Abdul Kalam vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned State Public Prosecutor.

The facts of the case are as follows:-

The complainant one Rudrappa, a Head Constable of Mangalore South Police Station has stated that he was on duty on 15.12.1999, at Service bus stand, Mangalore and he heard a loud altercation and on investigation, he found that a tender coconut vendor, one Shankar was arguing with another, who is said to have consumed a tender coconut and had given a currency note in the denomination of Rs. 500/- and since Shankar had told that he did not have change and that he should be paid the exact amount and since the customer was trying to go out without paying for the tender coconut, there was an altercation and added to this, Shankar had also pointed out that the currency note in the denomination Rs. 500/- was apparently a fake note and had hence taken a serious offence at the customer having trying to go away without paying the price. In this background, the complainant, namely, the head constable, Rudrappa had taken Khasim A.K., son of Abbas, along with Shankar to the Police Station and on receipt of the complaint, a first information report was drawn against the accused no. 1 and a seizure mahazar was also drawn alleging that the currency note in the denomination of Rs. 500/- and another currency note in the denomination of Rs. 100/-, identified by the numbers borne on the notes that were seized, were fake and they were marked as Material Objects 1 and 2. And on the voluntary statement of accused no. 1, that he would also be in a position to point out the person who had given him the fake currency notes, the Police took him to the Gandhi Park and there he had identified accused no. 2, who was also apprehended and it was found that he was in possession of 97 currency notes in the denomination of Rs. 500/- and the same were seized. And on examining the currency notes, there were eight genuine currency notes in the denomination of Rs. 500/- and two genuine currency notes in the denomination of Rs. 100/- and the rest were all fake currency notes, which were duly marked and identified as Material objects. On the voluntary statement of accused no. 2, the Police had raided the hotel room of Rajadhani Hotel and apprehend caused no. 4 and another accused Ayub and had inquired accused no. 4 and Ayub and seized 50 Indian currency notes in the denomination of Rs. 500/- from accused no. 4 and 60 fake currency notes in the denomination of Rs. 500/- Further, on 17.12.1999, 92 fake Indian currency notes in the denomination of Rs. 500/- have also been seized from accused no. 5, one Aziz.

Accused Nos. 1 to 4 had been produced before the Magistrate on 15.12.1999 and accused no. 5 was produced on 17.12.199 and they were remanded to judicial custody. After completion of the investigation, a charge sheet was filed against accused nos. 1 to 5 and the Magistrate had taken cognizance, registered a criminal case and the charge sheet was furnished to the accused. Since accused nos. 3 and 5 absconded, the case was split up as against accused nos. 1, 2 and 4, and the case was committed to the Sessions court, since the offences alleged were exclusively triable by the Court of Sessions. The Court of Sessions thereafter, had proceeded to frame charges against accused nos. 1, 2 and 4 for the offence punishable under Sections 489B and 489C of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity).

The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined PWs. 1 to 16 and marked several exhibits and material objects and after having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''CrPC, for brevity) and after having heard both sides, the court below had framed the following points for its consideration:

"1. Whether the prosecution proved beyond reasonable doubt that the seized note of denomination of Rs. 500/- No. 4 GC 300586 and denomination of Rs. 100/- No. 3LD 046894 (M.O. No. 1 and 2) seized from the accused No. 1 Khasim A.K. seized in Mangalore South Police Station as per mahazar Ex. P-2 on 15.12.1999 from 11-00 AM to 11-30 AM are counterfeit Indian Currency notes?

Whether the prosecution proved beyond reasonable doubt that the seized 32 notes of denomination of Rs. 500/- No. FE 759090, 35 notes of denomination of Rs. 500/- No. 8DQ 704518, 32 notes of denomination of Rs. 500/- No. 9BN 238649 (M.O. no. 6) seized from the accused No. 2 Abdul Kalam seized as per Ex. P-3 at Gandhi Park, Mangalore on 15.12.1999 at 3.00 PM are committed Indian currency note?

Whether prosecution proved beyond reasonable doubt that the seized 16 notes of denomination of Rs. 500/- No. 8 GA 674428, 11 notes of denomination of Rs. 500/- No. 8GA 674426 and 23 notes of denomination of Rs. 500 No. 8HD 315526 (M.O. No. 7) seized from Accused No. 4 C.H. Ammu seized as per Ex. P-4 at Room No. 108 of Hotel Rajadhani, Milagres Road, Mangalore on 15.12.1999 at 5.30 P.M. are counterfeit Indian Currency note?

