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2020 DIGILAW 573 (KER)

Anthru @ Abdurahiman v. State of Kerala

2020-07-06

P.V.KUNHIKRISHNAN

body2020
JUDGMENT : The appellant in this appeal is the first accused in S.C No.251 of 2003, on the file of the Sessions Court, Kozhikode. He, along with another, was charge sheeted by the CBCID (CFS), Kozhikode, alleging offences punishable under Sections 489 (B) and (C) read with Section 34 IPC. 2. The prosecution case is that the accused were found in possession of two counterfeit notes of 100 rupee denomination, knowing or having reason to believe the same to be counterfeit notes and intending to use the same as genuine. The further case of the prosecution is that the first accused gave two of the counterfeit notes to PW6 as compensation when he met with an accident while working with the first accused as an arecanut climber. The case was investigated, and the final report was filed by the CBCID (CFS), Kozhikode. On appearance before the trial court, the trial court framed charge under Sections 489 (B) and 489 (C) read with Section 34 IPC. 3. To substantiate the case, the prosecution examined PW1 to PW12. Exts.P1 to P8 are the documents marked on the side of the prosecution. Exts.D1 and D2 were marked on the side of the defence. MO1 to MO3 are the counterfeit notes. 4. After going through the evidence and the documents, the trial court found that the second accused is not guilty of the charges, and he was acquitted under Section 235(1) of the Code of Criminal Procedure. The first accused was found guilty of the offences punishable under Sections 489(B) and 489(C) of the Indian Penal Code. The first accused was sentenced to undergo rigorous imprisonment for five years, each under Sections 489(B) and (C) of the Indian Penal Code. The court also ordered that the sentence shall run concurrently. Aggrieved by the conviction and sentence, the first accused filed the above appeal. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that even if the entire allegations are accepted, no offence under Sections 489(B) and (C) of the Indian Penal Code is attracted in this case. 7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove that the accused committed the offences under Sections 489(B) and (C) of the Indian Penal Code. 7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove that the accused committed the offences under Sections 489(B) and (C) of the Indian Penal Code. The learned Public Prosecutor also submitted that the trial court considered the entire evidence in a proper perspective, and there is nothing to interfere with the conviction and sentence imposed by the trial court. 8. The point for consideration is whether the accused committed the offences under Sections 489(B) and (C) of the Indian Penal Code. 9. Altogether 12 witnesses were examined in this case. PW5 is the Managing Partner of M/s. C.H.Assu and Brothers at Big Bazar, Kozhikode. He directed PW4 his employee to get a demand draft of Rs.31,083/-from the State Bank of India. He entrusted an amount of Rs.31,083/-and another Rs.500/-to PW4. PW4 went to the State Bank of India, Palayam Branch, for getting the demand draft. He had handed over the amount entrusted by PW5 to him to PW2. PW2, the bank's cashier, found that one of the notes received from PW4 is a suspected counterfeit note. He reported the same to PW1, the Branch Manager. After that, the note was examined based on the ultraviolet rays test, and it was found that the particular note is counterfeit. He identified the same as MO1. He recorded the statement of PW4 as Ext.P2. He reported the recovery of counterfeit currency as per Ext.P1 in Form B. The statement, along with the complaint in Form B signed by PW1 was sent to the Commissioner of Police, Kozhikode. The Commissioner forwarded the same to PW9, who registered Crime No.258 of 1994 under Section 489(C) Cr.P.C. Ext.P5 is the FIR. This is the evidence regarding the recovery of MO1. 10. PW6 is an arecanut plucker. He was working under the first accused. According to PW6, he sustained injuries while plucking arecanuts under the first accused. He was hospitalised for treatment. He requested the first accused for financial aid. But, the first accused refused to pay any amount. After that, there was a mediation talk in which PW7 also participated. Subsequently, the first accused gave an amount of Rs.250/-to PW6. It was two 100 rupee currency notes and one 50 rupee note. At the time of handing over the amount, PW7 was also present. But, the first accused refused to pay any amount. After that, there was a mediation talk in which PW7 also participated. Subsequently, the first accused gave an amount of Rs.250/-to PW6. It was two 100 rupee currency notes and one 50 rupee note. At the time of handing over the amount, PW7 was also present. PW6 handed over 50 rupee note to a tea shop owner and one 100 rupee note to PW8, who is a petty shop owner. PW8, on receiving the hundred rupee note, found that there is some suspicion about the note. He contacted his brother, who is conducting a medical shop adjacent to his shop. The medical shop owner also found suspicious about the note. PW6 informed that he has another hundred rupee note also with him. That was also found to be a suspected counterfeit note. Hence PW6 contacted PW7, the mediator. Both of them went to Perambra Police Station and met PW10, the then Sub Inspector of Police, Perambra Police Station. PW10 deposed that he seized two counterfeit notes produced by PW6 as per Ext.P4 seizure mahazar. He has not registered any case because there is an instruction from the CBCID (CFS) Unit that if notes with the serial number mentioned in MO2 and MO3 are received, it should be informed to that Unit for investigation. After that, PW11 and PW12, the Detective Inspectors, CBCID (CFS) Unit conducted the investigation. This is the evidence available in this case. 11. The trial court found that as far as MO1 is concerned, there is absolutely no connection to it with the accused. perused the evidence of PW1 to PW5. Even if the entire evidence of PW1 to PW5 is accepted, there is nothing to connect the first accused with MO1 counterfeit note. Therefore, I agree with the trial court's findings that there is absolutely no connection of MO1 with the first accused. 12. As far as MO2 and MO3 are concerned, there is evidence of PW6 to PW8. PW6 deposed that he received two 100 rupee notes and one 50 rupee note from the first accused. He also deposed that one of the 100 rupee note was handed over by him to PW8, the petty shop owner. 12. As far as MO2 and MO3 are concerned, there is evidence of PW6 to PW8. PW6 deposed that he received two 100 rupee notes and one 50 rupee note from the first accused. He also deposed that one of the 100 rupee note was handed over by him to PW8, the petty shop owner. PW8 deposed that when he received the note from the first accused, he found suspicious about the same, and he contacted his brother, who is conducting a medical store adjacent to his shop. After consultation with his brother, he informed PW6 that the two 100 rupee notes in his possession are counterfeit notes. Immediately PW6 contacted PW7, who is the mediator between PW6 and the first accused. PW6 and PW7 went to Perambra Police Station and produced MO2 and MO3 before PW10. This is the evidence regarding the recovery of MO2 and MO3. I have carefully perused the evidence of PW6 to PW8. There are indeed some contradictions in their evidence. But the fact that A1 handed over MO2 and MO3 to PW6 and PW6 handed over one of the note to PW8 is established. PW8 deposed that there was suspicion about the note, and he informed the same to PW6. I think there is nothing to disbelieve the evidence of PW6 to PW8 regarding the recovery of MO2 and MO3 counterfeit notes. 13. Therefore, in a nutshell, there is evidence to show that the first accused handed over MO2 and MO3 to PW6 in the presence of PW7. There is also evidence to show that one of the notes was handed over by PW6 to PW8. Thereafter, the notes were produced before PW10. I perfectly agree with the findings of the trial court that the evidence of PW6 to PW8 is believable, and there is nothing to find that MO2 and MO3 are not handed over by the first accused to PW6. 14. The point to be decided in this case is whether the first accused was in possession of the counterfeit notes knowing or having reason to believe that the same is forged or counterfeit notes and intended to use the same. The further question is whether the accused committed the offence under Section 489(B) IPC by using the counterfeit currency notes. The point to be decided in this case is whether the first accused was in possession of the counterfeit notes knowing or having reason to believe that the same is forged or counterfeit notes and intended to use the same. The further question is whether the accused committed the offence under Section 489(B) IPC by using the counterfeit currency notes. This Court in Muhammed Koya v. State of Kerala ( 2020 (3) KLT 441 ) considered the ingredients of Section 489(A) IPC and Section 489(B) IPC in detail. The relevant paragraph is extracted hereunder : “11. The question to be decided is whether Section 489Bisattractedinthiscase.Foreasyreference,it will be beneficial to extract Section 489B IPC. Section 489(B). Using as genuine, forged or counterfeit currency-notes or bank-notes: “Whoever sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also beliable to fine.” To attract the offence under Section 489(B), mere possession of counterfeit note is not enough. The Section says that, if the accused sells it, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note, or bank-note, knowing or having reason to believe the same to be forged or counterfeit alone is punishable as per the said Section. Therefore, there must be evidence to show that the accused sells to or buys, or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. In this case the prosecution has no case that, the accused sells counterfeit notes or buys, or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, except the case that, they were in possession of the counterfeit note. When there is no evidence to show that, the accused sells it or buys, or receives from any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, no offence under Section 489B IPC is made out. But in such cases, offence under Section 489C may attract. Section 489C says that whoever has in his possession any forged or counterfeit currency-note, or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, is punishable. The difference between 489B and 489C is that, as per Section 489B whoever sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, is punishable. On the other hand Section 489C says, whoever has in his possession any forged or counterfeit currency-note, or banknote, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, is punishable. In this case, except the fact that the original accused No.2 (Muhammed Koya) and the original accused No.5 (Prasad) were in possession of counterfeit notes knowing or having reason to believe the same to be counterfeit and knowing to use the same as genuine, there is no case to the prosecution that these accused sells it or buy, or receives from any other person or otherwise traffics in or uses as genuine any forged or counterfeit currency-note or bank-note knowing or having reason to believe the same to be forged or counterfeit. Therefore, according to me, in this case original accused No.2 (Muhammed Koya) and original accused No.5 (Prasad) are liable for the offence punishable under Section 489C IPC and not under Section 489B IPC. As far as original accused No.2 is concerned, MO1 counterfeit note is seized from his suitcase. Moreover, based on his statement, the search was conducted at Room No.210 of K.N.S. Lodge, Attingal, from where huge number of counterfeit notes are seized. As far as original accused No.2 is concerned, MO1 counterfeit note is seized from his suitcase. Moreover, based on his statement, the search was conducted at Room No.210 of K.N.S. Lodge, Attingal, from where huge number of counterfeit notes are seized. As far as original 5th accused is concerned, he is producing 10 bundles of counterfeit notes to the detecting officer. To attract Section 489C, in addition to the possession of counterfeit notes, there should be evidence to show that, possession with knowledge that it is counterfeit note or having reason to believe that the same to be counterfeit note or forged and intending to use the same as genuine or that it may be used as genuine, is necessary. “Reason to believe” is defined in Section 26 of the Indian Penal Code which reads as foll ows: “A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise”. The prosecution should prove also the “reason to believe” the things mentioned in Section 489C IPC to convict a person. But this proof need not be necessarily by direct evidence. The various circumstances leading to the seizure of forged notes and the manner in which the accused came into possession of these notes are important circumstances. In this case original accused No.2 gave statement which leads to the recovery of huge quantity of counterfeit notes from Attingal Lodge. From his suitcase MO1 is seized. Moreover, original accused No.5 handed over 10 bundles of counterfeit notes to PW5 and there is no explanation to him for possessing the same. Hence, these are strong circumstance against A2 and A6 to show that they are in possession of the counterfeit notes with knowledge that the same is counterfeit notes intending to use the same as genuine or it may be used as genuine. Hence, an offence under Section 489C is made out against A2and A6.” 15. The trial court found that the appellant had the knowledge and had reason to believe that MO2 and MO3 are counterfeit currency notes mainly for the reason that PW8, the petty shop owner, was able to identify the same. The learned trial Judge also perused MO2 and MO3 and found that they are counterfeit notes. The trial court found that the appellant had the knowledge and had reason to believe that MO2 and MO3 are counterfeit currency notes mainly for the reason that PW8, the petty shop owner, was able to identify the same. The learned trial Judge also perused MO2 and MO3 and found that they are counterfeit notes. According to the learned Sessions Judge, if the notes were fake notes on a mere look at them, it could be presumed that the accused had knowledge or reason to believe that they were counterfeit currency notes. 16. The trial court relied the judgment of the Apex Court in M.Mammutti v. State of Karnataka ( AIR 1979 SC 1705 ) and the judgment of this Court in Vijayan v. State of Kerala ( 2001(2) KLT 951 ). 17. There is no dispute that if the notes seized were of such a nature that a mere look at them would convince anybody that they were fake notes, it could be presumed that the accused had knowledge or reason to believe that they were counterfeit currency notes. The court relied the evidence of PW8 for this purpose. According to the trial court PW6 is a labourer who studied only upto 4th standard. PW8 is a petty shop owner, and hence, according to the learned Judge he is generally dealing with 100 rupees currency notes, and he will be able to identify the same. Therefore, relying the evidence of PW8, the court presumed that the 1st accused was having knowledge, or he had reason to believe that MO2 and MO3 are counterfeit currency notes. I cannot agree with this finding of the trial