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2012 DIGILAW 580 (KAR)

Anjineyalu v. State of Karnataka

2012-07-19

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal filed under Section 374(2) of Cr.P.C. by the accused persons in S.C. No. 259/2002 on the file of II Additional District and Sessions Judge, Bangalore Rural District, Bangalore is directed against the judgment of conviction and order of sentence dated 16.11.2005 passed in the said case convicting the appellants-accused for the offence punishable under Section 489C of IPC and sentencing them to undergo Rigorous Imprisonment for five (5) years and each of them to pay fine of Rs. 5,000/- for the said offence. 2. The case of the prosecution in brief is as under: On 24.4.2001 while P.W. 7-Lokeshwara, PSI, Doddallaballapur Police Station was discharging duty as SHO, at about 3.00 p.m., he received a credible information that in the house of accused No. 1 situated near Mangala School, accused persons are dealing with fake notes. Immediately P.W. 7 secured the presence of P.Ws. 1 to 3 and 8 as independent panchas, apprised them about the credible information which he had received and requested them to act as panchas, for which all of them agreed; that thereafter P.W. 7 alongwith P.Ws. 1 to 3 and P.W. 8 and his staffs i.e. P.Ws. 5 and 6 went near the house of accused No. 1, and reached the first floor of the house, they saw accused Nos. 1 and 2 inside the house hurriedly keeping one black coloured bag in the almerah. Immediately, P.W. 7 alongwith his staff and panchas took out the bag from the almerah and on verification of the bag, it was found containing 40 notes of denotation of Rs. 500/-. On verification, there were more than one note bearing the same serial numbers. Therefore, P.W. 7 was of the opinion that they were all fake notes. Thereafter, in the presence of panchas and other staff, P.W. 7 separately bundled the notes bearing same numbers and then put all the bundles in a white coloured bag, sealed the same with seal bearing letter ‘H’. Thereafter, P.W. 7 made search in the house to know whether there are any printing machines and other fake notes, but nothing more was found in the house. With regard to this seizure, P.W. 7 drew up a detailed mahazar as per Ex.P.1 between 4.00 to 5.00 p.m. to which the panchas and other staff subscribed their signatures. Thereafter, P.W. 7 made search in the house to know whether there are any printing machines and other fake notes, but nothing more was found in the house. With regard to this seizure, P.W. 7 drew up a detailed mahazar as per Ex.P.1 between 4.00 to 5.00 p.m. to which the panchas and other staff subscribed their signatures. Thereafter, on return to police station, P.W. 7 prepared a suo motu report as per Ex.P.6, based on which, he registered case in Crime No. 60/2001 for the offence punishable under Section 489C of IPC and submitted FIR as per Ex.P-7 which reached the jurisdictional Magistrate at 6.30 p.m. on the same day. P.W. 10-H.R. Radhamani, Police Inspector of C.A. Squad, COD, Bangalore took up further investigation of the case from P.W. 7 and during investigation, she recorded the statements of the witnesses, sent the seized notes to RBI for examination and report. P.W. 4-M. Venkatapathy, Treasurer of RBI on examination of notes sent, furnished his opinion as per Ex.P.5 to the effect that all the notes sent for examination were fake and counterfeit currency notes. After completing investigation P.W. 10 laid charge sheet before the jurisdictional Magistrate. 3. On committal of the case, the accused appeared before the learned Sessions Judge and pleaded not guilty for the charge levelled against them and claimed to be tried. During the trial, the prosecution examined in all 10 witnesses as P.Ws. 1 to 10 and placed reliance on documentary evidence marked as Exs.Pl to P10. Counterfeit currency notes were marked as MOs. 1 to 40. During their examination under Section 313 Cr.P.C., accused persons denied all the incriminating circumstances against them in the evidence of prosecution witnesses. They did not choose to lead any defence evidence. The defence of accused was one of total denial and that of false implication. After hearing both sides and on appreciation of both oral as well as documentary evidence, by judgment under appeal, the learned Sessions Judge, placing reliance on the evidence of P.Ws. 4 to 7 held prosecution has proved the possession of the counterfeit currency notes MOs. 1 to 40 by the accused persons and its seizure under mahazar Ex.P1. In that view of the matter, the learned Sessions Judge convicted the accused persons for the offence punishable under Section 489C of IPC and sentenced them accordingly as noticed supra. 4 to 7 held prosecution has proved the possession of the counterfeit currency notes MOs. 1 to 40 by the accused persons and its seizure under mahazar Ex.P1. In that view of the matter, the learned Sessions Judge convicted the accused persons for the offence punishable under Section 489C of IPC and sentenced them accordingly as noticed supra. Aggrieved by the said judgment of conviction and order of sentence, the appellants/accused Nos. 1 and 2 are in appeal before this Court. 4. I have heard the learned Counsel appearing for the appellants/accused and the learned High Court Government Pleader appearing for the respondent-State. 5. The contentions of the learned counsel appearing for the appellants-accused are as under: The judgment under appeal is highly perverse and illegal in as much as the learned Sessions Judge has committed error in placing reliance on the interested testimony of P.Ws. 5 to 7 who are the police officials to come to the conclusion that the prosecution has proved the seizure of the counterfeit currency notes from the house of accused No. 1. That the learned Sessions Judge has failed to see that none of the so called panch witnesses examined as P.Ws. 1 to 3 and 8 have supported the case of the prosecution to any extent and in the absence of any evidence from independent witnesses, the evidence of P.Ws. 5 to 7, who are the police officials and members of the alleged raiding party could not have been the basis to record conviction. That the learned Sessions Judge has failed to appreciate the motive attributed to P.W. 7, for false implication of the accused. In this regard, the learned Sessions Judge has failed to see that P.W. 7 has clearly admitted in his cross-examination that accused No. 1 alongwith the wife of his friend and 14 to 15 others had come to the police station to lodge complaint and at that time there was galata in the police station and therefore the probability of P.W. 7 falsely implicating the two accused persons in the case in that background cannot be ruled out. That the learned Sessions judge has failed to notice that though according to P.W. 7, Ex.P.1 mahazar was the document which came into existence first in point of time, did not reach the jurisdictional Magistrate alongwith the FIR, but on the other hand, as could be seen from the endorsement made on Ex.P-1, it reached the jurisdictional Magistrate only at 5.00 p.m. on 25.4.2001 while the FIR reached the Jurisdictional Magistrate at 6.30 pm on 24.4.2001 and this circumstance creates great amount of doubt about the genuineness of Ex. P. 1. That the learned Sessions Judge has further failed to see that if Ex. P. 1 had come into existence at its purported time, the names of the panchas as found in Ex.P.1 would have been mentioned in the report Ex.P.6, based on which, the case was registered. Therefore, non mentioning of the names of panchas in Ex.P-6 creates doubt about Ex.P.1 coming into existence at its purported time. That the Court below has failed to see that though as per the contents of Ex.P-1, 50 notes were seized, but as per Ex. P. 4 the covering letter addressed to the Reserve Bank of India for the purpose of sending the bundle containing the seized notes to RBI, there were only 40 currency notes. This discrepancy has not been explained by P.W. 7. That the Court below has failed to see that though the counterfeit currency notes stated to have been bundled in a white cloth bag with a seal bearing letter ‘H’ as stated in Ex.P.1, there is no indication as to whether the signatures of the panch witnesses were obtained on the said bundle. Therefore, the alleged seizure is highly doubtful. That the learned Sessions Judge has failed to notice that even as per Ex.P.10 the property purchased by the wife of accused No. 1 was a vacant site and in the absence of any documentary evidence to show that after purchase of vacant site a house was constructed thereon, the case of the prosecution regarding seizure of MOs. 1 to 40 from the house of accused No. 1 cannot be believed. That the learned Sessions Judge has failed to see that accused No. 2 is not a member of family of accused No. 1 nor he was in possession or control of the house in which the alleged seizure was effected. 1 to 40 from the house of accused No. 1 cannot be believed. That the learned Sessions Judge has failed to see that accused No. 2 is not a member of family of accused No. 1 nor he was in possession or control of the house in which the alleged seizure was effected. Therefore, the accused No. 2 cannot be attributed with possession of any counterfeit currency notes as even according to the prosecution the alleged counterfeit currency notes were removed from the almerah found in the house of accused No. 1. Therefore, the conviction recorded by the learned Sessions Judge against the accused persons is highly perverse and without any basis as such, the judgment is liable to be set aside and the accused are entitled for an order of acquittal. 6. On the other hand, the learned High Court Government Pleader sought to justify the judgment under appeal and contended that the learned Sessions Judge on proper appreciation of oral and documentary evidence, has recorded a finding of guilt against the accused and the findings recorded by the learned Sessions Judge are sound and reasonable regard being had to the evidence on record. Therefore, there are no grounds warranting interference with the well reasoned judgment of the trial Court. He further contended that during the cross examination of all the material witnesses, there is absolutely no suggestion that the accused No. 1, was not the owner of the house from where the counterfeit currency notes were seized. Therefore there was no need on the part of the prosecution to have produced any document evidencing construction of the house. He further contended that some minor discrepancies or inconsistencies in the evidence of the prosecution witnesses cannot be a ground to discard the evidence of prosecution witnesses . He contended that the trial Court has not committed any error in placing reliance on the evidence of police witnesses since the independent witnesses have consciously turned hostile only with a view to help the accused. According to the learned Government Pleader, evidence of witnesses cannot be discarded merely on the ground that they are police officials and members of raiding party. Therefore, the learned Sessions Judge is justified in placing reliance on the evidence of P.Ws. 5 to 7 to record a finding as to the seizure of counterfeit currency notes from the house of accused No. 1. Therefore, the learned Sessions Judge is justified in placing reliance on the evidence of P.Ws. 5 to 7 to record a finding as to the seizure of counterfeit currency notes from the house of accused No. 1. He contended that to prove the guilt of the accused persons for the offence punishable under Section 489C of the I.P.C., it is sufficient if the prosecution proves the possession of the counterfeit currency notes by the accused persons and having regard to the facts and circumstances of the case and in the light of the evidence on record, the prosecution has satisfactorily proved the seizure of counterfeit currency notes from the house of accused No. 1 and thereby, the prosecution has proved conscious possession of counterfeit currency notes as such, the judgment under appeal does not suffer from any perversity or illegality. Therefore, he sought for dismissal of the appeal. 7. In the facts and circumstances of the case and in the light of the submissions made by both sides, the points that arises for my consideration are: (1) Whether the judgment under appeal suffers from perversity or illegality warranting interference by this Court.? (2) Whether the learned Sessions Judge is justified in convicting the appellants/accused persons for the offence punishable under Section 489C of the IPC? 8. I have bestowed my serious consideration to the submissions made by both sides. As noticed supra, the accusation made against the two accused persons was that they were found in possession of forged counterfeit currency notes and thereby, they are guilty of the offence punishable under Section 489C of the IPC. 9. The essential ingredients to prove the offence punishable under Section 489C of IPC is that the accused was in possession of forged or counterfeit currency notes and that the accused at that time knew or had reason to believe that it was forged or counterfeit currency notes. Therefore, in order to prove the guilt of the accused persons for the said offence, the prosecution will have to establish satisfactorily that the accused were found in conscious possession of counterfeit currency notes and such currency notes were recovered from their possession. 10. Therefore, in order to prove the guilt of the accused persons for the said offence, the prosecution will have to establish satisfactorily that the accused were found in conscious possession of counterfeit currency notes and such currency notes were recovered from their possession. 10. As noticed supra, even according to the case of prosecution, when the raiding party went near the house of Al they saw the two accused hurriedly keeping a black coloured bag into the almerah which was found there and thereafter the raiding party went inside, took out the black coloured bag from inside the almerah and the said bag was found containing 40 notes which on the face of it were found to be fake currency notes, therefore, they were seized. Thus, even according to the case of prosecution the counterfeit currency notes were not recovered from the person of the accused. No doubt from the evidence of P.W. 4 and his report Ex.P5, it is satisfactorily established that MOs. 1 to 40 were sent for his examination and on examination, those notes were found to be fake and counterfeit currency notes. This part of the evidence of P.W. 4 is not seriously challenged. Even to the naked eye, MOs. 1 to 40 are found to be fake and counterfeit currency notes, since many of these notes bear the same serial number, and therefore, the prosecution has proved that Mos. 1 to 40 are counterfeit currency notes. However, the crucial question to be considered is whether these MOs. 1 to 40 were seized from the possession of any of these two accused persons. 11. As could be seen from the record and also the judgment under appeal, though according to the prosecution P.Ws. 1 to 3 and 8 were panch witnesses present at the time of the alleged seizure of MOs. 1 to 40, none of them have supported the case of prosecution during the trial of the case. All of them have been treated as hostile and have been cross examined by the learned Public Prosecutor. Thus, the evidence of P.Ws. 1 to 3 and 8 is of no assistance to the prosecution. Therefore, with regard to the alleged seizure, only evidence available before the trial Court was the evidence of P.Ws. 5 and 6 the Police constables and that of P.W. 7, PSI heading the raiding party. Thus, the evidence of P.Ws. 1 to 3 and 8 is of no assistance to the prosecution. Therefore, with regard to the alleged seizure, only evidence available before the trial Court was the evidence of P.Ws. 5 and 6 the Police constables and that of P.W. 7, PSI heading the raiding party. As noticed supra, the learned Sessions Judge has placed reliance on the testimony of P.Ws. 5 to 7. Of course, it is fairly well settled by catena of decisions that the evidence of witnesses cannot be discarded merely on the ground that they are police officials and/or they are members of the raiding party. However, before accepting the evidence of such witnesses, the Court will have to closely scrutinise the same and to find out as to whether the evidence of such witnesses are reliable. The Court also requires to find out as to whether the evidence of such witnesses calls for corroboration or assurance from other evidence. 12. In the case on hand, though according to P.W. 7, MOs. 1 to 40 were seized under mahazar drawn as per Ex.P1 in the house of accused No. 1 and thereafter, on his return to the police station, he prepared a suo motu report as per Ex.P6 based on which he registered the case and submitted FIR, Ex.P1 was not sent to the jurisdictional Magistrate alongwith FIR Ex.P7. From the above narration, it is clear that Ex.P1 was the document which came into existence first in point of time. Based on Ex.P1 only P.W. 7 stated to have prepared the report Ex.P6, registered the case and submitted FIR-Ex.P7 to the Jurisdictional Magistrate alongwith Ex.P6. However, FIR was received by the jurisdictional Magistrate at 6.30 PM on 24.2.2001, the mahazar Ex.P1 was received by the jurisdictional magistrate at 5.00 pm on 25.4.2001 as is clear from the endorsement made on Ex.P1 by the judicial magistrate. 13. In Ex.P6-complaint, the names of the panch witnesses are not mentioned. If Ex.Pl had come into existence at its purported time, earlier to Ex.P6 there was no reason for P.W. 7 not to mention the names of panch witnesses in Ex.P6. Therefore, Ex.P1 coming into existence at its purported time is not free from doubt. If Ex.Pl had come into existence at its purported time, it would have certainly reached the judicial magistrate alongwith Ex.P6 and P7. Therefore, the evidence of P.Ws. Therefore, Ex.P1 coming into existence at its purported time is not free from doubt. If Ex.Pl had come into existence at its purported time, it would have certainly reached the judicial magistrate alongwith Ex.P6 and P7. Therefore, the evidence of P.Ws. 5 to 7 with regard to the alleged seizure as stated in Ex.P1 requires some assurances from the independent witnesses. As noticed supra, none of the independent witnesses supported the alleged seizure. No doubt P.W. 1 in his cross-examination by the learned Public Prosecutor on being treated as hostile, has admitted that he would subscribe signature to any document only after understanding its contents. On that ground alone, it cannot be said that P.W. 1 has subscribed his signature to Ex.P.1 after under standing its contents. The very fact that Ex.P.1 did not reach the Jurisdictional Magistrate alongwith Ex.P-6 and P-7 is sufficient to doubt its existence at its purported time. Therefore, it cannot be said that P.Ws. 1 to 3 and 8 have deliberately deposed falsehood before Court. However, according to them, their signatures were obtained in the police station and no seizure was effected in their presence at any place. The contents of Ex.P.1 does not indicate as to whether the signatures of the