Whether the prosecution beyond reasonable doubt proved that the accused No. 1 Khasim A.K. traffics in the fake currency notes of denomination of Rs. 500/- No. 4GC 300586 and denomination of Rs. 100 No. 3LD 046894 (M.O. No. 102) on 15.12.1999 at morning 10-AM at Service Bus Stand, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus committed offence punishable under Section 489-B of IPC?

Whether the prosecution beyond reasonable doubt proved that the accused No. 1 Khasim A.K. in possession of the fake currency notes of denomination of Rs. 500/- No. 4GC 300586 and denomination of Rs. 100 No. 3LD 046894 (M.O. No. 102) on 15.12.1999 at morning 10-AM at Service Bus Stand, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus committed offence punishable under Section 489-C of IPC?

Whether the prosecution beyond reasonable doubt proved that the accused No. 2 Abdul Kalam traffics in 30 fake Indian currency notes of denomination of Rs. 500/- No. FE 759090, 35 fake Indian currency notes of denomination of Rs. 500/- No. 8DQ 704518 and 32 fake Indian currency notes of denomination of Rs. 500/- No. 9BN 238649 (M.O. 6) on 15.12.1999 at 3.30 PM at a place called Gandhi Park, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus committed offence punishable under Section 489-B of IPC?

Whether the prosecution beyond reasonable doubt proved that the accused No. 2 Abdul Kalam in possession of 30 fake Indian currency notes of denomination of Rs. 500/- No. FE 759090, 35 fake Indian currency notes of denomination of Rs. 500/- No. 8DQ 704518 and 32 fake Indian currency notes of denomination of Rs. 500/- No. 9BN 238649 (M.O. 6) on 15.12.1999 at 3-30 PM at a placed called Gandhi Park, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus commuted offence punishable under Section 489-C of IPC?

Whether the prosecution proved beyond reasonable doubt that the accused No. 4 C.H. Ammu traffics in 16 notes of denomination of Rs. 500/- No. 8GA 674428, 11 notes of denomination of Rs. 500/- No. 8GA 674428 and 23 notes of denomination of Rs. 500/- No. HD 315526 (M.O. No. 7) on 15.12.1999 at 5-30 PM at a place called Room No. 108 of Hotel Rajadhani, Milagres road, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus committed offence punishable under Section 489-B of IPC?

Whether the prosecution proved beyond reasonable doubt that the accused No. 4 C.H. Ammu in possession of 16 notes of denomination of Rs. 500/- No. 8GA 674428, 11 notes of denomination or Rs. 500/- No. 8GA 674428 and 23 notes of denomination of Rs. 500/- No. HD 315526 (M.O. No. 7) on 15.12.1999 at 5-30 PM at a place called Room No. 108 of Hotel Rajadhani, Milagres road, Mangalore with having knowledge that the said currency notes are counterfeit notes and thus committed offence punishable under Section 489-C of IPC?"

The court below has answered points 1 to 3, 5, 7 and 9 in the affirmative and the other points in the negative and ultimately had convicted and sentenced the accused no. 1 for the offence punishable under Section 489C of the IPC and sentenced him to pay a fine of Rs. 5,000/- and in default, to undergo simple imprisonment for a period of three months. Accused no. 2 was found guilty of the offence punishable under Section 489C and was sentenced to undergo rigorous imprisonment for a period of five years and accused nos. 2 and 4 were liable to pay fine of Rs. 15,000/- each. It is that part of the conviction and sentence imposed on accused nos. 2 and 4 which is under challenge in the present appeal.

Heard the learned counsel for the appellants at length and the grounds urged are that the court below had not taken into account the material to prove the case as against the appellants beyond reasonable doubt and the entire evidence relied upon was being of the official witnesses and that the ingredients of the alleged offence were not made out and that the Forensic Science Laboratory Report and other reports did not support the case of the prosecution and the rank contradictions by the prosecution witnesses were clearly overlooked by the court below and therefore, the conviction and sentence have resulted in a miscarriage of justice and in this regard, the learned Counsel has taken this court through the actual finding and the evidence tendered in the above case.

The learned counsel would point out that insofar as accused no. 2 is concerned, he was taken into custody on the basis of an alleged voluntary statement of accused no. 1 and it was noticed that he was present in the Gandhi Park, Mangalore and the currency notes that were seized from his possession were 97 in number, of which several were found to be original and not fake currency notes. The accused has been acquitted of the offences punishable under Section 489B of the IPC, whereas he has been convicted of the offence punishable under Section 498C IPC. The mere possession of the currency notes by itself, would not indicate the guilt of the accused and that he has in come into possession of the same in the usual course and the same could not have been ruled out. Since his presence in the Gandhi Park was sought to be evidenced by relying upon the testimony of PW. 4, an independent witness is not available to the prosecution since the said witness had turned hostile and had not supported the case of the prosecution. Insofar as accused no. 4 is concerned, he is said to have been apprehended on a raid being conducted on a hotel room of Hotel Rajadhani and the persons present there, was sought to be evidenced by the evidence of the manager of the hotel, PW. 7 and a room boy. Those witnesses also having turned hostile, the case of the prosecution rested on the evidence of the official witnesses and therefore the same could not have been rightly accepted in the face of the independent witnesses not having supported the case of the prosecution. Hence, the learned Counsel would submit that the accused be acquitted in the absence of any corroborating independent evidence to support the case of the prosecution.

While the learned State Public Prosecutor would point out that it is not the case of the appellants that the Police have harboured any kind of mala fides against the accused in seeking to frame them in a particular case. There is nothing to doubt the veracity and sincerity of the official witnesses unless it is established that they were motivated by mala fides or other ill intention in bringing the accused to book. The development of the case in one accused leading to the apprehension of the other and in the absence of any explanation offered, as to the manner in which the accused had come into possession of a large number of fake currency notes by each of them, the case of the prosecution cannot be brushed aside, merely because the independent witnesses have not stood by their initial statements as regards the facts to which they had testified. That by itself does not render the case of the prosecution to be a false case and though it would be diluted to an extent, it is sufficient to bring home charges against the accused and the accused having been in possession of a large number of fake currency notes and this is the vein, in which the court below has proceeded to address the evidence and to arrive at its findings. '' Though the court has taken a strict view of the prosecution not having been in a position to establish that the accused were all engaged in circulating the currency notes, it could not be denied that they were actually found in possession of the currency notes and the punishment is restricted to the offence under Section 489C IPC, though they are absolved of allegations of the offence under Section 489B and hence would submit that though the State ought to have filed an appeal insofar as the acquittal of the accused for the offence under section 489B IPC, the present appeal however, ought not to be allowed in the face of the categorical findings of the court below and on the evidence of the official witnesses alone, it cannot be dismissed as being untenable or unacceptable, in the absence of any doubt being thrown up as to the veracity of the said witnesses.

Given the facts and circumstances the manner in which the accused have been taken into custody does not give rise to any suspicion of a false case having been foisted against the accused There is no indication of any such mala fides on the part of the Police and the accused. A large number of fake currency notes that have been seized from each of the accused have not been explained by the respective accused. It would not lie in their mouth to contend that no case is made out by the prosecution since the independent witnesses had not supported the case of the prosecution. As rightly pointed out by the learned State Public Prosecutor, notwithstanding that the independent witnesses had not supported the case of the prosecution, there is no reason to disbelieve or doubt the veracity of the official witnesses and there is no hard and fast rule that the evidence of the official witnesses alone would not be sufficient to bring home the charges in a criminal case. There is no material made available to show that the Police had an axe to grind against the accused and therefore, had foisted a false case against them. In the absence of any such circumstance, it cannot be said that the court below ought to have acquitted the accused. The further circumstance that though it is claimed that there was no relationship between any of the accused, the present appellants having chosen to approach this court together would indicate that they were indeed comrades in crime, on the face of it. Therefore, the court below having convicted the accused and having imposed a nominal punishment, cannot be said to be unjust or unlawful. Therefore, the appeal is dismissed. The bail bonds furnished by the accused stand cancelled. The appellants namely, accused nos. 2 and 4 are hereby directed to surrender before the trial court within an outer limit of one week, failing which a non-bailable warrant shall be issued by the trial court.