court. First of all, if PW8 is believable, then PW5 also has to be believed. PW5 is the Managing Partner of M/s.C.H.Assu and Brothers, which is a firm working in Big Bazar, Kozhikode. He was not able to identify that MO1 is a fake note. He entrusted MO1 and other notes to PW4 his employee. PW4 was not able to identify the same as fake notes. When PW4 produced the fake note before the bank, there was suspicion about the note to PW2 cashier, and he reported the same to PW1. After that, the Manager of the State Bank of India, Palayam Branch found that it is a counterfeit notes by examining the same on ultra violet rays test. When PW4 produced the fake note before the bank, there was suspicion about the note to PW2 cashier, and he reported the same to PW1. After that, the Manager of the State Bank of India, Palayam Branch found that it is a counterfeit notes by examining the same on ultra violet rays test. If MO1 is of such a nature that a mere look at them would convince anybody that they were fake notes, PW1 and PW2 need not go for an ultraviolet rays test. Moreover, PW5 is the Managing Partner of a firm working in Big Bazar, Kozhikode. He was not able to identify MO1. The admitted prosecution case is that MO1 to MO3 is of the same nature and with the same serial number. If PW4 and PW5 were not able to identify the same as a fake note by a mere look, it is difficult to accept the findings of the trial court that since PW8 a petty shop owner identified the same as a fake note, it can be presumed that the 1st accused had knowledge that MO2 and MO3 are fake notes. It is an admitted case that only two 100 rupee notes were handed over by the 1st accused to PW6. The prosecution has no case that any other notes are seized from the possession of the 1st accused. There is no evidence that the prosecution conducted any search in the house of the 1st accused and found out any other counterfeit notes from the house of the 1st accused. PW11 and PW12 also deposed that they were not able to found the source of MO2 and MO3. Therefore, simply because a person was found in possession of two 100 rupee notes, which is subsequently found as counterfeit notes, there is no presumption that he is in possession of the same with the knowledge that the same is a counterfeit note. The court has to consider the circumstances available in each case. Each case has to be considered based on the facts in each case. The Apex Court in M.Mammutti's case (supra) observed like this: “The appellant has been convicted in this appeal under Sections 489-B and 489C and has been sentenced to RI for six months respectively and fine of Rs.500. The sentences have been directed to run concurrently. Each case has to be considered based on the facts in each case. The Apex Court in M.Mammutti's case (supra) observed like this: “The appellant has been convicted in this appeal under Sections 489-B and 489C and has been sentenced to RI for six months respectively and fine of Rs.500. The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupees note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub-Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under S.342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs.390. These currency notes have been given to him by the purchaser. He also said that he did not know that the currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature of description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under S.342 Cr.P.C. The High Court has affirmed the judgment of the learned Sessions Judge on the ground that in his statement under S.342 made before the committing court the accused has made a statement different from that made in the Sessions Court and therefore the appellant has reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the Committing Court in Ext.P13 which appears at p.154 of the paper book, the appellant has struck to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs.390 in two rupee notes. We are not able to find any inconsistency between the answer given by the accused in his statement under S.342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr.Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him.'' (Emphasis supplied) 18. Therefore, it is a settled position that if there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was counterfeit notes, there cannot be any conviction under section 489 B or 489 C of IPC. In this case, also there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit notes. Therefore, based on the Apex Court judgment also, it can be found that there is no knowledge to the appellant that MO2 and MO3 are counterfeit notes when he handed over the same to PW6. Same point was considered by this Court in Gafoor v. State of Kerala (1987(2)KLT 730). In this judgment, this court held that mere possession or use of counterfeit currency notes is not punishable. This court found that the accused must have knowledge or reason to believe that the notes were counterfeit or forged. Same point was considered by this Court in Gafoor v. State of Kerala (1987(2)KLT 730). In this judgment, this court held that mere possession or use of counterfeit currency notes is not