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2016 DIGILAW 13 (MAD)

Liyakath Alikhan v. State

2016-01-04

A.SELVAM

body2016
JUDGMENT : A. Selvam, J. 1. The Convictions and Sentences, dated 6.5.2005, passed in Sessions Case No. 55 of 2005, by the Additional District and Sessions Court/Fast Track Court, No. I, Coimbatore, are being challenged in the present criminal appeal. 2. The case of the prosecution is that on 29.09.2003, at about 5.00 O'clock, in Tiruvallur Nagar, Pollachi Mahalingapuram, knowing fully well that particular currency notes are fake, the accused has given the same to one Srinivasan in connection with painting work and the said Srinivasan has tried to utilize the same in a tea stall. On the same day, at about 4.00 O'clock, the accused has been found in possession of three fake notes of Rs. 100/-. After occurrence, the defacto complainant, by name, Jeevanandham, has given a complaint and the same has been registered in Crime No. 400 of 2003. 3. On receipt of the complaint, alleged to have been given by the defacto complainant, the investigating officer, viz., P.W.10 has taken up investigation, examined connected witnesses and also made arrangements to arrest the accused and after his transfer, his successor in office, viz., P.W.11 has continued investigation and after completing the same, laid a final report on the file of the Judicial Magistrate, No. I, Pollachi and the same has been taken on file in P.R.C. No. 9 of 2004. 4. The Judicial Magistrate No. 1, Pollachi, after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Coimbatore Division and the same has been taken on file in Sessions Case No. 55 of 2005 and subsequently made over to the trial Court. 5. The trial Court, after hearing arguments of both sides and upon perusing the relevant documents, has framed first charge against the accused under Section 489-B of the Indian Penal Code; second charge against him under Section 489-C of the said Code and the same have been read over and explained to him. The accused has denied the charges and claimed to be tried. 6. On the side of the prosecution, P.Ws. 1 to 11 have been examined and Exs.P1 to P13 and M.Os. 1 to 3 have been marked. 7. The accused has denied the charges and claimed to be tried. 6. On the side of the prosecution, P.Ws. 1 to 11 have been examined and Exs.P1 to P13 and M.Os. 1 to 3 have been marked. 7. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973, as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. 8. On the side of the accused, the accused himself has been examined as D.W.1 and Exs.D1 to D6 have been marked. 9. The trial Court, after hearing arguments of both sides and upon perusing the relevant evidence available on record, has found the accused guilty under Section 489-B of the Indian Penal Code and sentenced him to undergo three years Rigorous Imprisonment and also imposed a fine of Rs. 3000/- with usual default clause. He has also been found guilty under Section 489-C of the said Code and sentenced him to undergo three years Rigorous Imprisonment and also imposed a fine of Rs. 2000/- with usual default clause. Against the convictions and sentences passed by the trial Court, the present criminal appeal has been preferred, at the instance of the accused, as appellant. 10. The learned counsel appearing for the appellant/accused has contended that in the instant case, the person to whom the accused is said to have given two fake notes, viz., Srinivasan, has been examined as P.W.8 and the witness, who is having connection with Observation Mahazar as well as confession, viz., Rajan, has been examined as P.W.3 and both of them have not given credible evidence so as to come to a conclusion to the effect that the accused has committed the offences mentioned in the charges and in fact, both of them have not supported the version of the prosecution and the trial Court, without considering lack of evidence on the side of the prosecution, has erroneously found the accused guilty under Sections 489-B and 489-C of the Indian Penal Code and therefore, the convictions and sentences passed by the trial Court are liable to be set aside. 11. The learned Additional Public Prosecutor has contended that in the instant case the specific charge framed against the accused is that on 29.09.2003, at about 5.00 O'clock, the accused has given two fake notes of Rs. 11. The learned Additional Public Prosecutor has contended that in the instant case the specific charge framed against the accused is that on 29.09.2003, at about 5.00 O'clock, the accused has given two fake notes of Rs. 100/- to P.W.8, in connection with painting work and P.W.8 has tried to utilize the same in a tea shop and subsequently, it is found that the currency notes in question are fake and thereafter, the accused has been arrested and given a confession statement and in pursuance of the same, another fake currency note of Rs. 100/- has been recovered and for the purpose of proving the case of the prosecution, P.Ws. 1 to 3 and 8 have been examined and the trial Court, after considering the overall evidence available on record, has rightly invited convictions and sentences against the appellant/accused and therefore, the convictions and sentences passed by the trial Court are not liable to be set aside. 12. For considering the divergent submissions made on either side, the Court has to meticulously analyze the evidence given by P.Ws. 1 to 3 and 8. 13. In the first charge it has been specifically mentioned that on the date of occurrence, at about 5.00 O'clock, in connection with painting work, the accused has given two fake notes of Rs. 100/- to P.W.8 and P.W.8 has tried to utilize the same in the tea shop of P.W.1. 14. The specific evidence given by P.W.8, in chief examination, is that he received Rs. 200/- from the accused only in connection with his painting work. But, during the course of cross-examination, he has clearly admitted to the effect that on the date of occurrence, he has suffered complete cecity in one eye and his another eye is in the stage of purblind. Further, he has candidly admitted that for the past 10 years, he is having such kind of defect in both eyes. Since P.W.8 has clearly admitted his deformity, especially his vision of eyes for the past 10 years, it is highly impossible on his part to receive Rs. 200/- (fake currency notes) from the accused in connection with painting work. 15. On the side of the prosecution, an auto driver, by name Rajan, has been examined as P.W.3 and his specific evidence is that he put his signature in the confession statement alleged to have been given by the accused. 200/- (fake currency notes) from the accused in connection with painting work. 15. On the side of the prosecution, an auto driver, by name Rajan, has been examined as P.W.3 and his specific evidence is that he put his signature in the confession statement alleged to have been given by the accused. But during the course of cross-examination, he has stated to the effect that he does not know what has been written in the confession statement, alleged to have been given by the accused. Therefore, P.W.3 is not at all a believable witness. But, as already been pointed out that even as per the evidence of P.W.8, he could not have received Rs. 200/- from the accused (fake currency notes) in connection with painting work. Likewise, P.W.3 has not completely supported the version of the prosecution. Since recovery of another fake currency note has not been proved, by way of eschewing the evidence given by P.W.3 and P.W.8, the Court cannot believe the evidence given by P.Ws. 1 and 2. Further, P.Ws. 1 and 2, at the most, have spoken to the effect that P.W.8 has attempted to utilize the alleged fake currency notes. Therefore, in the instant case, possession as well as circulation of fake currency notes have not been established on the side of the prosecution. 16. The trial Court, without considering the fact that the prosecution has not adduced worthy evidence, so as to substantiate the charges framed against the accused, has erroneously found him guilty under Sections 489-B and 489-C of the Indian Penal Code. In view of the discussion made earlier, this Court has found considerable force in the contention put forth on the side of the appellant/accused and altogether, the present criminal appeal is liable to be allowed. In fine, this criminal appeal is allowed. The convictions and sentences passed, in Sessions Case No. 55 of 2005, by the trial Court are set aside. The appellant/accused is acquitted. Bail bond, if any, executed by him shall stand cancelled. Fine amounts, if any, paid by him are ordered to be refunded forthwith.