Sarfras Navas Cherumalapuravan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **CRL.A.No.979 OF 2005** **AGAINST THE JUDGMENT IN SC NO.387/2003 DATED 07-06-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) NO.II, MANJERI** ## **APPELLANT/ACCUSED:** **SARFRAS NAVAS CHERUMALAPURAVAN HOUSE, KALIKAVU AMSOM, CHAZHIYODE RESIDENCE.** **BY ADVS. SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.GEORGIE JOHNY SMT.ANITA ANN GEORGE** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERLA (CRIME NO.238/2001 OF KALIKAVU POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.K.B.UDAYAKUMAR, SR.GP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.979 OF 2005 2** ## **JUDGMENT** ## **Dated this the 28th day of September 2020** ... The appellant is the accused in Sessions Case No.387 of 2003 on the file of the Additional District and Sessions Court (Adhoc) No.II, Manjeri. 2. The above case is charge sheeted by the Deputy Superintendent of Police, CID (CFS), Kozhikode,Kalikavu Police Station alleging offences punishable under Sections 489 B and C of the Indian Penal Code (IPC). 3. The prosecution case is that, on 29.12.2001 at about 5.50 p.m., the accused was found to be in possession of 93 forged 100 rupees currency notes at Anchachavady knowing the same to be forged and intending to use them as genuine and thereby committed the ## **CRL.APPEAL NO.979 OF 2005 3** offence under Section 489 B and C IPC. 4. To substantiate the case, the prosecution examined PW1 to PW8. Exhibits P1 to P8 are the documents marked on the side of the prosecution. MO1 and MOII are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused is not guilty under Section 489 B IPC. The accused is convicted under Section 489 C IPC. The accused is sentenced to undergo rigorous imprisonment for 3½ years under Section 489 C IPC. Aggrieved by the conviction and sentence, this criminal appeal is filed. 6. Heard the learned counsel for the appellant and the learned public prosecutor. 7. The learned counsel for the appellant submitted that, there is no independent corroboration to the official witnesses in **CRL.APPEAL NO.979 OF 2005 4** this case. The learned counsel submitted that, the trial court convicted the appellant only based on the evidence of PW1 and PW2. The counsel submitted that, PW3, PW4 and PW5 turned hostile to the prosecution. The learned counsel submitted that, the evidence of PW1 and PW2 is unreliable. The counsel also submitted that, there is delay in producing the counterfeit notes before the jurisdictional court. The counsel submitted that, the petitioner is entitled benefit of doubt in this case. 8. The learned public prosecutor submitted that, the evidence of PW1 and PW2 is reliable in this case. The public prosecutor submitted that, their evidence is supported by documentary evidence. The public prosecutor submitted that, as per Ext.P8 certificate of expert opinion, it is found that, the notes **CRL.APPEAL NO.979 OF 2005 5** seized from the accused are counterfeit notes. Therefore, the public prosecutor submitted that, the trial court is perfectly justified in convicting the accused under Section 489 C IPC. 9. The point for consideration in this case is, whether the accused committed the offence under Section 489 C IPC ? 10. PW1 and PW2 are Head constables attached to Kalikavu police station. According to the prosecution on 29.12.2001, the Head constable in charge of Kalikavu police station, received a bona fide information and he rushed to the spot at Anchachavady and found that, the accused was detained there by the people and some currency notes were found kept in his hand. The officer seized 93 forged 100 rupee currency notes and the same was seized as per Ext.P1 seizure mahazar. The same **CRL.APPEAL NO.979 OF 2005 6** was produced before the court and the same was forwarded for expert opinion. As per Ext.P8 report, it is found that, the notes seized from the accused are forged currency notes. To substantiate the same, the prosecution is relying the evidence of PW1 and PW2. PW1 is the detecting officer, PW2 is the constable who accompanied PW1. It is true that, PW3, PW4 and PW5 were turned hostile. They are the alleged independent witnesses. It is a settled position that, simply because independent witnesses turned hostile to prosecution, the evidence of official witnesses cannot be ignored. In this case, there is nothing to disbelieve the evidence of PW1 and PW2. Their evidence is corroborating to each other. Their evidence is supported by Ext.P1 seizure mahazar. The counterfeit notes were forwarded as per Ext.P6 forwarding note. As per Ext.P8 **CRL.APPEAL NO.979 OF 2005 7** certificate, it is found that, the counterfeit notes are forged notes. In such circumstances, the prosecution is able to prove that, the seized counterfeit notes from the possession of the accused are counterfeit notes in the light of Ext.P8 expert opinion. I see no reason to reject the evidence of PW1 and PW2 coupled with Exts.P1 and P8. In such circumstances, the finding of the trial court in that regard is confirmed. 11. The trial court convicted and sentenced the accused under Section 489-C IPC. Section 489-C IPC says about the possession of forged counterfeit currency notes or bank notes. Section 489-B says about the usage of the forged counterfeit currency notes or bank notes as genuine. Section 489-C is a bailable offence. Section 489-B is a non bailable offence. As far as Section 489-B is concerned, ## **CRL.APPEAL NO.979 OF 2005 8** the imprisonment is mandatory. As far as Section 489-C is concerned, the imprisonment is not mandatory. The seizure of the counterfeit notes in this case was on 29.12.2001. No other case is reported against the appellant by the prosecution in this case. Now, 19 years have elapsed after the incident. This Court in **Muhammed Koya v. State of Kerala** [2020(3) KLT 441] considered this point and reduced the imprisonment to a fine. The relevant portion of the above case is extracted hereunder: _**“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**_ **CRL.APPEAL NO.979 OF 2005 9** _**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 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 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.**_ In this case also, the appellant was in custody at the crime stage from 29.12.2001 to 19.2.2002 as evident from the last page of the impugned judgment. In the light of the above fact that, the appellant underwent imprisonment from 29.12.2001 to 19.02.2002, I ## **CRL.APPEAL NO.979 OF 2005 10** think, a sentence of fine is enough in this case especially when Section 489-C says that, the imprisonment is not mandatory. But it is an offence against economy. It cannot be considered lightly. Therefore, I am reducing the sentence of imprisonment to a fine of Rs.50,000/-. If the fine amount is not paid, accused will undergo simple imprisonment for one year. Accordingly, this criminal appeal is allowed in part, as follows: (i) The conviction of the appellant under Section 489-C is confirmed; (ii) The sentence imposed on the appellant/accused is set aside; **==> picture [410 x 159] intentionally omitted <==** **CRL.APPEAL NO.979 OF 2005 11** imprisonment for one year; **==> picture [410 x 42] intentionally omitted <==** **==> picture [410 x 93] intentionally omitted <==** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**