Mariyappan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 ``` ## **`CRL.A NO. 884 OF 2006`** ``` SC 867/2003 OF TH SESSIONS COURT, KOLLAM ``` ``` CP 136/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` MARIYAPPAN, S/O. VELUKANTHAN, DOOR NO.61, PUTHIA PUTHUR DESOM, THUTHUKUDI, TAMIL NADU. ``` ``` BY ADV M.T.SURESHKUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON 14.02.2022 DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 884 OF 2006 ``` ``` 2 ``` ## **JUDGMENT** The appellant is the sole accused in S.C. No.867/2003 of Sessions Court, Kollam. The aforesaid case arises from Crime No.71/2000 of Punalur Police Station which was later taken over by CBCID (CFS), Thiruavananthapuram and re-numbered as Crime No.31/CR/2000. The offences alleged against the appellant are under Sections 489 B and 489 C of Indian Penal Code. 2. The prosecution case is that the accused was found in possession of 8 counterfeit currency notes of the denomination of Rs.100/-. According to the prosecution, he was found with the aforesaid counterfeit notes while he was attempting to pay bill for consuming food in one “Injackal Hotel” at Punalur. During the transaction, the employees of the hotel got suspicious, apprehended him and informed the Police, who in turn arrested the appellant and registered the case against him. 3. After completing the investigation, final report was submitted before Judicial First Class Magistrate Court – III, Kollam, where the same was taken in file as C.P. No.136/2002. After ``` CRL.A NO. 884 OF 2006 ``` ``` 3 ``` completing legal formalities the case was committed to Sessions Court and it was tried as S.C. No.867/2003. 4. In support of the prosecution case they examined PWs 1 to 9, marked Exts.P1 to P7 and material objects MO1 to MO3 were marked. The contradictions in the statements of PW1 and PW3 with their respective statements recorded under Section 161 were marked as Exts.D1 to D3. After completing the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the said materials, and also submitted a written statement explaining the circumstances under which he came to be in possession of the said currency notes. According to him, he is engaged in sale of textile items and before coming to the hotel for consuming food, he went to a bar restaurant adjacent to the aforesaid hotel and consumed alcohol. According to him, the counterfeit currency notes might have reached in his possession by way of exchange either from the business being run by him or as the balance amount received from the bar hotel when he paid the bill therein. ``` CRL.A NO. 884 OF 2006 ``` ``` 4 ``` 5. After evaluating the entire materials the Sessions Court came to the conclusion that the appellant is guilty of the offences alleged and accordingly he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- with a default sentence to undergo simple imprisonment for a period of one month under Section 489 B of Indian Penal Code. He was sentenced to undergo imprisonment for a period of one year under Section 489 C of Indian Penal Code. It was ordered that the sentences shall run concurrently. Being aggrieved by the aforesaid finding of conviction and sentence imposed, this appeal is filed. 6. Heard Sri.M.T. Suresh Kumar, learned counsel for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 7. The learned counsel for the appellant contends that the prosecution failed in establishing guilt of the accused beyond reasonable doubt. It was pointed out that, the specific case of the prosecution is that, 7 numbers of counterfeit currencies were recovered from the inner pocket of his pants worn by him at the ``` CRL.A NO. 884 OF 2006 ``` ``` 5 ``` relevant time. However, no recovery of the pants was effected by the prosecution and therefore the fact that he had concealed the counterfeit notes in the inner pockets cannot be believed. It is also pointed out that there is delay in producing the counterfeit currency notes before the court. It is also submitted that, there is delay in completing the investigation and submission of final report. Further, contention of the learned counsel for the appellant is that, even if it is assumed for argument sake that the counterfeit currency notes were found in his possession, the same cannot be treated as a conscious possession on his part as there are absolutely no evidence adduced by the prosecution to substantiate the said aspect. Reliance upon the decision rendered by the Hon’ble Supreme Court in **M. Mammutti v. State of Karnataka [AIR 1979 SC 1705]** was also made. 8. On the other hand, learned Public Prosecutor would contend that the prosecution was able to substantiate the allegations against the appellant beyond reasonable doubt. He places reliance upon the evidence of PWs 1 to 4, PWs 6 and 7, which according to him would prove the prosecution case beyond any reasonable doubt. ``` CRL.A NO. 884 OF 2006 ``` ``` 6 ``` In such circumstances, the learned Public Prosecutor seeks for dismissal of the above appeal. 9. The only point that arises is as to whether the prosecution is successful in establishing the offences alleged against the appellant and as to whether the finding of guilt entered into by the Sessions Court on the basis of such evidence is proper or not. The prosecution mainly relying upon the independent evidence of PWs 1 to 4. PW1 is the staff of “Injackal Hotel” at Punalur. He deposed that the appellant came to the hotel on 27.01.2000 and consumed food for an amount of Rs.13/-. When the bill was given to him, he attempted to pay the same with a 100/- rupee note. When the aforesaid currency note was given to the cashier of the hotel (PW3), he doubted the genuineness of the said currency note and gave it back to the appellant informing that it is a counterfeit currency note. He expressed his inability to substitute the said currency note as according to him he was not having any other notes with him. In the meanwhile, the appellant attempted to run away from the hotel which was prevented by PW1 and other staff of the hotel. Immediately, Police was informed and the owner of the ``` CRL.A NO. 884 OF 2006 ``` ``` 7 ``` hotel (PW2) was also informed. PWs 6 and 7 who are the Police officers came to the hotel immediately and examined and searched the body of the appellant, during the course of which, in addition to the currency note which he offered at the counter of the hotel, 7 numbers of counterfeit currency notes were recovered from the inner pockets of his pants. In addition to that four currency notes of denomination of Rs.50/-, which were genuine, also recovered from the left pocket of his pants. The counterfeit currency notes (7 nos) recovered from the inner pocket of the pants were marked as MO1 series, the single counterfeit currency note recovered from his possession while paying the bill to the hotel, was marked as MO2 and the genuine currency notes recovered from him were marked as MO3 series. PW3 is the Cashier of the said hotel and his evidence also is perfectly in tune with that of PW1. He has stated that, upon getting the currency note he realized that it is a counterfeit currency. The reason which he stated for such realization is that, MO2 currency note was thinner than the original note and the colour thereof was also different from the genuine currency notes. PW2 is the owner of the hotel who deposed ``` CRL.A NO. 884 OF 2006 ``` ``` 8 ``` that immediately upon getting information as to the apprehension of a person with counterfeit currency in the hotel, he rushed to the hotel where he could find the Police conducting inspection of the appellant. PW4 is the neighboring shop owner of the hotel and he also deposed in tune with the evidence of PWs1 to 3. PWs 6 and 7 are the Police Officers who came to the spot, apprehended the appellant and conducted body search of him. PW7 is the Sub Inspector of Punalur Police Station. The information of the crime was received by him and immediately thereupon, he rushed to the hotel and apprehended the accused. Thereafter, material objects were seized and the seizure mahazar was prepared which was signed by PW1. The appellant was also arrested and produced before the jurisdictional Magistrate. The material objects seized by PW7 was also produced before the court concerned on 01.02.2000. Later, the investigation was handed over to CBCID (CFS, Thiruvananthapuram) and upon completion of the investigation the final report was submitted. Evidence of PW6 is also in tandem with the evidence of PW7 and other witnesses mentioned above. ``` CRL.A NO. 884 OF 2006 ``` ``` 9 ``` 10. The main contention put forward by the learned counsel for the appellant is that, the prosecution failed to effect the recovery of the pants worn by the appellant herein at the relevant time. It is pointed out that in the absence of the pants, the prosecution case that the counterfeit currency notes were concealed in the inner pockets of the pants cannot be believed. However, I am not inclined to accept the said contention. It is true that the seizure and production of the same would have been a good piece of evidence to support the prosecution case. However, merely because of the reason that the same was not seized and produced, it cannot be concluded that the prosecution case is not sustainable. This is particularly because, all the independent witnesses i.e. PWs 1 to 4 have witnessed the body search of the appellant and all of them have clearly deposed that the recovery of 7 currency notes were made from inner pockets of the pants worn by the appellant. The aforesaid evidence is corroborated by the contemporaneous documents such as Ext.P1 and the evidence of PWs 6 and 7. When all these materials are taken into consideration, I am of the view that, the fact that the prosecution did not produce the pants worn by the appellant at the relevant time, is not at all fatal to the ``` CRL.A NO. 884 OF 2006 ``` ``` 10 ``` prosecution as there are sufficient other materials to substantiate the seizure of counterfeit notes from his possession. 11. Another contention put forward by the learned counsel for the appellant is regarding the delay in producing the article before the court. It is true that even though the seizure was effected on 27.01.2000 the material objects were produced before the court only on 01.02.2000. PW7 has clearly clarified that, during the period from 27.01.2000 to 01.02.2000 the said counterfeit currency notes were kept by him in his custody as the investigation was to be handed over to CBCID. I do not find any discrepancy in the aforesaid explanation. This is particularly because, the counterfeit currency notes were clearly identified by PWs 1 to 4 who were independent witnesses. Their evidence would clearly indicate that, the counterfeit notes 8 in numbers were indeed seized from the possession of the appellant on 27.01.2000. The nature of the counterfeit currency note was clearly explained by the aforesaid witnesses, particularly PW3 who immediately upon seeing note realized that it is a fake currency note. All the said witnesses have identified the material objects as the ``` CRL.A NO. 884 OF 2006 ``` ``` 11 ``` counterfeit currency notes recovered as per Ext.P1 seizure mahazar. In such circumstances, I do not find any merit in the contention of the learned counsel for the appellant in this regard. 12. Another contention of the learned counsel for the appellant is that, the prosecution did not verify the source of the said currency notes. According to the appellant, the aforesaid currency notes would have come into his possession from the business which he is running or from the bar restaurant near to the “Injackal Hotel”, from where he got certain currency notes as a balance, when he paid his bill for consuming alcohol. In such circumstances, it was contended that, mere possession of the counterfeit currency notes by the appellant is not sufficient to establish his conscious possession and the prosecution has an obligation to establish the same by adducing evidence. In this case, as regard to the source of the counterfeit currency notes, apparently no investigation has been conducted. However, that by itself is not sufficient to arrive at the conclusion that the appellant was not guilty of the offences alleged. The offences for which the appellant was charged are under Sections 489 B and 489 C of Indian ``` CRL.A NO. 884 OF 2006 ``` ``` 12 ``` Penal Code. The offence under Section 489 C deals with the act of selling or buying or otherwise trafficking a counterfeit currency by using it as genuine with the knowledge that the same is a counterfeit currency. Section 489 C of Indian Penal Code is dealing with the possession of such currency with the knowledge of its fakeness. In order to establish the aforesaid offences it is not necessary for the prosecution to establish the source of the said counterfeit currency, when there are materials available on record to prove the possession of the appellant as to the aforesaid currency and also the transactions which he made or attempted to be made using said counterfeit currency as genuine. 13. The next aspect is relating to the question of conscious possession of the appellant. It is true that in order to attract the aforesaid offences, the possession of the accused and the attempted use of such currency must be with the knowledge that it is a forged or counterfeit currency or he must have reason to believe that the same is a forged or counterfeit currency. Therefore, it is a necessary ingredient for attracting the aforesaid offences. When we examine the ``` CRL.A NO. 884 OF 2006 ``` ``` 13 ``` evidence available on record in this case, it can be seen that, PWs 1 and 3 who were present when the counterfeit currency was found in possession of the appellant, have clearly deposed the manner in which the incident took place. It is evident that the remaining 7 counterfeit notes were found concealed in the inner pockets of the pants worn by him, whereas the genuine notes which he was having in his possession were kept under ordinary pockets of his pants. It is also discernible from the evidence of PWs 1 and 3 that, when they asked the appellant to give another note for paying bill for Rs.13, he stated that he do not have other notes in his possession. However, the subsequent seizure of counterfeit currency notes as well as the genuine currency notes from the appellant goes against the case put forward by the appellant. The concealment of the counterfeit currency notes and the reluctance shown by the appellant in paying the bill with any other currency would clearly indicate that the possession of the said currency note was with full knowledge of its fakeness. Further, PWs 1 to 3 have also clearly stated that while he was being apprehended he made an attempt to flee from the hotel. When all these aspects are taken into ``` CRL.A NO. 884 OF 2006 ``` ``` 14 ``` consideration, the only irresistible conclusion possible is that, the appellant was possessing the same with full knowledge of the same. 14. There is yet another reason for which the contention of the appellant regarding the lack of conscious possession of the counterfeit currency cannot be accepted. It is also clear from the evidence of PW3 that he could realize the fakeness of the currency note immediately upon seeing the same. PW3 has also specifically mentioned the reason for such realisation as according to him, MO2 currency note was thinner than the other currency notes and the colour was also different. In **Mammutti** ’s case (supra) which is relied upon by the learned counsel for the appellant, the principle laid down is that if the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit, then it can be an indication of conscious possession. In this case, PW3 identified the fakenes of the note, on a mere look at it as there are visible differences in the said note with the genuine one . Thus it is evident that fact that the nature of fakeness of the currency note was visible on a mere look at the same and it is a relevant factor while deciding the question of ``` CRL.A NO. 884 OF 2006 ``` ``` 15 ``` conscious possession of the accused. In this case the evidence of PW3 as to the nature of the currency notes and also the other evidence which I have already discussed in the above paragraph, would clearly lead to the conclusion that the possession of the appellant was a conscious possession with the full knowledge of its fakeness. Thus the contention of the learned counsel in this regard is also not acceptable. 15. Another contention is regarding the delay in completing the investigation. However, I am of the view that merely because of the reason that there occurred some delay in completing the investigation that by itself is not a ground to get an order of acquittal for the appellant, unless there is a specific case for the appellant that it caused prejudice to him. In this case, no case of prejudice has been put forward by the appellant. On the other hand, there are overwhelming evidence in support of the prosecution case which cannot be ignored on the ground of mere delay in completing the investigation. Thus, when all the above aspects are taken into consideration, I am of the view that there is no merit in the contentions ``` CRL.A NO. 884 OF 2006 ``` ``` 16 ``` put forward by the appellant and the appeal is liable to be dismissed. Accordingly, the appeal is dismissed by confirming the order of conviction and sentence passed against the appellant in S.C. No.867/2003 of Sessions Court, Kollam. Sd/- ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ```