Sainudheen Koya and Kuruniyan Koya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **CRL.A.No.1463 OF 2005** **[AGAINST THE JUDGMENT DATED 23-08-2005 IN S.C.No.355 OF 2003 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC)NO.II, MANJERI]** ## **APPELLANTS/ACCUSED:** **1 SAINUDHEEN KOYA, S/O.MUHAMMED, PANAGAPURAM HOUSE, OTHUKKUNGAL, MALAPPURAM DIST. 2 KURUNIYAN KOYA S/O. MAMMED KURUNIYAN HOUSE, MATTATHOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/STATE:** **THE STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, MALAPPURAM - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1463 OF 2005 2 ## **JUDGMENT** ## **Dated this the 9th day of November 2020** … The appellants are the accused Nos.1 and 2 in S.C.No.355/2003 on the file of the Additional District and Sessions Judge (Adhoc) No.II, Manjeri. This is a case chargesheeted by the Dy.S.P, CBCID (CFS), Kozhikode in Malappuram Police Station Crime No.139/2000. Originally there were three accused. The offences alleged are under Sections 489B and 489C r/w Section 34 IPC. 2. The prosecution case is that on 30.3.2000 at 4 pm., the first accused was found in possession of forged Indian currency notes denomination of Rs.100/- and on 2.4.2000 at 5 pm., at Vadekemmanna, 2[nd] accused was found in possession of same series of one forged 100 rupees currency note similar to Indian currency notes. It is the prosecution case that the 3[rd] accused supplied the forged Indian currency notes to 1[st] CRL.A.No.1463 OF 2005 3 and 2[nd] accused. Hence it is alleged that the accused committed the offence under Sections 489B and 489C r/w 34 IPC. 3. To substantiate the case, the prosecution examined PW1 to PW9. Exts.P1 to P10 are marked on the side of the prosecution. MO1 to MO6 are the material objects. 4. On going through the evidence and the documents, the trial court found that the 3[rd] accused is not guilty of the offences alleged against him. Accordingly he was acquitted. As far as the 1[st] accused is concerned, the lower court found that he committed the offence under Section 489B and 489C r/w Section 34 IPC. The 2[nd] accused was found guilty under Section 489C IPC. He was acquitted under Section 489B r/w. Section 34 IPC. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the 1[st] and 2[nd] accused. 5. Heard the learned counsel for the CRL.A.No.1463 OF 2005 4 appellants and the learned Public Prosecutor. 6. The counsel for the appellants submitted that even if the entire allegations are accepted, the offences under Sections 489B and 489C IPC are not made out against the appellants. The counsel submitted that, even if it is admitted that these counterfeit notes were seized from the possession of the appellants, there is absolutely no evidence to show that they were in possession of these counterfeit notes with the knowledge that the same is counterfeit notes. The counsel submitted that as far as the 2[nd] accused is concerned, only one counterfeit note is alleged to be seized and that also along with some genuine notes. The counsel submitted that as far as the 2[nd] accused is concerned, there is absolutely no evidence to attract Section 489C IPC. 7. The Public Prosecutor submitted that there is adequate oral and documentary evidence CRL.A.No.1463 OF 2005 5 to prove the offence under Sections 489B and 489C IPC against the 1[st] accused. The Public Prosecutor submitted that as far the 2[nd] accused is concerned there is evidence to show that he committed the offence under Section 489C IPC. 8. The point for consideration in this appeal is (i) whether the 1[st] accused committed the offence under Section 489B and 489C IPC? (ii)whether the 2[nd] accused committed the offence under Section 489C IPC?. 9. Altogether 9 witnesses were examined in this case. PW7 is the detecting officer. PW1 is the Police Constable who accompanied PW7. PW2 and PW3 are the attestors of Ext.P1 mahazar. As per Ext.P1, six notes were seized from the possession of the 1[st] accused. MO1 series is the forged currency notes. PW4 and PW5 are the witnesses to Ext.P2 mahazar. As per Ext.P2, MO2 series of counterfeit notes were seized from the house of the 1[st] accused. PW2 to PW5 turned CRL.A.No.1463 OF 2005 6 hostile to the prosecution. But they admitted the signature in Exts.P1 and P2. PW6 is the DYSP, CB CID(CFS), Kozhikode who conducted investigation after the investigation of PW8. PW8 is the Sub Inspector, who conducted preliminary investigation in this case. This is the evidence available in this case. 10. According to the prosecution, the Sub Inspector of Police, Malappuram, who is examined as PW7 got bonafide information about the possession and use of forged notes by the accused and hence he proceeded to Kottappadi market. When he reached there, the 1[st] accused was seen restrained by some local people and on his body search, six 100 rupees notes were seized. On inspection, the officer found that it was forged notes and the notes were taken into custody as per a seizure mahazar and he was arrested. Crime No.139/2000 was registered against the 1[st] accused under Section 489B and CRL.A.No.1463 OF 2005 7 489C IPC. Subsequently, during the course of investigation, 31 forged 100 rupee notes were seized from the house of the 1[st] accused and that was also seized as per a search list. Thereafter, the investigation was conducted by the Circle Inspector of Police, Malappuram. He arrested the 2[nd] accused on 2.4.2000. After the arrest and search of the 2[nd] accused, one 100 rupee forged note along with three other genuine 10 rupee notes and some coins were seized from the possession of the 2[nd] accused. In the subsequent investigation, it is revealed that the 3[rd] accused supplied these forged notes to 1[st] and 2[nd] accused. The case was transferred to CBCID and after investigation the final report was filed. This is the evidence available in this case. 11. The evidence available in this case against the 1[st] accused is that he was found in possession of six counterfeit currency notes in CRL.A.No.1463 OF 2005 8 his pocket and thereafter another 36 counterfeit notes were seized from his house. These counterfeit notes were sent for expert opinion and as per Ext.P10, it is found that MO1 and MO2 are counterfeit notes. Therefore, it is clear that the 1[st] accused was found in possession of 42 counterfeit currency notes. At the time of body search of the 1[st] accused, only six counterfeit currency notes alone were seized. That itself shows that the 1[st] accused has knowledge about the same because all the notes are counterfeit notes. Moreover, there is evidence to show that about 36 counterfeit notes were seized from the house of the 1[st] accused. There is nothing to disbelieve the case of the prosecution that altogether 42 counterfeit notes were seized from the possession of the 1[st] accused. The counsel for the appellant vehemently argued that the search and seizure is not reliable because the independent witnesses CRL.A.No.1463 OF 2005 9 turned hostile. But it is a fact to be noted that the independent witnesses examined by the prosecution admitted their signature in the mahazar. There is adequate and convincing evidence from PW1 and PW7 to show that the 1[st] accused was found in possession of counterfeit currency notes. There is also evidence to show that the 1[st] accused has got knowledge about the same because huge quantity of counterfeit notes were seized from the possession of the 1[st] accused. In such circumstances, I am convinced that the 1[st] accused committed the offence under Section 489C IPC. As far as Section 489 B IPC is concerned mere possession of counterfeit note is not enough. The Section says that if the accused sells it, 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 CRL.A.No.1463 OF 2005 10 alone is punishable under this section. The counsel submitted that, even if the entire evidence of PW1 and PW7 are accepted in toto, there is absolutely no evidence to convict the first accused under section 489B IPC. I see some force in this argument. Simple possession of the counterfeit notes with the knowledge that the same is counterfeit note is proved as far as the first accused is concerned. But simple possession of counterfeit note with the knowledge of the same is not enough to attract the offence under Section 489B IPC. The point to be decided in this case is whether the first accused was in possession of the counterfeit notes knowing or having reason to believe that the same is forged or counterfeit notes and intended to use the same. The further question is whether the accused committed the offence under Section 489(B) IPC by using the counterfeit currency notes. This Court in CRL.A.No.1463 OF 2005 11 **Muhammed Koya v. State of Kerala** (2020 (3) KLT 441) considered the ingredients of Section 489(C) IPC and Section 489(B) IPC in detail. The relevant paragraph of the above decision is extracted hereunder: _“11. The question to be decided is whether Section 489B is attracted in this case. For easy reference, it will be beneficial to extract Section 489B IPC. Section 489(B). Using as genuine, forged or counterfeit currency-notes or bank-notes: “Whoever 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, 