Pudussseri Saidalavi v. State of Kerala; Karimabana Kabeer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945** **CRL.A NO. 174 OF 2007** **AGAINST THE JUDGMENT IN S.C.NO.569/2003 DATED 10.01.2007 OF THE FILES OF ADDITIONAL SESSIONS JUDGE (ADHOC)NO.I, MANJERI APPELLANT/1ST ACCUSED:** **PUDUSSERI SAIDALAVI,** **S/O.MOHAMMED, OORNGATIRI AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH CID (CFS), KOZHIKODE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **SMT.SEENA C, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2024, ALONG WITH CRL.A.224/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **Crl.A.Nos.174 and 224 of 2007** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 CRL.A NO. 224 OF 2007** **AGAINST THE JUDGMENT IN S.C.NO. 569/2003 OF THE ADDITIONAL SESSIONS COURT (FAST TRACK COURT NO.III), MANJERI DATED 10.01.2007** ## **APPELLANT/ACCUSED NO.2:** **KARIMABANA KABEER, S/O.MAMMED, OORANGATTIRI, MALAPPURAM DISTRICT.** ## **RESPONDENT/STATE:** **THE STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH C.I.D., KOZHIKODE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31.** **BY ADV. SMT.SEENA C, PUBLIC PROSECUTOR** **SHEEBA THOMAS, PUBLIC PROSECUTOR** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION** **ON 13.02.2024, ALONG WITH CRL.A.174/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **Crl.A.Nos.174 and 224 of 2007** ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal Nos.174 and 224 of 2007 ----------------------------------------------------------Dated this the 13[th] day of February, 2024** ## **J U D G M E N T** Accused Nos.1 and 2 in Sessions Case No.569 of 2003 before the Additional Sessions Court (Adhoc-I), Manjeri respectively are the appellants. They were convicted as per the impugned judgment for the offence punishable under Section 489C read with Section 34 of the Indian Penal Code, 1860 (IPC). Each of them was sentenced to undergo rigorous imprisonment for a period of three years. They assailed the said judgment of conviction in this appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The accusation against them and the co accused is the following: At about 8.00 p.m on 27.01.2001, appellants 1 and 2 were found possessed with counterfeit currency notes at the public road near the primary health centre at Kallumpuram Kondotty Road. The 1[st] appellant was in possession of 14 notes 4 **Crl.A.Nos.174 and 224 of 2007** of 100 Rupee denomination and the 2[nd] appellant was in possession of 40 notes of 100 Rupee denomination. They bought the currency notes from the 3[rd] accused who in turn obtained the same from the 4[th] accused. 3. The Appellants along with accused No.3 were tried on a charge for the offence under Section 489 B and 489 C read with Section 34 of the IPC. The 4[th] accused was absconding. While the 3[rd] accused was acquitted, the appellants were convicted and sentenced for the offence under Section 489 C of the Code. The respective appellants would contend that their conviction is wrong and based on no evidence. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. PW1 was the Sub Inspector and PW2 was the additional Sub Inspector in Thirurangadi Police Station during the relevant time. Both of them deposed before the Court regarding the arrest of the appellants and seizure of the counterfeit currency notes from them. Their versions 5 **Crl.A.Nos.174 and 224 of 2007** regarding the arrest and seizure are more or less similar. Going by that version, at about 8.00 p.m on 27.01.2001, on the basis of a reliable information, they went to Kunnumpuram junction, which was in Kulappuram-Kondotty Road. They saw two persons getting perplexed on seeing the police party. On the body search, the 1[st] accused had a paper packet in his loin which contained 40 currency notes. Similarly the 2[nd] accused was in possession of 14 currency notes which also was enclosed in paper and inserted in his loin. It is the version of PW1 that 17 notes of the 40 currency notes found in the possession of the 1st accused were bearing the same serial number and 23 notes bearing another common serial number. The currency notes in the possession of the 2nd accused also were bearing a common serial number. From those facts, and also difference in the colour, size, etc PW1 inferred that the said currency notes were forged. He therefore seized the currency notes under a mahazar which is Ext.P2. 6. Besides PWs 1 and 2, two independent witnesses 6 **Crl.A.Nos.174 and 224 of 2007** were cited by the prosecution to depose about the arrest of accused Nos.1 and 2 and seizure of the currency notes from their possession. PWs 3 and 4 however, denied having seen such seizure and their signatures in Ext.P2 mahazar. Therefore there is no independent evidence in order to prove the arrest of accused No.1 and 2 and the seizure of currency notes from their possession. 7. Now, the question is whether evidence of PWs 1 and 2 who are police officers is sufficient and reliable in order to prove the case of the prosecution. 8. In T **ahir v. State (Delhi), (1996) 3 SCC 338,** while dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” 9. The Apex Court in **Karamjit Singh v. State** ## **(Delhi Administration) [AIR 2003 SC 1311]** held that,- 7 ## **Crl.A.Nos.174 and 224 of 2007** “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” 10. The learned counsel for the appellants pointed out three inconsistencies as sufficient to discredit veracity of PWs 1 and 2. Exts.P1(a) and P1(b) arrest memos do not contain the signature of PW1 who claimed to have effected the arrest. There are no witnesses in it either. Therefore the arrest is shrouded by suspicion. From none of the documents it can be seen that there was light at the place of occurrence. Thirdly, it is pointed out that the currency notes said to have been seized were produced in court after about a week and that makes the evidence of PWs 1 and 2 regarding the seizure doubtful. 11. Exts.P1(a) and P1(b) contain signature of the 8 **Crl.A.Nos.174 and 224 of 2007** respective accused. Even though there is a column for signing by the arresting officer, that column remains blank. During examination, PW1 as well as PW2 explained that there occurred omission in signing the said documents. Arrest memo is insisted in order to ensure that the officer making the arrest of a person satisfies the requirements and parameters to be followed at the time of arrest. But when the accused signed the arrest memo and without delay, the arrestees were brought to the police station and produced before the court, the said lapse cannot affect the evidence brought on record, which if found reliable. Therefore the reason that the arresting officer did not sign Ext.P1(a) and P1(b) does not discredit the veracity of PWs 1 and 2 or has the effect of discarding the prosecution case altogether. 12. PWs 1 and 2 reached the place in their official vehicle. Light from it would have been available very much there. When there is enough evidence to prove that the arrest and seizure were done at the place and a mahazar was prepared simultaneously there is no scope to contend that 9 **Crl.A.Nos.174 and 224 of 2007** there was not enough light. In the matter of delay also there cannot be a valid contention since identity of the seized currency notes were stated in the mahazar and the same was already submitted in court. 13. It is submitted by the learned counsel for the appellant that there is absolutely no evidence to show that the respective accused possessed such currency notes knowing it to be forged. The evidence of PW1 or PW2 is not enough to prove such a fact even believing the entire case of the prosecution. Such a fact could not be said to be proved and for that reason itself, the prosecution has to fail. As stated, the version of PWs 1 and 2 are that on seeing the police party, accused got perplexed. The currency notes they possessed were having common serial numbers. When bulk quantity of currency notes of such a nature were possessed by accused Nos.1 and 2 which on examination in the security press are proved to be counterfeit notes, it cannot be inferred that they possessed the same innocently. 14. It is the burden of the prosecution to prove the 10 **Crl.A.Nos.174 and 224 of 2007** following facts, in order to convict a person for an offence under Section 489C of the IPC: 1. Accused was in possession of forged or counterfeit currency notes or bank notes 2. Knowledge or as reason to believe the note is counterfeit. 3. Intention to use the counterfeit notes as genuine or that it may be used as genuine. 15. Evidence of PW1s and 2 tally each other. Contents of Ext.P3 which is a contemporaneous document prepared at the time of arrest and seizure contain all the details as stated to by them before the court. The fact that the independent witnesses turned hostile to the prosecution does not affect the credibility of PWs 1 and 2. From the version of PW1, it can be seen the suspicious circumstances in which accused Nos.1 and 2 possess such currency notes which are proved to be counterfeit. The reason pointed out to disbelieve their evidence is found untenable. In that context, the learned counsel for the appellants submitted that unless there is positive evidence to show that the accused possessed counterfeit notes that they knew it to be counterfeit and that 11 ## **Crl.A.Nos.174 and 224 of 2007** they have intention to use it, there can be no conviction. It is also submitted that such evidence should be put to the accused and in that regard the learned counsel placed reliance on **M.Mammutti v. State of Karnataka [1979 (4) SCC 723].** 16. What was held in the said decision is that the prosecution is obliged to prove that the accused possessed the currency notes with sufficient mens rea that it were counterfeit notes and possessed for the purpose of using it as genuine. Also that evidence concerning such facts should be put to the accused in the examination under Section 313 of the Code. In that case, the accused was booked while negotiating currency notes for the purpose of making payment for the good he purchased. When a single currency note was negotiated, the Apex court took the view that there should be positive evidence to prove the mens rea. 17. Facts of this case are totally different. In this case, the circumstances in which the accused Nos.1 and 2 were found possessed with counterfeit currency notes, which are 12 ## **Crl.A.Nos.174 and 224 of 2007** adverted to above, certainly inure an irresistible inference that they possessed it for the purpose of using it as genuine. All the aforesaid evidence as deposed by PW1 were put to both the accused during 313 examination also. Therefore the law laid down in the aforesaid decision does not help the appellants to assail the impugned judgment. 18. Having regard to what has been stated above, I hold that the trial court correctly appreciated the evidence and concluded that accused Nos.1 and 2 possessed MOs 1 to 3 series currency notes for the purpose of using it as genuine knowing it to be counterfeit notes. So their conviction is not liable to be interfered with. 19. Each of the accused was sentenced to undergo rigorous imprisonment for a period of three years. The incident occurred on 27.01.2001. A long period has elapsed, and accused Nos.1 and 2 had undergone the ordeal of trial and much mental agony on account of the pendency of these appeals. Although the offence is serious in nature taking into account the aforesaid aspects, I am of the view that a lenient 13 **Crl.A.Nos.174 and 224 of 2007** view in the matter of sentencing can be taken. Accordingly, the conviction is confirmed and the sentence is modified. Each of accused Nos.1 and 2 is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.20,000/-each. In default of fine, they have to undergo rigorous imprisonment for a further period of two months. Sd/- **P.G. AJITHKUMAR, JUDGE** PV