witnesses were obtained on the bundle containing the counterfeit currency notes. This also creates doubt about the genuiness of the alleged seizure and the presence of the witnesses. At the bottom of page 2 of Ex.P-1, the total number of currency notes seized has been mentioned as 50 numbers, but according to EX.P.4, the covering letter addressed to the RBI, there were only 40 notes. Even as per Ex.P.5-report submitted by P.W. 4, the bundle sent to him for his examination contained only 40 notes of denomination of Rs. 500/-. P.W. 7 has not come out with any explanation with regard to this discrepancy. Though the alleged seizure was effected on 24.4.2001, the seized notes were shown to have been sent to RBI only on 14.9.2001, nearly about 5 months after the alleged seizure. It is not forthcoming as to in whose custody the bundle containing the seized notes was found during this period. Therefore, possibility of tampering the said bundle during this period cannot be ruled out. It is not forthcoming as to in whose custody the bundle containing the seized notes was found during this period. Therefore, possibility of tampering the said bundle during this period cannot be ruled out. Though P.W. 4 in his evidence has stated that he received the sealed bundle and he opened the sealed cover in the presence of the Head Constable who had brought the bundle, he has not stated as to what kind of seal was found on the bundle which was sent to RBI. Therefore, it is not clear as to whether, the very bundle sealed as stated in Ex.P-1 was sent for examination. There is absolutely no explanation as to why there was such inordinate delay in sending the notes for examination by the RBI officials. In my opinion all these factors have rendered the evidence of P.Ws. 5 to 7 with regard to the alleged seizure doubtful and it is highly unsafe to place reliance on the evidence of these witnesses without there being any corroboration from the independent witnesses. As none of the independent witnesses have supported the case of the prosecution, in my opinion, the learned Sessions Judge is not justified in placing reliance on the testimony of P.Ws. 5 to 7 to base conviction. 14. As noticed supra, according to prosecution the alleged counterfeit currency notes were found in a black colour bag inside the almerah. The evidence on record does not indicate that black colour bag was seized. If the counterfeit currency notes were found in a bag it is not forthcoming as to why the said bag was not seized. Even according to the prosecution, the almerah in which the bag containing counterfeit currency notes was found in the house of Al. It is not the case of the prosecution that A2 is in any way related to Al nor it is the case of prosecution that A2 is the member of the family of Al. Merely because when the raiding party went to the house of Al, A2 was also found therein, it cannot be said that A2 was also found in possession of counterfeit currency notes which were inside the almerah. Therefore, from the very case of the prosecution, it is clear that the prosecution has not proved that A2 was found in possession of counterfeit currency notes. Therefore, from the very case of the prosecution, it is clear that the prosecution has not proved that A2 was found in possession of counterfeit currency notes. At this stage, it is useful to refer to a decision of the division bench of this Court in the case of State of Karnataka vs. K.S. Ramdas, 1976 Crl.L.J. 228, wherein while dealing with an appeal by the State against acquittal of the accused persons for various offences including the offence under Section 489C of the IPC, at para 27, the Court has observed thus: “27. A-4 is not a member of the family of A-3. The case of the prosecution is that A-4 was lying on a bed in a room in the house of A-3 when these people i.e., P.Ws. 6 and 74 and another panch, visited the house of A-3 at the instance of A-9. The fact that A-3 did possess a huge quantity of similar notes, does probablise that A-3 might have secreted one bundle below the bed on which A-4 might have been innocently lying down. It might also be that A-4 did know that such a bundle was below the bed on which he was lying. But, it cannot be conclusively inferred that the bundle was in the exclusive possession of A-4. Hence, we hold that the prosecution has filed to establish the charge under Section 498C of Indian Penal Code, against A-4.” 15. Though in that case a bundle of counterfeit currency notes had been kept beneath the bed on which the accused No. 4 was lying inside the house of A3 and even if A4 had the knowledge of such bundle beneath the bed on which he was lying, their lordships have concluded that it cannot be conclusively inferred that the bundle was in the exclusive possession of A4, as such, the prosecution has failed to establish the charge under Section 489C of the IPC against the accused. The above observation made by the division bench squarely applies to the facts of this case in so far as the case against A2. Even if the case of prosecution with regard to the presence of A2 in the house of Al is accepted, his mere presence there cannot lead to a conclusion that he was in exclusive possession of the counterfeit currency notes. Even if the case of prosecution with regard to the presence of A2 in the house of Al is accepted, his mere presence there cannot lead to a conclusion that he was in exclusive possession of the counterfeit currency notes. However, the learned sessions Judge, as could be seen from the judgment under appeal, has not adverted to this aspect of the matter. The learned Sessions Judge merely on the basis of the oral evidence of P.Ws. 5 to 7 has proceeded to hold A2 guilty of the offence punishable under Section 489C of the IPC on the ground that he was also found present there. The finding recorded by the trial Court against A2 is without any basis as such it is perverse and cannot be sustained. In my opinion, the evidence placed by prosecution does not conclusively prove the guilt of A2 for the offence punishable under Section 489C of IPC. 16. The prosecution in order to establish that Al was the owner of the house in which counterfeit currency notes were found has placed reliance on Ex.P-10, copy of the sale deed dated 29.7.1999. As per the contents of Ex.P10, one Smt. Jayalakshmi w/o Anjaneyalu A1 purchased the vacant site measuring 20’ x 40’ forming part of gramatana kaneshmari No. 856 in Assessment Register No. 39/1 situated in Aralumallige village of Doddaballapur Taluk from one Smt. H. Mala. Perusal of Ex.P10 does not indicate the existence of any house on the property purchased by the wife of Al. Apart from Ex.P10, prosecution has not produced any other evidence to show the existence of house on the site purchased under Ex.P-10. Of course, during the cross examination of P.Ws. 5 to 7, it is not suggested on behalf of Al that there is no house. Nevertheless, it is for the prosecution to prove the existence of the house owned by Al or his family members. However, the prosecution has not placed any acceptable evidence as to the existence of the house owned by Al or by any of his family members. This fact also creates doubt about the alleged seizure as stated in Ex.P1. P.W. 7 in his cross examination has admitted that one Mr. Anand is a friend of Al and the wife of said Mr. Anand had come to the Police Station to give a complaint. This fact also creates doubt about the alleged seizure as stated in Ex.P1. P.W. 7 in his cross examination has admitted that one Mr. Anand is a friend of Al and the wife of said Mr. Anand had come to the Police Station to give a complaint. He had also admitted that alongwith the said complainant, Al and 14 to 15 others from the neighboring village had come to the Police Station. However, he has denied the further suggestion that at that time, there were exchange of words between himself and Al and in that back ground he has falsely implicated the two accused persons. Having regard to the fact that Al alongwith the wife of his friend Mr. Anand had come to the police station accompanied by 14 to 15 others to lodge a complaint, the possibility of exchange of words in the police station with regard to registration of the case cannot be ruled out. Therefore, it is highly unsafe to rely on the testimony of P.W. 7 with regard to the alleged seizure. Having regard to the various infirmities pointed out, I am of the considered opinion that the learned sessions judge is not justified in holding Al guilty of offence punishable under Section 489C of the IPC. The judgment under appeal in my opinion suffers from perversity. The learned Sessions Judge has not properly evaluated the evidence on record and appears to have been carried away merely by the testimony of three police officials to come to the conclusion that the accused are guilty of the offence charged. Having regard to the discussions made above, I am of the opinion that the prosecution has utterly failed to establish the guilt of the accused beyond reasonable doubt. Therefore, they are entitled for an order of acquittal. 17. In that view of the matter, the appeal is allowed. The judgment of conviction and order of sentence dated 16.11.2005 passed by the II Addl. District and Sessions Judge, Bangalore Rural District, Bangalore, in Sessions Case No. 259/2002 convicting the accused Nos. 1 and 2 for the offence punishable under Section 489C IPC is hereby set aside. The appellants are acquitted of the said charge. The bail bond and surety bonds executed by the accused are ordered to be discharged. Fine amount if any deposited are ordered to be refunded to them.