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.” To attract the offence under Section 489(B), mere possession of counterfeit note is not enough. The Section says that, if the accused sells it, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note, or bank-_ CRL.A.No.1463 OF 2005 12 _note, knowing or having reason to believe the same to be forged or counterfeit alone is punishable as per the said Section. Therefore, there must be evidence to show that the accused 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. In this case the prosecution has no case that, the accused sells counterfeit notes 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, except the case that, they were in possession of the counterfeit note. When there is no evidence to show that, the accused sells it 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, no offence under Section 489B IPC is made out. But in such cases, offence under Section 489C may attract. Section 489C says that whoever has in his possession any forged or counterfeit currency-note, or_ CRL.A.No.1463 OF 2005 13 _bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, is punishable. The difference between 489B and 489C is that, as per Section 489B whoever 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, is punishable. On the other hand Section 489C says, whoever has in his possession any forged or counterfeit currency-note, or banknote, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, is punishable. In this case, except the fact that the original accused No.2 (Muhammed Koya) and the original accused No.5 (Prasad) were in possession of counterfeit notes knowing or having reason to believe the same to be counterfeit and knowing to use the same as genuine, there is no case to the prosecution that these accused sells it or buy, 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_ CRL.A.No.1463 OF 2005 14 _believe the same to be forged or counterfeit. Therefore, according to me, in this case original accused No.2 (Muhammed Koya) and original accused No.5 (Prasad) are liable for the offence punishable under Section 489C IPC and not under Section 489B IPC. As far as original accused No.2 is concerned, MO1 counterfeit note is seized from his suitcase. Moreover, based on his statement, the search was conducted at Room No.210 of K.N.S. Lodge, Attingal, from where huge number of counterfeit notes are seized. As far as original 5 th accused is concerned, he is producing 10 bundles of counterfeit notes to the detecting officer. To attract Section 489C, in addition to the possession of counterfeit notes, there should be evidence to show that, possession with knowledge that it is counterfeit note or having reason to believe that the same to be counterfeit note or forged and intending to use the same as genuine or that it may be used as genuine, is necessary. “Reason to believe” is defined in Section 26 of the Indian Penal Code which reads as follows: “A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise”. The prosecution should prove also the “reason to_ CRL.A.No.1463 OF 2005 15 _believe” the things mentioned in Section 489C IPC to convict a person. But this proof need not be necessarily by direct evidence. The various circumstances leading to the seizure of forged notes and the manner in which the accused came into possession of these notes are important circumstances. In this case original accused No.2 gave statement which leads to the recovery of huge quantity of counterfeit notes from Attingal Lodge. From his suitcase MO1 is seized. Moreover, original accused No.5 handed over 10 bundles of counterfeit notes to PW5 and there is no explanation to him for possessing the same. Hence, these are strong circumstance against A2 and A6 to show that they are in possession of the counterfeit notes with knowledge that the same is counterfeit notes intending to use the same as genuine or it may be used as genuine. Hence, an offence under Section 489C is made out against A2 and A6.”