punishable. This court found that the accused must have knowledge or reason to believe that the notes were counterfeit or forged. The same view was taken by this Court in Abdul Rahiman v. State of Kerala (2014 KHC 773) and in Sukumaran P.O @ Kunhukunhu v. SI of Police, Ambalavayal and another ( 2016(4) KHC 660 ). In the light of the above authoritative judgments of the Apex Court and this Court, it is clear that the mere possession of a counterfeit note without the knowledge or reason to believe that the currency note or bank note was forged or counterfeit and intending to use the same as genuine, there cannot be a conviction under Section 489B or 489C of Cr.P.C. 19. Moreover, as per Section 313 of Cr.P.C, in every inquiry or trial, any circumstances appearing in the evidence against an accused should be put to him for enabling him to explain the same. In this case, the trial court relied upon the evidence of PW8 and found that he is a petty shop owner, and he will be able to identify MO2 and MO3 as counterfeit notes. The court also perused MO2 and MO3 and found that it is possible to distinguish the same from the real currency notes and that it did not require any expert opinion. According to the trial court, since the 1st accused is doing business in aracanut gardens on lease and for that purpose employed PW6, it can be presumed that there is reason to believe that the 1st accused is a person who used to deal with 100 rupee currency notes generally. In such a situation, according to the trial court, the reasonable inference is that the first accused knew or at least have reason to believe that MO2 and MO3 are counterfeit currency notes. Whether such an inference can be the basis of conviction without putting the same to the accused under Section 313 CrP.C is the question. The Apex Court in M.Mammutti's case (supra) clearly stated that, if any question regarding these circumstances is not put to the accused under Section 342 Cr.P.C (the present Section 313 Cr.P.C) that is fatal to the prosecution. The Apex Court in M.Mammutti's case (supra) clearly stated that, if any question regarding these circumstances is not put to the accused under Section 342 Cr.P.C (the present Section 313 Cr.P.C) that is fatal to the prosecution. Similarly, in Umashanker v. State of Chhattisgarh ( AIR 2001 SC 3074 ), the Apex Court observed that if any specific question about the currency note being fake or counterfeit was not put to accused in examination under Section 313 Cr.P.C, that is fatal to the prosecution. This court considered the importance of examining the accused under Section 313 Cr.P.C and the importance of the relevant questions to be put to the accused in Crl.A No.856/2005. The relevant portion of the judgment is extracted hereunder: “28. In addition to this, another important aspect is that the compliance of Section 42(2) of the NDPS Act is not put to the accused under Section 313 Cr.P.C. I perused the Section 313 Cr.P.C. statement of the accused. If the incriminating materials are not brought to the notice of the accused while examining them under Section 313 Cr.P.C., the court cannot use that part of the evidence to convict an accused. The Apex Court in Inspector of Customs, Akhnoor, Jammu and Kashmir v. Yashpal and another (2009) 4 SCC 769 considered this point. Paragraph 13,16 and 17 of the above said judgment is extracted herein below: “13. It is to be noted that the High Court did not accept the stand relating to noncompliance with Section 41(2) of the Act. It only interfered on the ground that the relevant incriminating materials were not put to the accused when they were being examined. 16. It is to be noted that in the instant case there was no reference to any of the incriminating materials. If the foundation of the prosecution case was the alleged confession before the Customs Authorities, that material was not brought to the notice of the accused persons. 17. Above being the position, there is no infirmity in the impugned judgment to warrant interference. The appeal is dismissed.” 29. When the compliance of Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 313 Cr.P.C., the same cannot be relied by the court to convict an accused.” 20. Above being the position, there is no infirmity in the impugned judgment to warrant interference. The appeal is dismissed.” 29. When the compliance of Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 313 Cr.P.C., the same cannot be relied by the court to convict an accused.” 20. In the light of the above judgments, it is clear that all the circumstances against the accused should be put to the accused under Section 313 Cr.P.C enabling the accused to explain such circumstances. I have perused the 313 statement of the accused in this case. No question regarding the knowledge of the accused about the counterfeit notes, when the same was in his possession, was put to the accused under Section 313 Cr.P.C. On that ground also, the accused is entitled to the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant based on the judgment dated 6.7.2005 in S.C.No.251/2003 of the Sessions Court, Kozhikode is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is cancelled.