Muhammed Ali Kunnanathu v. State of Kerala

CRL.A.No.2067 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **CRL.A.No.2067 OF 2005** **AGAINST THE JUDGMENT IN SC 66/2005 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.III ADHOC), MANJERI** ## **APPELLANT/ACCUSED:** **MUHAMMED ALI KUNNANATHU, S/O. MUHAMMED, MANATHUMANGALAM, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE,, PERINTHALMANNA POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.2067 OF 2005 2 ## **JUDGMENT** ## **Dated this the 8th day of October 2020** The appellant is the sole accused in S.C.No.66/2004 on the file of the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri. The above case is chargesheeted by the Deputy Superintendent of Police, Crime Branch CID, Kozhikode, alleging the offences punishable under Section 489B and 489C IPC. 2. The prosecution case is that on 29.10.2001 at about 5 pm, the accused bought meat by tendering a counterfeit currency note having Rs.100/- in denomination from the shop of CW1 situated at Manathumangalam knowing that the note is a counterfeit currency note and used the same as genuine and thereby committed the offences under Section 489B and 489C. On knowing about the attempt of the accused, the matter was informed to the police. On receipt of the information, the Sub Inspector of Police, Perinthalmanna, came and seized the counterfeit currency notes from the custody of accused who was prevented from escaping from the incident spot by local people by causing obstruction. The Sub Inspector of Police arrested the accused. Thereafter, Crime No.825/2001 of Perinthalmanna CRL.A.No.2067 OF 2005 3 Police Station was registered. Subsequently, the case was investigated by the Crime Branch. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P7 are the exhibits. MO1 is the material object. 4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 489B and 489C IPC. The accused is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- under Section 489B IPC. In default of payment of fine, the accused is directed to undergo simple imprisonment for one year. The accused is also directed to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- under Section 489C IPC. In default of payment of fine, he is directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The counsel for the appellant submitted that even if the entire allegations are accepted, the offence under Section 489B IPC is not made out. The counsel submitted that the CRL.A.No.2067 OF 2005 4 prosecution relied the evidence of PW1 and PW2 to prove the offence under Section 489B IPC. PW1 and PW2 completely turned hostile to the prosecution. In such circumstances, the counsel submitted that the offence under Section 489B IPC is not made out. The counsel submitted that as far as Section 489C IPC is concerned, there is no independent corroboration to the official witnesses. The counsel submitted that, there is only the evidence of PW3 and PW5 to prove that the counterfeit notes were seized from the possession of the appellant. There is absolutely no corroboration to the same. The counsel submitted that PW1 and PW5 says that they signed from the police station. The counsel submitted that, that itself shows that the case of PW3 and PW5 cannot be believed. The counsel submitted that the trial court wrongly convicted the appellant under Section 489B and 489C IPC. 6. The Public Prosecutor submitted that, the trial court after considering the entire oral and documentary evidence concluded that the appellant committed the offence under Section 489B and 489C IPC. The Public Prosecutor submitted that the trial court considered certain circumstances to conclude that the appellant committed the offence under Section 489B IPC also. The Public Prosecutor submitted that CRL.A.No.2067 OF 2005 5 simply because PW1 and PW2 are hostile witnesses their evidence cannot be neglected. The trial court after considering the evidence of the hostile witnesses and evidence of the detecting officer and accompanying officer concluded that the accused committed the offence under Section 489B and 489C IPC. Therefore, the Public Prosecutor submitted that this Court may not interfere with the well considered judgment of the trial court. 7. The point for consideration in this case is whether the appellant committed the offence under Section 489B and 489C of IPC. 8. Altogether seven witnesses were examined in this case. PW1 is the owner of the shop where the accused tried to handover counterfeit currency note. PW2 is an employee in that shop. PW3 is the driver of the police jeep in which PW5, the Sub Inspector of Police, went to the place of occurrence. PW4 is the scene mahazar witness. PW6 is the detecting officer, CBCID, who conducted investigation. PW7 is the officer who laid charge. 