Krishnan Asari Gangadharan Asari v. State of Kerala
1999-11-30
K.T.KOSHI, N.VARADARAJA IYENGAR
body1999
DigiLaw.ai
Koshi, C.J.-The appellant, Gangadharan Asari, a goldsmith, has been convicted by the learned Sessions Judge of Quilon of offences punishable under sections 232,235 and 240 of the Indian Penal Code and sentenced to three several terms of imprisonment and three separate fines, with the direction that the sentences of imprisonment shall run concurrently. The offence under section 232 relates to counterfeiting Indian Coin, that under section 235 to possession of instrument or material for the purpose of using the same for counterfeiting Indian coin and that under section 240 to delivery of Indian coin, possessed with knowledge that it is counterfeit. Besides these three offences the charge against the appellant embraced commission of offences punishable under sections 234 and 243 as well, but the learned Judge found that there was no proof of the offence under section 234 and that inasmuch as the appellant was found guilty under section 240 there was no need to enter a separate conviction under section 243. Section 243 relates to possession of Indian coin by person who knew it to be counterfiet when he became possessed thereof. Section 234 dealt with making or selling instrument for counterfeiting Indian coin. Of the three offences for which the appellant has been found guilty he has been sentenced to undergo rigorous imprisonment for a period of 7 years andto pay a fine of Rs. 50 for that under section 232, rigorous imprisonment for 5 years and a fine of Rs. 25, for that under section 235 and rigorous imprisonment for the same period and fine in the same amount for that under section 240. In default of payment of fine for the first named offence the appellant is to undergo simple imprisonment for 1 month and in default of payment of the other two fines similar imprisonment for 15 days each. Before us in the appeal the appellant was not represented by counsel and after a careful persual of the records we have come to the conclusion that there is no need to interfere with the convictions though some modification in the sentences would appear to be called for. A brief resume of the prosecution case is to be found in the opening paragraph of the lower Court’s judgment and the relevant portion thereof may with advantage be quoted here.
A brief resume of the prosecution case is to be found in the opening paragraph of the lower Court’s judgment and the relevant portion thereof may with advantage be quoted here. "On receipt of Exhibit P-5 report of P.W. 12, a P.C. attached to the crime squad working under the Circle Inspector of Police, Quilon, to the effect that the accused was engaged in counter-feiting coins, P.W. 6, the Sub-Inspector of Police, Kundara at about 4-30 p.m. on 9th February, 1956, made a search of Thoravil house, Kallada, in which the accused with his wife P.W. 1 was residing and recovered from there in the presence of P.W. 3 and others M.Os. I to XI. M.O. I is a mould in two pieces for casting Indian one rupee coins of the 1944 series and M.O. I (a) is a mould in two pieces for casting Indian one rupee coins of 1945 series. M.O. II is a mould in two nieces for casting Indian half rupee coins of 1950 scries. M.O. III are two pieces of white lead and M.O. IV are two pieces of antimony. M.O. V is a plate of an alloy of white lead and antimony. M.O. VI is a pair of punches. M. O. VII is a file. M. O. VIII is an iron lamp which could be used for rnelting metals like while lead and antimony M.O. IX are seventeen Indian one rupee counterfeit coins of 1945 series and M.O. X is a torch light inside the tube of which were kept M.O. IX coins. M.O. XI is a pair of tongs. M.O. X torch-light with M.O. IX coins inside was taken by P.W. 16 during the course of the search from a wall on which it was hung and the other M.Os. were taken by the accused himself from the midst of the pots placed by the side of the western wall of the western veranda of the house where they were hid in two packets, and produced before P.W. 16. Exhibit P-1 search list was also prepared by P.W. 16 in the presence of the accused, his wife, P.W.1 and several others and got it attested by P.W. 3 and two other independent witnesses. The accused was arrested and taken in to custody forthwith. On further investigation it was revealed that the accused had tried to utter counterfeit one rupee coins like M.O. IX.
The accused was arrested and taken in to custody forthwith. On further investigation it was revealed that the accused had tried to utter counterfeit one rupee coins like M.O. IX. M.O. XII is one of such coins produced before P.W. 16 by P.W. 9, an assistant in a toddy shop which the accused used to visit. P.W. 4, P.W. 5 and P.W. 8 are proprietors of tea shops in which the accused tried to change similar counterfeit coins and P.W. 11 is a vendor of beedi and chew whom also the accused tried to defraud by offering a counterfeit one rupee coin for the purchases mad-by the latter. P.W. 6 is the agent of a chitty foreman who was offered seven counterfeit one rupee coins by the accused for the chitty subscription due from him. P.W. 2 is a close neighbour of the accused who has seen him engaged in making counterfeit coins." The offences for which the appellant has been convicted are as noticed above; possession of instrument or material for the purpose of using the same for counterfeiting Indian coin (section 235), counterfeiting Indian coin (section 232) and delivery of Indian coin, possessed with knowledge that it is counterfeit section 240). The main item of evidence in the case is that furnished by search conducted by P.W. 16 at the appellant’s residence when M.O. Nos. I to XI were recovered. Of these material objects the evidence of P.W. 10, Coin and Currency Expert of the Government of Travancore-Cochin and the report he furnished (Exhibit P-3) go to show that M.Os. I to VIII and XI are instruments and materials for counterfeiting Indian coin. The search and the recovery of these articles have been proved by the evidence of P.Ws. 1, 3, 12 and 16 and the lower Court has chosen to believe all those witnesses particularly P.W. 1, the wife of the appellant. The evidence of P.W. 16 shows that these nine articles were kept hidden in two packets by the side of the western wall of the western verandah of the appellant’s house and they were taken from there by the appellant himself and produced before P.W. 16. As pointed by the lower Court the collection of some of these instruments and other materials by the appellant more or less indicates the purpose for which they were collected and kept.
As pointed by the lower Court the collection of some of these instruments and other materials by the appellant more or less indicates the purpose for which they were collected and kept. The further evidence in the case regarding actual counterfeiting which will presently be referred to strengthen that inference. The evidence of P.W. 1 is decisive of the point as to possession and the purpose for which they were kept. The learned Judge was therefore perfectly right in entering a conviction against the appellant under section 235, Indian Penal Code. As for the offence under section 232 the main evidence is again that of P.W. 1. P.W. 2, a neighbour examined to prove the same fact has not been relied upon by the lower Court. The recovery of M.O. IX, 17 counterfeit one rupee coins and its container M.O. X a torch-light inside the tube of which these coins were kept go a long way in confirming the evidence of P.W. 1 as true. As observed by the learned Judge below the fact that these 17 coins were kept inside the tube of an electric torch makes it clear that the accused possessed them with the knowledge that they are counterfeit coins and that he has really kept them in a manner that other people would not easily find them out. The recovery of the coins together with the instruments and other materials M.Os. I to VIII and XI is further proof of the truth of the evidence of P.W. 1. The conviction under section 232 is also therefore right. With reference to the uttering of Indian coin (section 240) of the several witnesses examined before the lower Court by the prosecution that Court has placed reliance upon P.Ws. 4, 5, 6 and 9 while practically rejecting the evidence of P.Ws. 8 and 11. As for the evidence of P.Ws. 4, 5 and 6 there is nothing except their word of mouth, but the evidence of P.W. 9 stands on a different footing inasmuch as he produced before P.W. 16 a one rupee coin, M.O. XII, which in all respects agreed with the coins recovered from the accused’s house, namely, M.O. IX. The evidence of P.W. 9, if believed, is sufficient to sustain the conviction under section 240 and we are entirely in. agreement with the lower Court’s view that he is a witness of truth.
The evidence of P.W. 9, if believed, is sufficient to sustain the conviction under section 240 and we are entirely in. agreement with the lower Court’s view that he is a witness of truth. We therefore consider it unnecessary to deal with the evidence of the remaining witnesses examined to prove the crime of uttering false coins. All the same we confirm the conviction on this count as well based solely on the testimony of P.W. 9 corroborated as it is by the production of M.O. XII. At this point it is pertinent to consider whether it was right to join the charge under section 240 with the charge under the other sections. We do not consider that the joinder was proper. However, as no prejudice has been shown to have been caused thereby nor any objection taken for the joinder at any stage and particularly in view of clause (b) of section 537, Criminal Procedure Code, as amended by Act XXVI of 1955, we do not consider that any interference with the convictions and the sentences passed at the trial held by the lower Court should be made on that account. Our view that the convictions passed by the lower Court against the appellant under the three sections referred to above should be confirmed is based on the evidence the prosecution adduced in the case and the circumstances appearing in the prosecution evidence. In support of our conclusion it may, however, be stated that the appellant in his statement before the committal Court admitted his possession of M.Os. I to XI and that M.Os. I to VIII and XI were being used by him to counterfeit one rupee coins, that is, he really confessed guilt of having committed the offences under sections 232 and 235. He had however denied the truth of the prosecution evidence as to uttering false coins to the witnesses examined in the case though he admitted having passed off false coins as genuine to others. At the sessions trial he resiled from the above admissions and stated that the statement before the committal Court was made under police pressure. Though we have not based our conclusion on the said statement it lends support to our conclusion. In the result the convictions under all the three sections are confirmed. As for the sentences passed we seek to make two modifications.
Though we have not based our conclusion on the said statement it lends support to our conclusion. In the result the convictions under all the three sections are confirmed. As for the sentences passed we seek to make two modifications. In the first place we think a sentence of 5 years’ rigorous imprisonment would suffice for the offence under section 232 as well and accordingly the 7 years’ term awarded by the learned Judge for that offence is reduced to one for 5 years. That period will run concurrently with the 5 years’ period awarded for the offences under sections 235 and 240. Secondly it is not incumbent that when substantive terms of imprisonment are awarded any fine should be super-added to those sentences. The appellant is not known to be a man of means and imposition of these fines can only have a nuisance value for all concerned. Accordingly the the fines imposed by the lower Court in respect of all the three offences are cancelled. If already collected the fine will be refunded to the appellant. Subject to these modifications in the sentences the appeal will stand dismissed. K.S. ----- Appeal dismissed. Sentence modified.