_ 12. In this case also, there is absolutely no evidence to show that the first accused committed the offence under Section 489 B IPC. But there is ample evidence to show that, he committed the offence under Section 489C IPC. CRL.A.No.1463 OF 2005 16 Therefore, I am not in a position to accept the prosecution case that the first accused committed the offence under Section 489B IPC. But he is guilty under Section 489C IPC. 13. As far as the second accused is concerned, only one single counterfeit note is seized from his possession as per Ext.P3 seizure mahazar. A perusal of Ext.P3 seizure mahazar will show that along with MO3 counterfeit currency notes, MO4 three genuine notes of Rs.10 and MO5 series two coins were also seized from the possession of the second accused. Except the seizure of this single counterfeit currency note from the second accused along with some other genuine notes, there is absolutely no evidence against the second accused. He was found in possession of one single counterfeit note. There is absolutely no evidence to show that he was having knowledge that he was in possession of CRL.A.No.1463 OF 2005 17 counterfeit notes. There was no evidence adduced by the prosecution to show that on a mere perusal of MO3, it is clear that this is a counterfeit currency note. No such circumstances was put to the second accused to prove the same. This Court in **Anthru @ Abdurahiman v. State of Kerala** [2020(4) KHC 469] has decided this point also. The relevant paragraph of the said judgment is extracted hereunder: “15. The trial court found that the appellant had the knowledge and had reason to believe that MO2 and MO3 are counterfeit currency notes mainly for the reason that PW8, the petty shop owner, was able to identify the same. The learned trial Judge also perused MO2 and MO3 and found that they are counterfeit notes. According to the learned Sessions Judge, if the notes were fake notes on a mere look at them, it could be presumed that the accused had knowledge or reason to believe that they were counterfeit currency notes. 16. The trial court relied the judgment of the Apex Court in M.Mammutti v. State of Karnataka (AIR 1979 SC 1705) and the judgment of this Court in Vijayan v. State of Kerala (2001(2) KLT 951). CRL.A.No.1463 OF 2005 18 17. There is no dispute that if the notes seized were of such a nature that a mere look at them would convince anybody that they were fake notes, it could be presumed that the accused had knowledge or reason to believe that they were counterfeit currency notes. The court relied the evidence of PW8 for this purpose. According to the trial court PW6 is a labourer who studied only upto 4th standard. PW8 is a petty shop owner, and hence, according to the learned Judge he is generally dealing with 100 rupees currency notes, and he will be able to identify the same. Therefore, relying the evidence of PW8, the court presumed that the 1st accused was having knowledge, or he had reason to believe that MO2 and MO3 are counterfeit currency notes. I cannot agree with this finding of the trial court. First of all, if PW8 is believable, then PW5 also has to be believed. PW5 is the Managing Partner of M/s.C.H.Assu and Brothers, which is a firm working in Big Bazar, Kozhikode. He was not able to identify that MO1 is a fake note. He entrusted MO1 and other notes to PW4 his employee. PW4 was not able to identify the same as fake notes. When PW4 produced the fake note before the bank, there was suspicion about the note to PW2 cashier, and he reported the same to PW1. After that, the Manager of the State Bank of India, Palayam Branch found that it is a counterfeit notes by examining the same on ultra violet rays test. If MO1 is of such a nature that a mere look at them would convince anybody that they were fake notes, PW1 and PW2 need not go for an ultraviolet rays test. Moreover, PW5 CRL.A.No.1463 OF 2005 19 is the Managing Partner of a firm working in Big Bazar, Kozhikode. He was not able to identify MO1. The admitted prosecution case is that MO1 to MO3 is of the same nature and with the same serial number. If PW4 and PW5 were not able to identify the same as a fake note by a mere look, it is difficult to accept the findings of the trial court that since PW8 a petty shop owner identified the same as a fake note, it can be presumed that the 1st accused had knowledge that MO2 and MO3 are fake notes. It is an admitted case that only two 100 rupee notes were handed over by the 1st accused to PW6. The prosecution has no case that any other notes are seized from the possession of the 1st accused. There is no evidence that the prosecution conducted any search in the house of the 1st accused and found out any other counterfeit notes from the house of the 1st accused. PW11 and PW12 also deposed that they were not able to found the source of MO2 and MO3. Therefore, simply because a person was found in possession of two 100 rupee notes, which is subsequently found as counterfeit notes, there is no presumption that he is in possession of the same with the knowledge that the same is a counterfeit note. The court has to consider the circumstances available in each case. Each case has to be considered based on the facts in each case. The Apex Court in M.Mammutti's case (supra) observed