Shibu S/O Mani and Sajan v. State of Kerala

CRL.A.No.773 OF 2005 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942** **CRL.A.No.773 OF 2005** **AGAINST THE JUDGMENT IN SC 309/2001 DATED 29-04-2005 OF ADDITIONAL SESSIONS JUDGE, (FAST TRACK COURT I), TRIVANDRUM** ## **APPELLANT/ACCUSED:** **1 SHIBU S/O MANI, PRATHEEP HOUSE, NEAR ALL SAINTS COLLEGE, TITANIUM WARD, KADAKAMPALLY VILLAGE. 2 SAJAN, S/O.VASANTHAKUMAR INDU BHAVAN, NEAR IDIYADIKKODE TEMPLE, ULLOOR PANCHAYATH, PADIKKATTU MURI, CHERUVAKKAL VILLAGE.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.KRISHNADAS P. NAIR SRI.PRABHU VIJAYAKUMAR** ## **RESPONDENT/:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.MAYA.M.N., GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-092020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.773 OF 2005 2 ## **JUDGMENT** ## **Dated this the 29th day of September 2020** The appellants are the accused in S.C.No.309/2001 on the file of the Additional Session Judge (Fast Track Court I), Thiruvananthapuram. The above case is chargesheeted by the Detective Inspector, CBCID (CFS), Thiruvananthapuram against the appellants alleging the offences punishable under Sections 489B and C IPC. 2. The prosecution case is that on 7.2.1996 at 7.30 pm, the 1[st] accused in furtherance of his common intention of trafficking counterfeit currency notes along with other accused exchanged one counterfeit currency note of the denomination of Rs.100/- from out of 10 currency note of the denomination of Rs.100/- possessed by A1 to PW4, knowing or having reason to believe that they are counterfeit currency notes. It is also alleged that A1 to A4 in furtherance of their common intention possessed counterfeit currency notes. It is alleged that the 4[th] accused possessed 254 counterfeit currency notes of the denomination of Rs.100/- obtained from somebody and then handed over the same to A2 and A2 possessed the aforesaid 254 counterfeit currency CRL.A.No.773 OF 2005 3 notes of the denomination of Rs.100/- and then A2 with the knowledge of A3 handed over 10 counterfeit currency notes of the denomination of Rs.100/- to A1 for the purpose of exchanging the same and thereafter A2 and A3 together kept the balance 244 counterfeit currency notes of the denomination of Rs.100/- in the almirah placed in the Apsara Gold Covering Works shop near llamkavu Temple, Ulloor conducted under the management of A2 and that A1 possessed nine counterfeit currency notes of the denomination of Rs.100/- by keeping the same in the back room of the hotel known as Scot Land Hotel near Ilamkavu Temple, Ulloor wherein A1 was residing and thereby committed the offences punishable under the aforesaid sections. 3. Accused Nos.1, 2 and 4 appeared before the lower court. The 3[rd] accused was reported as dead. The trial court framed charge under Section 489B and C IPC against the accused. The prosecution examined PW1 to PW8 and marked Exts.P1 to P11. MO1, MO2 and MO3 series are the material objects marked. Two witnesses were examined on the side of the defence. Exts.D1 to D4 were marked as exhibits. 4. After going through the evidence and the documents, the trial court found that the 1[st] accused is guilty under Sections 489B and C IPC. The 2[nd] accused is found guilty under CRL.A.No.773 OF 2005 4 Section 489C IPC. The 2[nd] accused was acquitted under Section 489B IPC. The 4[th] accused was found not guilty under Section 489B and C IPC. Aggrieved by the conviction and sentence, the 1[st] and 2[nd] accused filed this Criminal Appeal. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The counsel for the appellants submitted that even if the entire allegations are accepted, the offence under Section 489B IPC is not made out against the 1[st] accused. The counsel submitted that there is a contradiction between the evidence of the official witness and the independent witness. The counsel submitted that the entire evidence adduced by the prosecution is unreliable. The counsel submitted that there is no independent corroboration to the evidence adduced by the official witnesses. 7. The Public Prosecutor submitted that the trial court after considering the entire facts and circumstances of the case convicted the 1[st] and 2[nd] accused and there is nothing to interfere to the well considered judgment by this Court. 8. The point for consideration in this case is whether the appellants in this case committed the offence under Section 489B and C of IPC. 9. As I stated earlier, altogether eight witnesses were CRL.A.No.773 OF 2005 5 examined by the prosecution. PW1 is the alleged independent witness. He is a witness to Exts.P1 to P3 mahazars. PW2 is the Sub Inspector who detected the offence. PW3 is the attestor of Ext.P2 mahazar. PW4 is also an independent witness. PW5 is a Police Constable who accompanying the detecting officer. PW6 is the wife of the 3[rd] accused. PW7 is examined to prove the ownership of Apsara Gold Covering Works. He is the Revenue Officer of the Thiruvananthapuram Corporation. PW8 is the Detective Inspector of CBCID, who investigated the case. The available evidence adduced by the prosecution is that on 7.2.1996 PW4 seized MO1 fake currency note from the 1[st] accused and he prepared Ext.P1 mahazar. Based on his statement, MO2 series (9 counterfeit currency notes) were seized by the officer as per Ext.P2 mahazar. Thereafter based on the further statement of the 1[st] accused about 244 fake currency notes of denomination of Rs.100/- was seized from Apsara Gold Covering Works, which is marked as MO3 series. Ext.P3 is the mahazar. PW1 is the independent witness in this case. PW3 is also an attestor to Ext.P2 mahazar. PW2 is the detecting officer. 10. There is a clear discrepancy in the prosecution case as well as the case of PW1 and PW4 regarding the arrest of 1[st] accused and seizure of MO1 on the alleged date of occurrence. CRL.A.No.773 OF 2005 6 PW1 and PW4 deposed before the court that 1[st] accused attempted to escape by running and thereby PW1 and PW3 chased him and caught hold of him and they produced the 1[st] accused in the Medical College Police Station. But the case of PW2 and PW5 is that they reached in the evening fish market from where PW4 was selling fish. They saw the 1[st] accused being detained there and PW2 seized MO1 from the possession of 1[st] accused. This is contradictory to the evidence adduced by PW1 and PW3. Therefore as far as the seizure of MO1 is concerned, there is contradictory version between PW1 and PW3 on the one side and the official witnesses on the other side. The trial court relied this evidence to convict the 1[st] accused under Section 489B IPC. To attract the offence under Section 489B IPC, the prosecution has to prove that the accused used the forged or counterfeit currency notes as genuine. In this case, according to the prosecution, the 1[st] accused tried to purchase fish from PW4 by handing over MO1 fake note. The manner in which MO1 was seized is deposed by the independent witness and the official witness inconsistently. There is contradictory version about the same. In such circumstances, I am not in a position to rely the evidence of the prosecution as far as the seizure of MO1 counterfeit note is concerned. If that is not available, the 1[st] accused cannot be CRL.A.No.773 OF 2005 7 ## convicted under Section 489B IPC. 11. Then the question is whether the offence under Section 489C IPC is made out in this case. The specific case of the prosecution is that based on the confession statement of the 1[st] accused 9 counterfeit notes were seized from a lodge where the 1[st] accused was residing. Of course, the learned counsel for the appellant submitted that ownership of the lodge is not proved. That is not relevant in this case. These 9 counterfeit notes were seized based on the confession statement of the 1[st] accused. The seizure of MO2 series is proved by oral and documentary evidence. There is nothing to disbelieve the evidence of the prosecution witness as far as the seizure of MO2 series is concerned. The minor contradiction between the evidence of these two witnesses is to be ignored in these type of cases. Therefore, it is proved that 9 counterfeit notes are seized from the possession of the 1[st] accused as per Ext.P2 seizure mahazar. As per Ext.P11 certificate, it is proved that those notes are counterfeit currency notes. Therefore, the trial court perfectly justified in convicting the 1[st] accused under Section 489C IPC. 12. Now as far as the 2[nd] accused is concerned, based on the confession statement of the 1[st] accused 244 counterfeit currency notes were seized as per Ext.P3 mahazar from the CRL.A.No.773 OF 2005 8 establishment of the 2[nd] accused, Apsara Gold Covering Works. The seizure of these counterfeit notes from the possession of the 2[nd] accused is also proved through oral and documentary evidence. As I stated earlier Ext.P3 is the mahazar. MO3 series are 244 counterfeit currency notes. Therefore, the trial court perfectly justified in convicting the 2[nd] accused also under Section 489C IPC. 13. The next question is what is the sentence to be imposed on the 1[st] and 2[nd] accused. As far as Section 489C IPC is concerned, it is a bailable offence. The imprisonment is not mandatory under Section 489C IPC, when compared to Section 489B is concerned. This Court in **Mohammed Koya v. State** ## **of Kerala (2020(3) KLT 441)** held as follows: “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 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 Koya 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 CRL.A.No.773 OF 2005 9 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.” 14. In this case also the seizure was on in 1996. Now 24 years elapsed. No other criminal antecedents is reported as far as 1[st] and 2[nd] accused are concerned. They underwent pre-trial detention for the period from 8.2.1996 to 2.3.1996 as evident from page number 29 and 30 of the impugned judgment. Considering the entire facts and circumstances of the case and also considering the fact that there is no criminal antecedents alleged against the 1[st] and 2[nd] accused, who are the appellants in this case, I think, the sentence of fine is enough instead of sentence of imprisonment in this case. First appellant was found in possession of a counterfeit note and the second appellant was found in possession of 244 counterfeit notes. This also can be considered while fixing the fine amount. Therefore, this Criminal Appeal is allowed in part. I) The conviction and sentence imposed on the 1[st] appellant/1[st] accused under Section 489B IPC is set aside. II) The conviction imposed on the appellants under CRL.A.No.773 OF 2005 10 Section 489C IPC is confirmed. III) The 1[st] appellant/1[st] accused is directed to pay a fine of Rs.25,000/-. In default of payment of fine, the 1[st] accused is directed to undergo simple imprisonment for three months. IV) The 2[nd] appellant/2[nd] accused is directed to pay a fine of Rs.50,000/-. In default of payment of fine, the 2[nd] appellant is directed to undergo simple imprisonment for six months. V) The appellants are directed to pay the fine before the trial court within two months. If the amount is not paid within two months, the trial court will take appropriate steps in accordance to law. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab**