State of Kerala v. C.I. Moidu and Hassanar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945** **CRL.APPEAL NO. 2302 OF 2007** **AGAINST THE JUDGMENT DATED 19.11.2007 IN SC 520/2004 OF THE ADDITIONAL SESSN.COURT (ADHOC-II), KASARAGODE** ## **APPELLANTS/ACCUSED:** - **1 C.I. MOIDU, S/O. IBRAHIM, ETAMUGAR VALLAPPADY, BEYPORE VILLAGE,, KASARAGOD DISTRICT.** - **2 HASSANAR, S/O. ABDULLA POTIPPALAM HOUSE, VALLAPADY, BEYPORE VILLAGE,, KASARAGOD DISTRICT.** **BY ADV M.RAMESH CHANDER (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL** **HEARING ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.2302 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.2302 of 2007 ----------------------------------------------------------Dated this the 9[th] day of January, 2024** ## **JUDGMENT** The appellants challenge the conviction and sentence for an offence under Section 489C read with Section 34 of the Indian Penal Code, 1860 (IPC). They were sentenced to undergo imprisonment for six months by the Additional Sessions Judge (Adhoc-II), Kasaragod, as per the judgment dated 19.11.2007. 2. Heard the learned counsel for the appellants and the learned Public Prosecutor. 3. The final report was filed with the following allegations: At 8.30 a.m. on 20.09.1996 the appellants were found in possession of ten counterfeit notes; the 1[st] appellant had four currency notes and the 2[nd] appellant had six. Finding that the said currency notes were counterfeit ones, they were arrested by PW1 and seized the notes by preparing Ext.P1 seizure 3 Crl.Appeal No.2302 of 2007 mahazar. After registering a crime as per Ext.P2, investigation was handed over to the CBCID. PW5 conducted the initial investigation. He recorded statements of the witnesses and submitted a forwarding note for getting the currency notes examined at the Currency Note Press, Dewas. The investigation was completed by PW6. 4. When a charge for the offence under Section 489C of the IPC was framed, the appellants denied and claimed to be tried. The prosecution has examined PW1 to 6 and Exts.P1 to P8 were marked. MO1 series are the counterfeit notes seized from the possession of the appellants. During the questioning under Section 313 of the Code, they maintained that they were innocent. Their explanation was that they were nabbed from their respective houses and the case was foisted against them. No defence evidence was let in. 5. The trial court, after considering the materials on record, found that there was no reason to disbelieve PW1 and his evidence was enough to find that the appellants were 4 Crl.Appeal No.2302 of 2007 found in possession of MO1 series notes. Ext.P7 is the report obtained from the Currency Note Press, as per which MO1 series were reported to be counterfeit ones. Based on that report and the evidence tendered by PW1, the court below held that the charge levelled against the appellants was proved beyond reasonable doubt. Hence, they were convicted and sentenced. 6. The learned counsel for the appellants would submit that the very genesis of the case is shrouded by doubtful circumstances inasmuch as at the time of arrest and seizure, PW1 alone was there. No police officer is used to patrol without other officers and that by itself shows that the evidence tendered by PW1 is unreliable. When there is absolutely no independent evidence, the position becomes more worse and the defence of the appellants that they were falsely implicated gets probablised. It is also submitted that even accepting the evidence of PW1 to be true, that is insufficient to constitute an offence, in terms of the charge framed against them. 5 Crl.Appeal No.2302 of 2007 7. The learned Public Prosecutor, on the other hand, would submit that PW1 is totally a creditworthy witness and in the absence of anything to attribute _mala fides_ on his part, the trial court rightly had believed him and entered the conviction. PW1, while going to Kasaragod Police Station for duty, happened to get the information and proceeded to the place of occurrence to effect the arrest and seizure. That was purely an accidental arrest and seizure. The fact that the witnesses to the seizure turned hostile to the case of the prosecution is not a reason to disbelieve PW1, whose evidence is otherwise reliable. The learned Public Prosecutor has taken me through the evidence of PW1 and urged that his evidence is free of blemishes and therefore the same can safely be acted upon. 8. In **Tahir v. State (Delhi) [(1996) 3 SCC 338]** while dealing with the question whether uncorroborated testimony of an official witness is enough to record a conviction, the Apex Court held that where the evidence of the police officials, after careful scrutiny, inspires confidence 6 Crl.Appeal No.2302 of 2007 and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lent corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** while confronted with a similar situation held that the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. Such a view was reiterated by the Apex Court in **Baldev Singh vs State of Haryana [(2015) 17 SCC 554]** . 7 Crl.Appeal No.2302 of 2007 9. There is nothing wrong in forming the basis for a conviction the uncorroborated testimony of an official witness. When the oral testimony of the official witness is free of blemishes and there is no reason to attribute any bias on his part, certainly the evidence of such a witness can be believed and acted upon. Viewed so, the evidence of PW1 has to be acted upon. 10. The version of PW1 is that while he was going to the Kasaragod Police Station for duty on 20.09.1996, he got the information that two persons were found in Mulleria Town possessed with counterfeit notes. He was working as Sub Inspector of Police, Adhur at that time. He reached the spot and located the appellants. It is his further version that on approaching them, the appellants handed over him the currency notes. He did not state during chief-examination as to where the appellants kept the currency notes. But in the cross-examination, he explained that the notes were in their shirt pockets. He has prepared Ext.P1 mahazar at the place of occurrence in order to seize the currency notes. The 8 Crl.Appeal No.2302 of 2007 contents of Ext.P1 tally with the oral testimony of PW1 in court. 11. PWs.2 and 3 are witnesses to Ext.P1. Both PWs.2 and 3 admitted their signatures in Ext.P1. But, they denied having seen the seizure of currency notes from the possession of the appellants. They thus deposed totally against the case of the prosecution. Their evidence is not available to render any assistance to the prosecution or to corroborate the evidence of PW1. 12. On the detailed analysis of the evidence of PW1, I find no reason to disbelieve his assertion that he arrested the accused and seized MO1 series from their possession. MO1 series were sent to the Currency Note Press, Dewas as per Ext.P6 report. Ext.P7 is the report received from the Press. As per which, MO1 series were certified to be counterfeit notes. 13. In the light of the provisions of Section 292 of the Code, the report as per Ext.P7 can be used as evidence even without calling its author as a witness. The report as per Ext.P7 therefore confirms that MO1 series are counterfeit 9 Crl.Appeal No.2302 of 2007 notes. Thus, the evidence tendered by the prosecution has proved that the appellants were in possession of MO1 series and the said currency notes are counterfeit notes. 14. In order to constitute an offence under Section 489C of the IPC, a person should possess forged or counterfeit note or bank note knowing the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine. Going by the oral testimony of PW1 that on his approaching them, the appellants handed over to him MO1 series currency notes. PW1 did not venture to have their body search. The assertion of PW1 is that no other currency note was found in their possession. 15. It is the further version of PW1 that he, after sending a search memo to the court, conducted a search of the houses of both the appellants. The search did not fetch any objectionable article or materials. From the said circumstances, it cannot readily be inferred that the appellants possessed the currency notes with the intention of using the same as genuine. Of course, when a person 10 Crl.Appeal No.2302 of 2007 possesses counterfeit notes, an inference that they intended to use the same as genuine is very much possible. But in order to sustain a criminal charge, such an inference is not enough. There must be materials, atleast in the form of a positive assertion by the detecting officer or someone else, who could have such an inference, states in court regarding such intention of the accused. The intention being the state of mind, cannot easily be deciphered. But the circumstances which would establish the existence of such an intention, atleast, should have been brought on record by the prosecution. 16. As stated, the circumstances in which MO1 series were seized from the possession of the appellants would not readily allow a positive inference that they intended to use the same as genuine. The evidence let in by the prosecution is insufficient to establish that. Unless the ingredients of the offence are proved, it cannot be said that the charge levelled against the appellants is proved beyond doubt. In this case, the evidence let in by the prosecution is insufficient to 11 Crl.Appeal No.2302 of 2007 establish beyond doubt the aforesaid ingredient of the offence. The benefit of such a doubt has to be extended to the appellants. Therefore, the appellants are liable to be acquitted, extending them the benefit of doubt. 17. The appeal is accordingly allowed. On setting aside the judgment dated 09.11.2007 in S.C.No.520 of 2004 of the court below, the appellants are acquitted. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr