Rajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **CRL.A NO. 373 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.61/2000 DATED 24.03.2003 PASSED BY THE COURT OF SESSIONS JUDGE, KOZHIKODE.** **APPELLANT/ACCUSED NO.1:** **RAJAN, S/O. CHAMI, PARACHALIL HOUSE, VILLUMPARA, AMBEDKAR COLONY, MARUTHOMKARA, KOZHIKODE.** **BY ADV SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH,, C.I.D. (C.F.S), KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **SRI SANGEETH RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 373 OF 2006** -2- ## **JUDGMENT** This appeal has been filed challenging the conviction and sentence imposed on the appellant/1[st] accused in S.C.No.61 of 2000 on the file of the learned Sessions Judge, Kozhikode in a prosecution under Sections 489(B) and 489(C) of the Indian Penal Code. 2. The gist of the prosecution case against the appellant/1[st] accused is that PW1, the Sub Inspector of Police and PW2, the Head Constable of Police while on patrol duty received information that the appellant/1[st] accused was in possession of counterfeit currency notes and that it is kept in the house of the 1[st] accused/appellant in Villumpara Ambedkar Colony in Maruthomkara amsom and desom. Accordingly, they prepared a search memo and forwarded the same to the jurisdictional court and proceeded to search the house of the 1[st] accused. The search was conducted in the presence of two independent witnesses (PWs 3 and 4). The 1[st] accused pointed out the place where the currency notes had been kept and the same were seized and the 1[st] accused was arrested. It is also alleged that the 1[st] accused had attempted to use fake currency notes to purchase arrack from the arrack shop where PW6 was the salesman and in the presence of PW7, one Bhaskaran. Following investigation of the case, a **CRL.A NO. 373 OF 2006** -3- final report was filed before the Judicial First Class Magistrate Court, Nadapuram which was committed to the Sessions Court for trial. Charges were framed under Sections 489(B) and 489(C) of the Indian Penal Code. The accused pleaded not guilty. The prosecution examined PWs1 to 22 and marked Exts.P1 to P27 documents and identified and marked MOs 1 to 27. Following closure of prosecution evidence, the 1[st] accused was questioned under Section 313 of the Cr.P.C. No defence evidence was let in. 3. On an appreciation of the prosecution evidence, the learned Sessions Judge found the 1[st] accused guilty of having committed the offences under Sections 489(B) and 489(C) of the Indian Penal Code. The other accused namely, accused Nos.2 and 3 who were alleged to have provided the notes to the 1[st] accused were acquittal. 4. Sri.Sunny Mathew, the learned counsel appearing for the appellant/1[st] accused refers to the deposition of PW1 (the Sub Inspector of Police), PW2 (the Head Constable of Police), PW6 (the Salesman of the arrack shop) and PW7 (who was stated to be the person who witnessed the appellant/1[st] accused trying to use the counterfeit currency in the arrack shop) and to Ext.P12 ownership certificate which was marked through PW11 (Secretary of Maruthomkara Grama Panchayat). He states that it is **CRL.A NO. 373 OF 2006** -4- the specific case of PW1 that the fake currency notes were seized from the house of the 1[st] accused bearing No.V/427 of Maruthomkara Grama Panchayat whereas Ext.P12 ownership certificate shows that as per the assessment register, the building belongs to one Smt.Cheriya Kappummel Sarada and that there is no evidence to show any relationship between the aforesaid Sarada and the 1[st] accused. According to the learned counsel, this is sufficient to cast serious doubts on the seizure itself. He further contends that the evidence of PW6 shows that the appellant/1[st] accused had tried to use counterfeit currency notes while paying for arrack consumed from the shop where PW6 was the salesman. The further evidence of PW6 is that he had suspected the notes to be fake and had asked the appellant/1[st] accused for other notes when again he gave two other counterfeit currency notes and when questioned he tried to burn the notes and on being unsuccessful in buring the notes, he tore up the notes and went away from the shop. PW6, according to the learned counsel, has also deposed that the entire incident was witnessed by PW7 Bhaskaran. The learned counsel contends that the reading of the deposition of PW7 shows that he had not supported the prosecution case. It is also submitted that there was no scientific evidence to prove that any counterfeit currency **CRL.A NO. 373 OF 2006** -5- note had been used with the arrack shop, and therefore, the offence under Section 489(B) will, at any rate, not be attracted. The learned counsel also submits that there is no proper identification of the accused and relies on a Division Bench of this Court in **Girishan v. State of Kerala [2016 (2) KLT SN 2]** in support of contention that where there is lack of proper identification, the accused is entitled to acquittal. 5. The learned Public Prosecutor, on the other hand, would contend that there is clear evidence in this case regarding the possession and use of counterfeit currency by the appellant/1[st] accused and that the fact of the currency in question being counterfeit was established through scientific evidence. He refers to the deposition of PW1, 2 and 6 to contend that there was proper identification of the accused by the witnesses. He would also submit that the fact that PWs3 and 4 had turned hostile does not in any manner disprove the prosecution case regarding seizure of counterfeit currency from the house being occupied by the appellant/1[st] accused. According to him, the fact that there was no relationship between the owner of the house as recorded in the assessment register of the local authority and the appellant/1[st] accused is no reason to doubt genuineness of the seizure in the light of the overwhelming evidence regarding the **CRL.A NO. 373 OF 2006** -6- seizure of the counterfeit currency from the possession of the appellant/1[st] accused. 6. I have considered the contentions raised. An offence under Section 489(B) of the Indian Penal Code would be attracted when a person sells to, 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 evidence in this case to attract the offence under Section 489(B) is the evidence of PW6, the salesman of the arrack shop where allegedly, the appellant/1[st] accused had tried to use counterfeit currency as genuine. The evidence of PW6 shows that the appellant/1[st] accused had tried to use currency which he believed to the counterfeit in the shop and further that on being questioned the appellant/1[st] accused had tried to burn the counterfeit currency and on being unsuccessful, he had torn up the counterfeit currency and left the shop. It is also in evidence that the Police had visited the arrack shop in question at about 8.30 p.m. on the date of the incident. However, there is no recovery of any torn or any other material to be sent for scientific analysis to prove that the appellant/1[st] accused attempted to use counterfeit currency in the shop. The evidence of **CRL.A NO. 373 OF 2006** -7- PW7 who turned hostile to the prosecution is that he did not witness the appellant/1[st] accused trying to use counterfeit currency or burn it or tear it up as alleged by the prosecution on the basis of the testimony of PW6. PW6 was only a salesman in the arrack shop. His suspicion regarding the use of counterfeit currency may not be sufficient to establish that the appellant/1[st] accused had attempted to use fake currency while paying for arrack consumed from the shop. Of course, the fact that the appellant/1[st] accused had tried to burn up the currency notes in question and on being unsuccessful, he had torn up the notes and left the place leads to a suspicion that the allegation of the prosecution that the notes in question where counterfeit is correct. However, the appellant/1[st] accused cannot be convicted on the basis of mere suspicion. Therefore, I am of the view that the learned counsel for the appellant/1[st] accused in right contending that there is little or no evidence to attract a finding that the accused had committed an offence under Section 489(B) of the Indian Penal Code. 7. Then the question is whether the accused had committed the offence punishable under Section 489(C) of the Indian Penal Code. Section 489(C) of the Indian Penal Code requires only possession of counterfeit currency to be proved together with knowledge of the fact that **CRL.A NO. 373 OF 2006** -8- the same is counterfeit. This is a case where the currency was not recovered to the person of the appellant/1[st] accused. It was admittedly recovered from a house stated to be occupied by the appellant/1[st] accused. It is the specific case of PW1 that the seizure was from a house bearing No.V/427 of Maruthomkara Grama Panchayat. The assessment register of that Panchayat shows that as per the assessment register, the building owner is one Sarada. When the seizure of counterfeit currency was admittedly made from the house stated to belong to the appellant/1[st] accused, the prosecution should have taken steps to establish either that the appellant/1[st] accused was the real owner of the house or that he was occupying the house under permission from the actual owner who may or may not have been the aforesaid Sarada. However, the prosecution failed to establish the same. Apart from the oral testimony of PWs1 and 2 that the house belongs to the appellant/1[st] accused, there is nothing on record to establish that the appellant/1[st] accused was either the owner of the house or that he was occupying the house in some manner with permission or otherwise of the actual owner. The fact that the independent witnesses namely, PWs3 and 4 had not supported the prosecution case regarding the seizure from the house of the appellant/1[st] accused is **CRL.A NO. 373 OF 2006** -9- another factor that which entitles the appellant/1[st] accused to the benefit of doubt. Therefore, I am constrained to hold that the prosecution had failed to establish that the appellant/1[st] accused had committed an offence under Section 489(C) of the Indian Penal Code also. In the result, this appeal is allowed. The conviction and sentence imposed on the appellant/1[st] accused in S.C.No.61 of 2000 on the file of the Judicial First Class Magistrate Court, Nadapuram is set aside and the appellant/1[st] accused is acquitted. Sd/- **GOPINATH P. JUDGE** bpr