Sathyan s/o Danam Nadr v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **CRL.A.No.427 OF 2005(A)** **AGAINST THE ORDER/JUDGMENT IN SC 01/2003 DATED 17-02-2005 OF ADDITIONAL SESSIONS COURT (FAST TRACK-1), TRIVANDRUM** ## **APPELLANT/ACCUSED:** **SATHYAN S/O DANAM NADR, NAYKKARUMMOOLA MELE VEEDU,, VETTINADU, VETTINADU MURI, VEMBAYAM VILLAGE.** **BY ADVS. SRI.K.SATHEESH KUMAR SMT.RESHMI POULOSE SRI.T.A.UNNIKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR R1 BY GOVERNMENT PLEADER** **OTHER PRESENT:** **SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.427 OF 2005(A)** **2** ## **JUDGMENT** ## **Dated this the 12th day of October 2020** Appellant is the accused in S.C. No. 1/2003 on the file of the Additional Sessions Judge, Fast Track Court- I, Thiruvananthapuram. The above case is chargesheeted by the Dy.S.P., CBCID (CSF), Thiruvananthapuram alleging offences punishable under Section 489 B and C of the IPC. 2. The prosecution case is that on 14.04.97 at 1'o' Clock in the night, the accused trafficked one counterfeit currency note of the denomination Rs.100/- by exchanging the same to PW3 while he was playing some game in connection with the festival of Mahavishnu Temple, Chirakonam near his house and used the said counterfeit currency note as genuine currency note knowing or having reason to believe that the same is counterfeit currency note and that on the same day at 1.30 a.m., in the night he was found possessed M.O.1 series 5 counterfeit currency notes of the denomination of Rs.100/- at the premises of the said temple knowing or having reason to believe that M.O.1 series **CRL.A.No.427 OF 2005(A)** **3** are counterfeit currency notes with intention to use the same as genuine currency notes. Hence it is alleged that the accused committed the offences. 3. To substantiate the case, the prosecution examined PW1 to PW11. Exts. P1 to P12 are marked on the side of the prosecution. Two witnesses were examined on the side of the defence as DW1 and DW2. M.O.1 and M.O.2 are the material objects. 4. After going through the evidence and documents, the trial court found that the accused is not guilty under Section 489 B IPC. But he is found guilty under Section 489 C IPC. He is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 5. Heard the counsel for the appellant and the learned Pubic Prosecutor. 6. The counsel for the appellant submitted that even if the entire allegations are accepted, the offence under Section 489 C IPC is not made out. The counsel submitted that a **CRL.A.No.427 OF 2005(A)** **4** perusal of the evidence produced by the prosecution will not show that the appellant possessed the counterfeit notes with the knowledge that the same is counterfeit notes. The counsel also submitted that there is delay in producing the counterfeit notes before the court. The counsel also submitted that there is delay in conducting the investigation also. 7. The Public Prosecutor submitted that there is clear evidence adduced by the prosecution to establish the offence under Section 489-C IPC. The Public Prosecutor submitted that when the police reached the place, the accused was seen detained. The Public Prosecutor also submitted that only counterfeit notes were seized from the pocket of the accused. These two factors will prove that the accused was having knowledge about the counterfeit notes. The Pubic Prosecutor submitted that this Court may not interfere with the well considered judgment of the lower court. 8. The point for consideration in this case is whether the appellant committed the offence under Section 489-C IPC. 9. To prove the offence under Section 489-C IPC, the prosecution has to prove that the accused was in possession **CRL.A.No.427 OF 2005(A)** **5** of the counterfeit currency notes 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. 10. The prosecution altogether examined 11 witnesses in this case. PW1 to PW6 are the independent witnesses. All of them turned hostile to the prosecution. PW9 is the detecting officer in this case. PW8 accompanied PW9. The only evidence available in this case is that of PW8 and PW9. PW9 is the Assistant Sub Inspector of Police who is the detecting officer. According to PW9 on 14.4.1997 at 1.30 A.M. he got information that the accused who had attempted to exchange counterfeit currency notes, have been detained at festival committee office of Mahavishnu Temple, Chirakonam and thereupon he along with PW8 reached there and then he saw the accused being detained there at the festival committee office of the temple. Therefore, he questioned him and conducted the body search and then he saw five counterfeit currency notes of the denomination of 100 in the left side pocket of his shirt and therefore, he seized the same under Ext.P1 seizure mahassar and arrested the accused. PW8 is the Headconstable who accompanied PW9. He **CRL.A.No.427 OF 2005(A)** **6** supported the evidence of PW9. This is the evidence available in this case. 11. As I stated earlier, to attract the offence under Section 489- C, the prosecution has to prove that the accused was in possession with the knowledge that the notes are counterfeit notes. In this case, the prosecution is relying the following circumstances to prove that the accused was having knowledge about the counterfeit notes. (i). The accused was seen detained by the people when PW8 and PW9 reached the spot. (ii). Five counterfeit currency notes with denomination of 100 was seized from the shirt pocket of the accused. No genuine note is seen along with these five currency notes. (iii). A bare look of the currency notes, it is clear that the currency notes are counterfeit currency notes. These are the reasons for the conclusion that the accused was having knowledge about the counterfeit currency notes. 12. I cannot agree with this. Simply because the person is detained by public and five currency notes are seen in his pocket, there is no presumption that he is in possession of **CRL.A.No.427 OF 2005(A)** **7** counterfeit notes with the knowledge that the same is counterfeit notes. It is also to be noted that simply because five counterfeit currency notes is seized from the accused, there is no presumption that the accused is in possession of counterfeit notes with the knowledge that those are fake notes. I consider this point in detail in **Anthru @ Abdurahiman vs. State of Kerala (2020 (4) KHC 469** ). The relevant portions are extracted hereunder. _“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. 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 SubInspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant_ **CRL.A.No.427 OF 2005(A)** **8** _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 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_ **CRL.A.No.427 OF 2005(A)** **9** _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 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 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_ **CRL.A.No.427 OF 2005(A)** **10** _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 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_ **CRL.A.No.427 OF 2005(A)** **11** _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 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._ _16. 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.”_ **CRL.A.No.427 OF 2005(A)** **12** _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.”_ In the light of the above judgment it is clear that the appellant in this case cannot be convicted under Section 489 C IPC. There is no circumstance which will prove that the accused was found in possession of counterfeit notes with the knowledge that the same is counterfeit notes. The third circumstances mentioned in paragraph 11 of this judgment which relied by the prosecution is not even put to the accused under Section 313 Cr.P.C. It is true that the evidence of PW8 and PW9 cannot be disbelieved. They are official witnesses. Simply because the independent witnesses turned hostile to the prosecution, their evidence cannot be rejected. But, the only evidence adduced by PW8 and PW9 is that the accused was seen detained by the public and five counterfeit currency notes are seized from the shirt pocket of the accused. These two will not establish that the accused was having knowledge about the counterfeit notes. The only five counterfeit currency notes are seized from the appellant. If the number of **CRL.A.No.427 OF 2005(A)** **13** counterfeit notes seized from the appellant is huge, that can be one of the reasons to presume that the appellant was having knowledge about the counterfeit notes. But here is a case where only five notes were seized from the pocket of the accused. Simply because there is no other genuine note is seized from the accused, that is not a reason to presume that the accused is guilty under Section 489 C IPC. 13. When this appeal came up for consideration, I directed the investigating officer in this case to find out whether the appellant is involved in any other counterfeit currency note case. The Deputy Superintendent of Police-II Crime Branch, Thiruvananthapuram submitted the report on 9.10.2020 informing that the appellant is not involved in any other counterfeit currency note case. Only two IPC offences are committed by the accused and one of the case is already referred and the other is a case registered under Section 118 (a) of the Kerala Police Act. 14. As I observed in the earlier paragraphs, there is no evidence to show that the accused was found in possession of the counterfeit notes with the knowledge that the same is counterfeit currency notes. I think the appellant in this case **CRL.A.No.427 OF 2005(A)** **14** is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 17.2.2005 in S.C. No.1/2003 on the file of the Additional Sessions Court, Fast Track-I, Thiruvananthapuram is set aside. The accused is set at liberty and the bail bond if any, executed by him is cancelled. **Sd/P.V.KUNHIKRISHNAN JUDGE** al/-+