9. The prosecution case is that PW1 is a meat shop owner. According to the prosecution, the accused handed over a counterfeit currency note to him. But when PW1 was CRL.A.No.2067 OF 2005 6 examined before the lower court, he completely turned hostile to the prosecution. He has not even identified the accused. He only says that a counterfeit note was received in the shop. He was not able to say that the accused handed over the same to him. Similarly PW2 is the employee of PW1. He also turned hostile to the prosecution. He was also not able to identify the accused. He also says that he cannot say whether the appellant handed over the counterfeit note. To prove the offence under Section 489B IPC, the prosecution has to prove that the accused sells or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. The prosecution was trying to establish the offence under Section 489B of the I.P.C., with the help of PW1 and PW2. PW1 and PW2 completely turned hostile to the prosecution. Admittedly, the Police Officials reached the place, after the alleged handing over of the counterfeit note by the accused to PW1. Therefore, there is no eye witness to the alleged handing over of the counterfeit note by the appellant to PW1 or PW2. In such circumstances, the Court cannot conclude that, there is evidence to show that, the appellant handed over one CRL.A.No.2067 OF 2005 7 counterfeit note to PW1. The Trial Court concluded like that without any oral evidence or even circumstantial evidence. As I stated earlier, the Detecting Officer and the accompanied officer has not seen the above incident. No other witness were examined to prove that, there was handing over of this counterfeit note by the appellant to PW1. In such circumstances, it is very difficult to conclude that, the appellant committed the offence under Section 489B of the I.P.C. 10. On a perusal of the Exhibit P1, seizure mahazar will show that, on 29.10.2001, the Sub Inspector of Police, Perinthalmanna got an information that, a person is detained by the people with counterfeit note. Therefore, the Sub Inspector proceeded to the place and found the appellant detained by the public. As per the seizure mahazar, on questioning the appellant and searching the body of the appellant, four counterfeit notes were seized from the shirt pocket of the appellant. These four counterfeit notes were seized from the possession of the appellant. As per Exhibit P1 seizure mahazar, three of the counterfeit notes were with the same number. The counterfeit notes were seized as per Exhibit P1, seizure mahazar and the appellant was arrested. This part of the statement in the Exhibit P1, seizure mahazar is CRL.A.No.2067 OF 2005 8 corroborated through the oral evidence of PW3 and PW5. PW3 and PW5, categorically deposed before the lower Court that, four counterfeit notes were seized from the shirt pocket of the accused. It is also clear from the evidence that, three of the counterfeit notes were with the same number. That shows that, the appellant was in possession of counterfeit notes, knowing that it was counterfeit notes. Actually, the appellant was detained by the public and he was arrested by the Police after seizing these four counterfeit notes. For these facts, it is clear that, the accused was in possession of four forged counterfeit currency notes on 29.10.2001. There is clinching evidence to prove the same. This amounts to an offence under Section 489C of the I.P.C. Therefore, the Trial Court perfectly justified in convicting the appellant under Section 489C of the I.P.C. Then the question is what is the sentence to be imposed under Section 489C of the I.P.C. The trial court imposed imprisonment for three years and to pay a fine of Rs. 10,000/- under Section 489C of the I.P.C. Admittedly, only four counterfeit notes were seized from the appellant. There is no evidence to show that, the appellant used those counterfeit notes. There is no evidence about the source of these notes. The alleged seizure of the counterfeit notes was in 2001. Now, 19 years over. No CRL.A.No.2067 OF 2005 9 other criminal antecedents reported against the appellant by the learned Public Prosecutor. A reading of Section 489C will show that, the imprisonment is not mandatory. Section 489C says that, the accused can be punished with imprisonment for either description for a term which may extend to 7 years or with fine or with both. A perusal of the page 16 of the impugned judgment, it can be seen that, the appellant was arrested on 29.10.2001 and he was released on bail only on 17.11.2001. Therefore, there is pretrial detention for the period from 29.10.2001 to 17.11.2001. Considering the entire facts and circumstances of the case, I think the sentence can be reduced and the fine amount can be increased. This Court in **Muhammed Koya v. State of Kerala** [2020(3) KLT 441] considered this point like this: “14. Now regarding the sentence to be imposed on the 1st 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 CRL.A.No.2067 OF 2005 10 489C IPC. In the last paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koya 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 1st 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 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”. 11. In the light of the above decision, I think, I am justified in reducing the substantive sentence after enhancing the fine amount. In the result, this Criminal Appeal is allowed in part in the following manner. 1. The conviction and sentence imposed on the appellant under Section 489B of I.P.C. is set aside. 2. The conviction imposed on the appellant under Section 489C of I.P.C is confirmed. 3. The sentence imposed on the appellant under Section 489C of the I.P.C. is CRL.A.No.2067 OF 2005 11 set aside. 4. The appellant is directed to undergo rigorous imprisonment for 15 days and to pay a fine of Rs.25,000/- In default of payment of fine, the accused is directed to undergo simple imprisonment for two months. 5. The set off is allowed. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab/LU**