Sebastian s/o John v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **CRL.A.No.967 OF 2005** **AGAINST THE JUDGMENT IN SC NO.209/2003 DATED 26.5.2005 ON THE FILE OF THE ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I) THIRUVANANTHAPURAM.** ## **APPELLANT/ACCUSED:** **SEBASTIAN S/O.JOHN, KULANGARA KONAM, JOHN VILLA, PALLICHAL DESOM, PALLICHAL VILLAGE.** ## **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.61/CR/2001 CBCID(CFS), THIRUVANANTHAPURAM.** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.967 OF 2005 2 ## **JUDGMENT** ## **Dated this the 7th day of October 2020** ... The appellant is the 1[st] accused in Sessions Case No.209/2003 on the file of the Additional Sessions Court (Fast Track Court-I) Thiruvananthapuram. The above case is charge sheeted by the Deputy Superintendent of Police, CBCID(CFS) Thiruvananthapuram against the appellant and three others alleging offences punishable under Sections 120B, 489B and 489C read with 34 of the Indian Penal Code (IPC). 2. The prosecution case is that, on 27.10.2000, the 4[th] accused obtained 100 counterfeit currency notes of the denomination of Rs.10/- from a person. He possessed the same knowing or having reason to believe that, they are counterfeit currency notes. Out of that 100 counterfeit currency notes, he exchanged 20 CRL.APPEAL NO.967 OF 2005 3 counterfeit currency notes by using the same as genuine currency notes in the places of Malayinkeezu for the period from 15.10.2000 to 27.10.2000 for purchase of articles. The further case is that, the 4th accused secretly sold the balance 80 counterfeit currency notes to 3[rd] accused after getting Rs.500/- from him at Malayinkeezu junction on 16.10.2000. The prosecution further alleges that, the 3[rd] accused possessed that counterfeit currency notes knowing or having reason to believe that they are counterfeit currency notes till 20.10.2000 and on 20.10.2000 he sold 20 counterfeit currency notes of denomination of Rs.10/- to 2[nd] accused at a place called Machel after receiving Rs.100/- from him. The 2[nd] accused possessed the aforesaid counterfeit notes for the period from 20.10.2000 to 25.10.2000 knowing or having reason to believe that, they are counterfeit currency notes and CRL.APPEAL NO.967 OF 2005 4 that the 2[nd] accused sold 20 counterfeit currency notes to the 1[st] accused at a place called Machel after receiving Rs.100/- from him as the price of the 20 counterfeit currency notes. It is alleged that on 25.10.2000. The 1[st] accused possessed the currency notes knowing or having reason to believe that, they are counterfeit currency notes and that the 1[st] accused exchanged 12 counterfeit currency notes from out of the 20 counterfeit currency notes at a place of Balaramapuram as the price of the goods purchased by him for the period from 25.10.2000 to 27.10.2000. According to the prosecution 1[st] accused on 27.10.2000 at 1.30 p.m. reached in the provision shop conducted by PW1 and attempted to exchange 8 currency notes of the denomination of Rs.10/- to PW1 as the price of the goods purchased by him from the shop of PW1. Therefore, it is alleged that accused Nos.1 to 4 entered into a criminal CRL.APPEAL NO.967 OF 2005 5 conspiracy for exchanging and trafficking counterfeit currency notes in furtherance of their common intention and thereby committed the offence alleged against him. PW13 is the Sub Inspector of Police, Balaramapuram Police Station. While he was sitting in the Police Station on 27.10.2000 at 1.20 p.m. he got an information that the 1[st] accused after purchasing goods from the provision shop of PW1 in front of Balaramapuram market attempted to exchange counterfeit currency notes and thereby he was detained in front of that shop. Then he along with the police party including PW9, the Head Constable of Balaramapuram Police Station reached in the provision shop of PW1 and then he could see that the 1[st] accused being detained there. When the 1[st] accused was questioned, he stuffed the counterfeit currency notes possessed by him into his mouth. But immediately, the officer pressed his neck and CRL.APPEAL NO.967 OF 2005 6 took out the counterfeit currency notes from his moth and then he examined the notes and then he could understand that they are counterfeit currency notes. Hence, it is alleged that the 1[st] accused was found in possession of eight counterfeit currency notes of the denomination of Rs.10. 3. To substantiate the case, the prosecution examined PW1 to PW15. MO1 is the material object. Exhibits P1 to P16 are the documents marked on the side of the prosecution. 4. The 3[rd] accused is reported as dead and his case was abated. 5. After going through the evidence and documents, the trial court found that, accused 2 and 4 are not guilty and they were acquitted. The 1[st] accused was not found guilty under Sections 120B and 489B IPC. But the 1[st] accused was convicted under Section 489C IPC. The 1[st] CRL.APPEAL NO.967 OF 2005 7 accused is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. In default of payment of fine, he is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence imposed on the 1[st] accused, this appeal is filed. 6. The counsel for the appellant/1st accused submitted that, even if the entire allegations are accepted, no offence under Section 489C IPC is attracted in this case. The counsel submitted that, PW1 to PW8 in this case turned hostile. The counsel submitted that, the only evidence is that of PW9 and PW13. According to the counsel, their evidence is not reliable. The counsel submitted that there is an identity dispute also. The counsel submitted that, there is delay in producing the counterfeit notes before the court. The counsel submitted that, the arrest memo is not CRL.APPEAL NO.967 OF 2005 8 produced. The counsel submitted that, the arrest intimation was also not issued. The counsel submitted that, the forwarding note in this case is not marked. The counsel submitted that, the accused is entitled the benefit of doubt. As a last argument, the counsel submitted that, if this Court finds that, the appellant/1st accused is guilty under Section 489C IPC, the appellant/1st accused may not be sent to jail at this distance of time. 7. The learned Public Prosecutor submitted that there is adequate evidence to prove the offence under Section 489C IPC against the 1[st] accused who is the appellant herein. The public prosecutor submitted that, this court may not interfere with the conviction and sentence imposed by the trial court. 8. The point for consideration in this appeal is whether the appellant/1st accused committed the offence under Section 489C IPC. CRL.APPEAL NO.967 OF 2005 9 9. It is true that, all the independent witnesses turned hostile to the prosecution. PWs.1 to 8 are the hostile witnesses. PW9 is the Head Constable who accompanied PW13, the Detecting Officer. PW10 is the Branch Manager of the S.B.T., Balaramapuram branch. One Thankaraj, who is the Assistant Sub Inspector of Police went to the bank to verify whether the seized articles are counterfeit notes or not. PW11 is the Secretary to the Local Grama Panchayt. He is examined to prove the death of the 3[rd] accused. PW12 is the Police Constable who produced the counterfeit notes for expert opinion. PW14 is one of the Investigating Officer who conducted the preliminary investigation and submitted a report to add Section 34 IPC. PW15 is the Investigating Officer. There is only the evidence of PW13 and PW9 to prove the seizure of MO1 from the possession of the appellant/1st accused. CRL.APPEAL NO.967 OF 2005 10 10. It is now settled position that, simply because there no independent corroboration to the evidence of official witnesses, the evidence of official witnesses cannot be rejected. One aspect to be noted in this case is that, according to PW9 and PW13, the 1[st] accused tried to swallow this counterfeit notes when he saw the police. That itself shows about the knowledge of the accused about the counterfeit notes. It is not a simple possession of counterfeit notes, which is proved. The manner in which the accused behaved at the time when he saw the police is also important. I see no reason to reject the evidence of PW13 and PW9 to come to the conclusion that the counterfeit notes were seized from the accused. The behaviour of the accused at the time of seizure established the fact that, he has knowledge about the counterfeit notes. It is true that, certain CRL.APPEAL NO.967 OF 2005 11 irregularities are pointed out by the counsel for the appellant which happened during the investigation stage of this case. But there is evidence of the official witnesses which is reliable and trustworthy. According to me, those minor irregularities can be ignored. Therefore, it is a clear case in which the prosecution is able to prove that MO1 counterfeit notes were seized from the possession of the 1[st] accused. It is also proved that, as per Exhibit P15 report of the expert, MO1 notes are counterfeit notes. Therefore, in the light of the evidence of PW9 and PW13 coupled with Exhibit P15, the prosecution is able to establish that the accused committed the offence under Section 489C IPC. I see no reason to interfere with the conviction imposed under Section 489C IPC against the appellant/1st accused. 11. Then the next question is about CRL.APPEAL NO.967 OF 2005 12 sentence. The trial court imposed rigorous imprisonment for three years and to pay a fine of Rs.5,000/- under Section 489C IPC. The alleged seizure of the counterfeit notes in this case was on 27.10.2000. About 20 years elapsed after the alleged seizure. Only eight counterfeit notes of the denomination of Rs.10 is seized from the appellant/1st accused. During the crime stage, the appellant/1st accused was in custody from 28.10.2000 to 30.11.2000. This Court in **Muhammed Koya v.** **State of Kerala** [2020(3) KLT 441] considered this point like this: _**“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**_ CRL.APPEAL NO.967 OF 2005 13 _**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 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**_ CRL.APPEAL NO.967 OF 2005 14 _**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.**_ 12. I think, the same benefit can be enlarged to the appellant/1st accused also. Considering the entire facts and circumstances of this case, I think, the appellant can be sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs.25,000/-. In default of payment of fine, the appellant can be directed to undergo simple imprisonment for six months. Hence this Crl.Appeal is allowed in part in the following manner: **==> picture [349 x 13] intentionally omitted <==** appellant/1st accused under Section 489C IPC is confirmed; **==> picture [349 x 13] intentionally omitted <==** appellant/1st accused under Section 489C CRL.APPEAL NO.967 OF 2005 15 is set aside; (iii) The appellant/1st accused is directed to undergo rigorous imprisonment for one month and to pay a fine of Rs.25,000/- (Rupees Twentyfive thousand only). In default of payment of fine, the appellant/1st accused is directed to undergo simple imprisonment for six months. (iv) Set off for the period from 28.10.2000 to 30.11.2000 is allowed. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**