Salim v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936 CRL.A.No. 864 of 2005 ( ) -------------------------SC 402/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM APPELLANT(S)/ACCUSED:: ------------------------------ SALIM, S/O. ABOOBAKAR, PULIKKAL, PARAMBIL HOUSE, C.C.XVI/84 INDIRA JUNCTION, KARUVELIPADI KARA, THOPPUMPADY. BY ADVS.SRI.SHAIJAN C.GEORGE SRI.JOHN VARGHESE RESPONDENT(S)/COMPLAINANT:: -------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. By PUBLIC PROSECUTOR SMT.JASMINE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-032014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## A.HARIPRASAD,J. ---------------------------------CRL.A.No.864 of 2005 ----------------------------------Dated this the 25[th] March, 2014 ## **JUDGMENT** Appellant along with another person was tried by the VIth Additional Sessions Judge, Ernakulam for the offences under Sections 489 B and 489 C read with section 34 I.P.C. Pending trial the second accused died. After trial the learned Sessions Judge found the appellant guilty of the offence under Section 489 C I.P.C. Considering the facts and circumstances, the trial Court clamped rigorous imprisonment for three years on the appellant. Aggrieved by the conviction and sentence the appellant/1[st] accused has come up in appeal. 2. The prosecution case in short is that on 25/5/1999 at 8.30 p.m. PW7 got reliable information that two persons were trying to transact in fake notes of Rupees 100 denomination. PW7 and party proceeded to the market and found the accused persons there. On seeing the police party, CRA.864/05 2 the accused tried to escape. PW7 could apprehend the appellant. Second accused ran away and later he was arrested. Pending trial of the case, he died and the charge against him was abated. 3. During the trial, prosecution examined eight witnesses and marked eight documents.MO.1 series are the fake currency notes allegedly recovered from the possession of the appellant. 4. Heard learned counsel for the appellant and learned Public Prosecutor. I carefully perused the records. 5. The trial court framed charge against the appellant both under Sections 489 B and 489 C I.P.C. As mentioned earlier, after trial the appellant was convicted under Section 489 C I.P.C. The penal provision reads as follows: “489 C-Possession of forged or counterfeit currency-notes or bank notes.Whoever has in his possession any forged or counterfeit currency-note or bank-note, CRA.864/05 3 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, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. On analysis of the Section, it can be seen that possession of forged and counterfeit currency notes or bank notes is made punishable as per the above provision. Possession and knowledge that the currency notes were counterfeit notes are the necessary ingredients to constitute the offence. Learned counsel for the appellant submitted that the prosecution failed to prove the possession of fake currency notes and the fact that he intentionally possessed the same. Reliance is placed on M.Mammutti v. State of Karnataka (1979 CRL.L.J.1383) to contend that a presumption that the accused knew that notes in possession were counterfeit cannot be drawn. Calcutta High Court in Madan Lal Sarma v. The State (1990 CRL.L.J.215) CRA.864/05 4 held that mere possession of forged note does not shift the burden to the accused to prove his innocence. The prosecution has to prove either his knowledge or reason to believe that the note was forged was known to the accused. 6. Let us go through the evidence in this case. PW1 is a fish vendor who was doing business in the market at Thoppumpady. PW1 turned hostile to the prosecution. However, he admitted his signature on Ext.P1 mahazar. PW2 is yet another fish vendor who refused to support the prosecution case. PW3 is another fish vendor. He also put signature on Ext.P1 and that fact is admitted by him. He would further say that on feeling suspicion about the genuineness he entrusted one currency note to PW7 on the date of detection. PW4 deposed that during 1999 he saw police officers going to the house of the appellant for effecting a search. PW4 was aware of the fact that the accused was involved in a case relating to transfer of fake currency. CRA.864/05 5 7. Learned Prosecutor heavily relies on the testimony of PW5 and PW7. PW5 was the Head Constable who was in the party of PW7 at the time of detection. PW5 and PW7 deposed that when they reached the market at Thoppumpady, the appellant and other accused tried to escape. PW7 chased and caught the appellant and other accused. On examination of the person of the appellant PW7 could recover six currency notes of Rupees 100 denomination. The currency notes and the appellant were identified by the witnesses at the time of evidence. In spite of cross examination the credibility of this witnesses could not be shattered. PW7 also testified regarding the details of detection of currency notes. He would depose that on 25/5/1999 at about 8.30 p.m. he received information that two persons were dealing with counterfeit currency notes in the market at Thoppumpady. He along with PW5 and other officers went to the place in police jeep. On seeing the police officers , the appellant and other accused tried to escape. However, the CRA.864/05 6 appellant was restrained. PW7 recovered six fake currency notes from the pocket of the accused. He arrested the accused and later registered the crime. In spite of cross examination his version remains credible. PW6 and PW8 are the investigating officers. There is no flaw in the investigation. 8. Learned Prosecutor places reliance on Ext.P7 report submitted by the authorized officer, Government of India Bank Note Press, Dewas, Madhapradesh. It is seen that the notes recovered from the possession of the appellant were sent to the expert in a sealed cover. Ext.P7 would show that the cover was properly secured. After examination, it was found that notes sent for analysis were found to be not genuine. Ext.D7 was admitted in evidence without any demur. This report is admissible in evidence without examining the maker under Section 292 of Cr.P.C. 9. Ext.P1 mahazar was properly proved by PW7 and PW5. Ext.P1 is a document which came into existence CRA.864/05 7 contemporaneous to the detection of the offence. Ext.P5 is first information report registered by PW7 immediately after the incident. Ext.P6 is the requisition sent by the Magistrate having jurisdiction to the General Manager, Bank note press, Dewas, Madhyapradesh. As per the requisition Ext.P7 report was submitted. 10. Learned counsel for the appellant submitted that the evidence adduced by the prosecution do not show that the accused was aware of the fact that the six notes recovered from him were fake currency notes. This contention cannot be accepted for the following reasons. Fact that six currency notes were recovered from the possession of the accused by PW7 in the presence of PW5 and other witnesses is well established. The trial court rightly found that proof of intention is a difficult exercise. Intention being a state of mind, it cannot be established by direct evidence. Attending circumstances revealed through the evidence will indicate the intention of the accused in any CRA.864/05 8 crime. PW5 and PW7 emphatically deposed that on seeing the police jeep the accused took their heels. Further testimony of PW3 also lent support to the prosecution case. The defence case that the appellant was falsely implicated in crime on account of enmity nurtured by PW7 to one Mony, whose brother was the friend of the appellant is not established by any reliable evidence. Considering the facts and circumstances of the case, I find that the court below is legally correct in convicting the appellant for the offence under Section 489 C I.P.C. I find no reason to interfere with those findings. 11. Learned counsel for the appellant submitted that he was sentenced to undergo rigorous imprisonment for three years, which is harsh considering the circumstances of the appellant. Hence I feel that sentence can be modified in the following manner. 12. In the result, appeal is partly allowed. Conviction of the appellant under Section 489 C I.P.C is confirmed and the CRA.864/05 9 appellant shall undergo rigorous imprisonment for a period of two years. With these modifications appeal is dismissed. A.HARIPRASAD, Judge. uj.