **CRL.A NO.906 OF 2006** 9. While assailing the above conviction and sentence, it is argued by the learned counsel for the appellant that the recovery of MO2 to MO5 as per the disclosure statement given by the appellant herein marked as Ext.P6(a) is the sole evidence relied upon by the Sessions Court to convict and sentence the appellant under Section 489D of the Indian Penal Code. The learned counsel would also point out that, though the crime was reigstered as early as in the year 1987, the appellant was arrested only in the year 1993 and thereafter, much belated recovery of MO2 to MO6 were effected. It is also submitted that PWs10 and 11, two independent witnesses examined by the prosecution to prove Ext.P6 Mahazar turned hostile for prosecution and they even denied their signature in Ext.P6. It is also submitted that, though Ext.P6 was prepared on 11.08.1993, the same reached in the court only on 27.08.1993. Therefore, the authenticity of Ext.P6 is in doubt and the prosecution not given any explanation for the delay in producing Ext.P6 to the court in time. According to the learned counsel, merely relying on recovery evidence which had effected at a belated stage where the independent witnesses turned hostile, it is not safe to fasten criminal culpability on the appellant. Therefore, the appellant is entitled to get benefit of doubt and it is not safe to -5- ## **CRL.A NO.906 OF 2006** hold that the appellant possessed MO2 to MO5 instruments for counterfeiting currency-notes or bank-notes. Therefore, he is entitled to acquittal. 10. It is also submitted by the learned counsel for the appellant that in the decision reported in **Bijender @ Mandar v. State of Haryana [2021 KHC 6685]** , the Apex Court held that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. 11. Per contra, it is submitted by the learned Public Prosecutor that, apart from the evidence of PW15 and recovery of MO2 to MO6 as well as MO7 and MO8 and Ext.P6, the evidence of PW7 is also relevant to hold that the appellant herein transported the above items for the purpose of making counterfeit notes. Therefore, the recovery is not in doubt and the same is established without any shadow of doubts. Therefore, the learned Public Prosecutor pressed for sustaining the conviction and sentence imposed on the appellant. 12. Before addressing the rival arguments, I am inclined to -6- ## **CRL.A NO.906 OF 2006** refer the ingredients to attract offence under Section 489D of the Indian Penal Code. First of all, I would like to extract Section 489D of the IPC which reads as under:- “ **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 disposes 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.” On a plain reading of the above legal provision, it is clear that whoever makes or performs, any part of the process of making, or buys or sells or disposes 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, the accused shall be punished. 13. The essential ingredients to constitute an offence under Section 489D are as under:- -7- ## **CRL.A NO.906 OF 2006** (i) That the accused was involved in making or performing any part of the process of making or buying or selling or disposing of such machine; (ii) That the accused to be found in possession of any machinery (instrument or material) for the purpose of being used for counterfeiting currency notes or bank notes; (iii) The accused did so knowingly (or having reason to believe) that it is intended to be so used. 14. The burden of proof is on the prosecution to show that the accused was occupying the house where from the instruments for forging currency notes were recovered and that he had joint possession or control over the instruments or at least they were brought with his knowledge **[(1953 Crl.LJ 1249), Thommankunju v. State of TC]** . The onus of proving the fitness of the materials for the purpose of counterfeiting and the intention of the accused to use them for the said purpose also lay on the prosecution **[(12 Crl.LJ 377), Abdul Rahman v. Emperor]** . 15. In order to bring home an offence under Section 489D of IPC, the prosecution must establish the following; (a) That the increminating article in question is machinery, instrument or material necessary for or used in counterfeiting or forging a currency note or bank-note. -8- ## **CRL.A NO.906 OF 2006** (b) That the accused either made or performed any part of the process of making or brought or sold or disposed of or had in possession any machinery etc., aforesaid; (c) That the object of the accused was that such machinery etc., aforesaid might be used for the purpose of forging or counterfeiting currency notes or bank-notes or, the accused knew or had reason to believe that the same was intended to be used for such purpose. To establish a charge under Section 489D of the Indian Penal Code, 1860, what the prosecution has to prove in the first place is that the machinery, instrument or material found in the possession of the accused person is such as would be used for the production of a counterfeit note, and if that is proved, the next element which is to be proved is that the accused knew or intended that such articles would be used for the purpose of counterfeiting currency notes. 16. A relevant and pertinent aspect is the connection between counterfeiting and the instruments. Where there is no evidence to show that the printing machine found on the land of the accused had any connection with the printing of the counterfeit notes found in possession of the accused, he could not be held guilty under Section 489D of the Indian Penal Code **[(1976 Crl.LJ 228) (Karnataka) State of Karnataka v. Ramdas]** . 17. In this matter, MO2 includes 7 blocks of 10 rupee -9- ## **CRL.A NO.906 OF 2006** fake currency note, MO3, a metal block carrying symbols of a 10 rupee currency note, MO4, paper with inner printing of 10 rupee fake notes and MO5, an old fake 10 rupee currency note with inner printing alone. MO6 is a brown paper and MO7 is express magazine. 18. PW15 who carried out the major part of investigation given evidence that when PW7 was questioned, he came to know the address and whereabouts of the accused in the year 1991 and PW7 given evidence that a printing machine with the address of the appellant was received and when notice was issued in the said address, the same was returned 'unserved'. The Sessions Court found that the evidence of PW15 and the articles recovered in pursuance of Ext.P6(a) disclosure statement as per Ext.P6, mahazar is the only evidence available before the court to increminate the appellant. At the same time, it has come out in evidence through PW15 that, though he received information from PW7 in the year 1991 that a printing machine addressed to the appellant was received by PW7, the appellant was arrested on 10.08.1993 only and thereafter, the recovery was effected. In -10- ## **CRL.A NO.906 OF 2006** this matter, the prosecution failed to recover even a single 10 rupee fake currency note to establish that MO2 to MO5 were used for counterfeiting. It is true that PW15 alone supported the recovery effected after 5 years of registration of the crime, that too after having knowlege regarding the same in 1991. Similarly, as pointed out by the learned counsel for the appellant, Ext.P6 reached the court at a belated stage. Thus evidently, the recovery effected after 5 years of the registration of the crime is in the midst of doubts. It is difficult to believe that the appellant kept the MOs2 to 5 for a period of 5 years, at his dwelling house, even after registration of the crime, arraying him as an accused therein. In fact, if the recovery evidence is in the midst of doubts, conviction on its sole basis is not safe. That apart, in this matter, no convincing evidence forthcoming to hold that the accused possessed MOs2 to 5 knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency-note or bank-note. Thus, it appears that the prosecution evidence is not sufficient to hold that the appellant committed offence under Section 489D of the Indian -11- ## **CRL.A NO.906 OF 2006** Penal Code beyond reasonable doubt. Therefore, the benefit of doubt shall go in favour of the accused. In the result, this appeal stands allowed. The conviction and sentence imposed by the Sessions Court impugned herein stand set aside. The accused is acquitted and is set at liberty forthwith and his bail bond stands cancelled. Sd/- **A. BADHARUDEEN JUDGE** bpr