like this: _The appellant has been convicted in this appeal under Sections 489-B and 489C and has been sentenced to RI for six months respectively and fine of Rs.500._ CRL.A.No.1463 OF 2005 20 _The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupees note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under S.342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs.390. These currency notes have been given to him by the purchaser. He also said that he did not know that the currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature of description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under S.342 Cr.P.C. The High Court has affirmed the judgment of the learned Sessions Judge on the ground that in his statement under S.342 made before the committing court the accused has made a statement_ CRL.A.No.1463 OF 2005 21 _different from that made in the Sessions Court and therefore the appellant has reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the Committing Court in Ext.P13 which appears at p.154 of the paper book, the appellant has struck to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs.390 in two rupee notes. We are not able to find any inconsistency between the answer given by the accused in his statement under S.342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr.Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution_ CRL.A.No.1463 OF 2005 22 _to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him.'' (Emphasis supplied)_ 18. Therefore, it is a settled position that if there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was counterfeit notes, there cannot be any conviction under section 489 B or 489 C of IPC. In this case, also there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit notes. Therefore, based on the Apex Court judgment also, it can be found that there is no knowledge to the appellant that MO2 and MO3 are counterfeit notes when he handed over the same to PW6. Same point was considered by this Court in Gafoor v. State of Kerala (1987(2)KLT 730). In this judgment, this court held that mere possession or use of counterfeit currency notes is not punishable. This court found that the accused must have knowledge or reason to believe that the notes were counterfeit or forged. The same view was taken by this Court in Abdul CRL.A.No.1463 OF 2005 23 Rahiman v. State of Kerala (2014 KHC 773) and in Sukumaran P.O @ Kunhukunhu v. SI of Police, Ambalavayal and another (2016(4) KHC 660). In the light of the above authoritative judgments of the Apex Court and this Court, it is clear that the mere possession of a counterfeit note without the knowledge or reason to believe that the currency note or bank note was forged or counterfeit and intending to use the same as genuine, there cannot be a conviction under Section 489B or 489C of Cr.P.C. 19. Moreover, as per Section 313 of Cr.P.C, in every inquiry or trial, any circumstances appearing in the evidence against an accused should be put to him for enabling him to explain the same. In this case, the trial court relied upon the evidence of PW8 and found that he is a petty shop owner, and he will be able to identify MO2 and MO3 as counterfeit notes. The court also perused MO2 and MO3 and found that it is possible to distinguish the same from the real currency notes and that it did not require any expert opinion. According to the trial court, since the 1st accused is doing business in aracanut gardens on lease and for that purpose employed PW6, it can be presumed that there is reason to believe that the 1st accused is a person who used to deal with 100 rupee currency notes generally. In such a situation, according to the trial court, the reasonable inference is that the first accused knew or at least have reason to believe that MO2 and MO3 are counterfeit currency notes. Whether such an inference can be the basis of CRL.A.No.1463 OF 2005 24 conviction without putting the same to the accused under Section 313 CrP.C is the question. The Apex Court in M.Mammutti's case (supra) clearly stated that, if any question regarding these circumstances is not put to the accused under Section 342 Cr.P.C (the present Section 313 Cr.P.C) that is fatal to the prosecution. Similarly, in Umashanker v. State of Chhattisgarh (AIR 2001 SC 3074), the Apex Court observed that if any specific question about the currency note being fake or counterfeit was not put to accused in examination under Section 313 Cr.P.C, that is fatal to the prosecution. This court considered the importance of examining the accused under Section 313 Cr.P.C and the importance of the relevant questions to be put to the accused in Crl.A No.856/2005. The relevant portion of the judgment is extracted hereunder: “28. In addition to this, another important aspect is that the compliance of Section 42(2) of the NDPS Act is not put to the accused under Section 313 Cr.P.C. I perused the Section 313 Cr.P.C. statement of the accused. If the incriminating materials are not brought to the notice of the accused while examining them under Section 313 Cr.P.C., the court cannot use that part of the evidence to convict an accused. The Apex Court in Inspector of Customs, Akhnoor, Jammu and Kashmir v. Yashpal and another (2009) 4 SCC 769 considered this point. Paragraph 13,16 and 17 of the above said judgment is extracted CRL.A.No.1463 OF 2005 25 herein below: “13. It is to be noted that the High Court did not accept the stand relating to noncompliance with Section 41(2) of the Act. It only interfered on the ground that the relevant incriminating materials were not put to the accused when they were being examined. It is to be noted that in the instant case there was no reference to any of the incriminating materials. If the foundation of the prosecution case was the alleged confession before the Customs Authorities, that material was not brought to the notice of the accused persons. 17. Above being the position, there is no infirmity in the impugned judgment to warrant interference. The appeal is dismissed.” 29. When the compliance of Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 313 Cr.P.C., the same cannot be relied by the court to convict an accused.” 20. In the light of the above judgments, it is clear that all the circumstances against the accused should be put to the accused under Section 313 Cr.P.C enabling the accused to explain such circumstances. I have perused the 313 statement of the accused in this case. No CRL.A.No.1463 OF 2005 26 question regarding the knowledge of the accused about the counterfeit notes, when the same was in his possession, was put to the accused under Section 313 Cr.P.C. On that ground also, the accused is entitled to the benefit of doubt.” In the light of the above decision, I think, the second accused is entitled the benefit of doubt. There is absolutely no evidence to show that, the second accused was found in possession of MO3 with the knowledge that the same is counterfeit note. 14. Therefore, the conviction of the first accused under Section 489 C IPC is confirmed and the first accused is not guilty under Section 489B IPC. The second accused is not guilty under Section 489C IPC. 15. Then the next question is what would be the sentence to be imposed on the first accused. The seizure of the counterfeit notes was in 2000. Now 20 years over. No criminal antecedent is reported either before or after the incident in this case. A perusal of page CRL.A.No.1463 OF 2005 27 23 of the impugned judgment, it is seen that the first accused underwent pre-trial detention from 30.3.2000 to 23.6.2000. Therefore, the first accused can be sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs.10,000/-. In default of payment of fine, the first accused can be directed to undergo simple imprisonment for six months. It is not mandatory to impose even imprisonment in Section 489C IPC. This point is considered by this Court in **Mohammed Koya v. State of Kerala** (2020(3) KLT 441), which is extracted hereunder: _“14. Now regarding the sentence to be imposed on the 1[st] 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_ CRL.A.No.1463 OF 2005 28 _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 489C IPC. In the last paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koaya 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 1[st] 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.”_ 16. Hence this Criminal Appeal is allowed in part in the following manner: i) The conviction and sentence imposed on the first appellant under Section 489B IPC are set aside; ii) The conviction and sentence imposed on the first appellant under CRL.A.No.1463 OF 2005 29 Section 489C IPC is confirmed. But the sentence imposed by the lower court is set aside; iii)The first appellant/first accused is sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs.10,000/- (Rupees Ten thousand only). In default of payment of fine, the first accused is directed to undergo simple imprisonment for six months; iv) Set off is allowed for the period from 30.3.2000 to 23.6.2000. v) The conviction and sentence imposed on the second appellant/second accused under Section 489C IPC is set aside. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **ab/pkk** ## **JUDGE**