Ansarulhaq vs State of Karnataka

Rathnakala, J.—This appeal is filed assailing the judgment of the Sessions Court in convicting the appellants herein in respect of the offence punishable under Sections 489B, 489C and 420 of I.P.C.

Briefly stated, the respondent-police charge sheeted the accused Nos. 1 to 4 for the offences punishable under Sections 489B, 489C and 420 read with Section 34 of IPC. Since the accused Nos. 3 and 4 were absconding, their case was split up and the case of accused Nos. 1 and 2 was sent for trial. Accused No. 1/appellant was in judicial custody. The trial Court framed charge against the appellant and co-accused, accused pleaded not guilty; prosecution examined 19 witnesses as PWs-1 to 19 and marked documents at Exs. P-1 to P-22 and material objects at Mos. No. 1 to 131. The statement of the accused under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating circumstances appearing in the statements of the witnesses. They had no rebuttal evidence. After giving audience to both, the Court below has written the judgment of conviction.

Learned counsel for the appellant submits that the appreciation of evidence by the Court below was erroneous without giving consideration to the favourable circumstance appearing in the case of the prosecution witnesses. The evidence was insufficient to convict the appellant for the alleged offences. Both the panch witnesses to the seizure mahazar have turned hostile.

Both the panch witnesses to the seizure mahazar have turned hostile. The whisky bottle which is said to have purchased by the appellant from P.W.6, by producing the fake currency notes is not seized. Independent witnesses are not examined to demonstrate that the appellant was staying in the Laxmi Nivas Lodge. The Court below has not framed proper charges. The number of fake currency notes said to have seized under mahazar was not mentioned in the charge. He is in custody since from 23.08.2010.

The Apex Court in the case of M. Mammutti Vs. State of Karnataka, on noticing that appellant was in possession of only one counterfeit currency note, which he had received for selling certain goods held that there was no evidence to show that the appellant had knowledge or reason to believe that the currency notes were counterfeit and no such evidence was let in by the prosecution to prove the nature of notes and set aside the judgment of conviction. In another judgment in the case of Umashanker Vs. State of Chhattisgarh, , the accused was acquitted by holding that no material was brought on record to show that the accused had requisite mens rea in holding fake currency notes. This Court in the judgement Mahendrasingh Khetsing Rao Vs. The State of Karnataka, represented by Sub-Urban Police Station, Hubli, acquitted the accused from the offence punishable under Section 489B of I.P.C. that the prosecution did not discharge the burden of establishing mam ingredient of Section 489B of I.P.C. i.e. the knowledge and the belief of the accused in respect of the currency notes that it is a fake note, which is a condition precedent to prove his culpability. The Division Bench of this Court in State Vs. M.V. Srinivasa, , has set aside the conviction since the expert, who had given his report that the seized currency notes are fake notes was not examined. It was further held in the said judgment to sustain the conviction under Section 489B and 489C of I.P.C. mere possession of counterfeit currency notes was not enough, but it must be established that the accused knew that the notes to be forged or reason to believe that he had intended to use them is genuine. The prosecution since did not discharge its onus by proving the circumstances which could lead to an inference that the accused had such knowledge and intention, the conviction was set aside.

Yet in another case this Court in the judgment Crl.A. 929/2004 Inthiyas alias Inthiyas Ahmed Vs. State of Karnataka, of evidence i.e., the notes were not subjected to chemical or electronic test to establish that they were fake or duplicate, set aside conviction. Under the circumstances, the Court below erred in not granting benefit of doubt to the accused. In the light of the above, the appellant may be acquitted of the charges.

In reply, the learned High Court Government Pleader supports the case of the Court below.

In the light of the above, the following point arises for consideration:

"Whether the conviction drawn by the Court below is on the foundation of insufficient evidence?" 9. The allegation of prosecution is that, on 23.08.2011 at about 4.45 p.m. the appellant/accused has passed on counterfeit notes of Rs. 1,000/- denomination to C.W.1 to Shakti Bar and Restaurant under the guise of purchasing 180 ml of whisky bottle and P.W.6 on suspecting that it is a counterfeit note informed the matter to the police. The police arrived at the pot, conducted spot mahazar and seized currency notes, which was intended to be passed over to P.W.6, received a typed complaint from him: body of accused No. 1 was searched, seized counterfeit notes and thereafter searched the room of the Lodge, where the accused were staying and seized 53 counterfeit notes of Rs. 1,000/- denomination after investigation charge sheet was filed.

Initially the case of the prosecution was the accused Nos. 1 and 2, who were sent for trial were trafficking counterfeit currency notes: at the instance of the accused No. 1/appellant herein from the Lodge, where he was boarding, 76 counterfeit currency notes of Rs. 1,000/- denomination were seized under a mahazar. Since no incriminating evidence was available against accused No. 2 he is acquitted of the charges.

During the trial the prosecution examined panch witnesses to the seizure mahazar as P.Ws.1 and 2, but both of them turned hostile to the prosecution case. According to the prosecution, Ex. P-1 is conducted at the shop of the complainant, where the accused passed on counterfeit currency note of Rs. 1,000/- denomination to its owner for purchasing a whisky bottle. Ex. P-2 is the mahazar under which a counterfeit currency note of Rs. 1,000/- denomination was recovered on his body search. P.W.3 is the Manager of Laxmi Nivas Lodge in which the accused persons were boarding. Though he was cited as a witness from whose possession the register maintained by the Lodge in respect of the customers: he turned partially hostile to the prosecution case. However, he identified the counterfeit currency notes seized from Room No. 53 in which the accused persons were boarding. P.W.4 is the another Manager of the Lodge in whose duty hours the accused had taken the room on rent on 02.08.2010. P.W.5 is the owner of the Laxmi Nivas Lodge, who supported the case of prosecution. P.W.6 is the complainant, who is the Manager of Shakti Bar and Restaurant. As per his evidence on 23.08.2010 while he was in the cash counter, the accused No. 1 purchased one whisky bottle and paid a fake currency note of denominating Rs. 1,000/- denomination. On examination, said currency note appeared to be fake. He took the accused to the police station and produced the currency note and lodged the complaint and in his presence said currency note was seized under the mahazar. P.W.7 is the brother of P.W.6, who works as the Manager of the said Bar and Restaurant. He has identified the accused. P.W.8 is the owner of a sweet stall, situated next to Shakti Bar and Restaurant. He testified to the effect on 23.08.2010 during the evening hours the accused No. 1 purchased sweets and paid one currency note of Rs. 1,000/- denomination. Since he had no change for the amount, he returned the currency note and took back the sweets. Thereafter he heard galata between the accused and the owners of the Bar and Restaurant for paying a fake currency note. P.Ws.14, 15 and 16 are the police officials, who have contributed for the investigation. P.W.17 is the Scientific Officer of FSL, Bangalore. He has examined 85 currency notes of denomination of Rs. 1,000/- each and has given report as per Ex. P-19 that the currency notes examined are fake counterfeit currency notes. The authenticity of his examination or his report could not be shaken during his cross-examination. P.W.18 is the PSI of respondent police station. During the course of further investigation went to West Bengal, arrested accused No. 2 and on completion of investigation filed charge sheet to this Court. P.W.19 is the then P.S.I. of respondent police station, who received the complaint, registered the case, submitted FIR to the Court, seized the currency note of Rs. 1,000/- denomination produced by the complainant under a mahazar Ex. P-2, on body search of accused seized 1 counterfeit currency notes with other articles under the mahazar Ex. P-3, recorded the voluntary statement of accused as per Ex. P-22, wherein he undertook to produce the counterfeit currency notes and took the police and panchs to Laxmi Nivas Lodge, whereby 78 counterfeit currency notes, two mobile sets were seized from Room No. 53 of the Lodge, thereafter recorded the statements of witnesses and conducted spot mahazar at Shakti Bar and Restaurant incorporated seized articles in the PF Form, produced the accused before the Court.

The penal provisions under which the accused is convicted reads thus:

"420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

489B. 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 be liable to fine.

489C. Possession of forged or counterfeit currency-notes or bank-notes - 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, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

As such to prove an offence under Section 420 of I.P.C., there must be an element of dishonest inducement by the accused to the victim and the deceived due to such inducement delivers his property. In the case on hand before the transaction between the accused and the complainant could be concluded, the complainant got alerted and has lodged the complaint. So the complainant not having been deceived and was yet to deliver the property that is whisky bottle, the penal provision of Section 420 of I.P.C. is not attracted.

The prosecution by the evidence of complamant/P.W.6, his brother/P.W.7 and the neighbourer/P.W.8 has proved beyond doubt that on 23.08.2010 the accused advanced a fake currency note of Rs. 1,000/- to the complainant to purchase a whisky bottle. By the scientific evidence of P.W.17 it is established that the 78 currency notes of Rs. 1,000/- denomination each are counterfeit. The authenticity or the veracity of the scientific report Ex. P-19 is not dislodged during the evidence of P.W.1 7. The spot mahazar Ex. P-1 was conducted at the shop of complainant, the recovery mahazar during the body search of complainant, whereby one currency note of Rs. 1,000/- denomination was recovered and the recovery mahazar held at Laxmi Nivas Lodge Ex. P-3 are proved by the evidence of P.W.19 the then P.S.I. of respondent police. During his cross-examination there was nothing to dispute the integrity of the mahazars conducted by him. Though the panch witness have turned hostile the mahazars conducted during the course of investigation have the support of favourable presumption under Section 114(e) of the Evidence Act. The fact that as on the date of the mahazar that is on 23.08.2010 room No. 53 of Laxmi Nivas Lodge was in the occupation of accused is established by the evidence of owner and Managers of the Lodge. These witnesses have identified the accused. In that view of the matter, it can be safely inferred that the accused attempted to pass on the counterfeit currency note and he was found in possession of 76 currency notes in the room which he had taken on rent.

Then comes the question of conscious possession of the counterfeit notes. Several authorities relied for the accused are of no avail for him, in view of the characteristic facts and circumstances of this case. The soul of offence under Section 489B and 489C is, ''knowing or having reason to believe the same to be forged or counterfeit:'' Though it is argued that there is no positive evidence from the prosecution side attracting the mens rea on the part of the accused in possessing or trafficking the counterfeit note, it does not appeal to the common prudence that the prosecution can lay a mind map of an offender with tangible evidence. The mens rea or the conscious possession can only be inferred only on the basis of the facts which are alleged and proved by the prosecution. The trial Court on the tone of cross-examination and also on the material available on record has observed that if he were a coolie as suggested, he would not have been able to hire a room in the lodge. He is a student, he has not shown any valid reason for having come over from West Bengal to Hubli and staying in a Lodge and during his 313 Cr.P.C. statement, he has not offered any explanation about the innocence possession of counterfeit notes. The above inference drawn by the Court below cannot be found fault with. Obviously the accused is from West Bengal and not familiar with either Court language or the local language. He has answered the 313 Cr.P.C. statement in Hindi language. It is not his case that during his 313 Cr.P.C. statement he was not posed with specific suggestion of conscious possession of the counterfeit currency notes. Even before this Court he has no grievance about his 313 Cr.P.C. examination. Once it is established that he was in possession of 78 counterfeit currency notes, the onus shifts to him under Section 106 of Evidence Act to explain the said possession which is in his exclusive knowledge. Having not explained either by way of a defence statement or defence evidence, it is inevitable to endorse the finding of conviction recorded by the Court below for the offences punishable under Sections 489B and 489C of I.P.C. The Apex Court in Ponnusamy v. State reported in 1997 Supreme Court Cases (Cri) 217, wherein the accused was convicted on the counts of 489B and 489C of I.P.C. and he had no explanation as to where from he got the notes held, ''silence on the part of the appellant was a telling circumstance which would weight against him in the consideration of prosecution evidence, thereby the conviction and sentence recorded by the lower Courts were not interfered.''

In the light of the above discussion, I hold that the judgment of conviction drawn by the Court below is proper and well considered. However, as regards the quantum of punishment is concerned, as on the date of the offence he was a young person of 21 years. The genesis of the offence is attributed to the co-accused Nos. 3 and 4, who are absconding. He has spent most valuable part of his life i.e., four years eight months in the jail. Having regard to the nature of the allegation in my considered opinion the sentence of rigorous imprisonment for seven years and fine of Rs. 25,000/- was disproportionate and excessive and same requires to be altered by reducing the sentence for a simple imprisonment of five years with a fine of Rs. 10,000/-. In the event of failure to pay the fine amount, he has to undergo simple imprisonment for a period of three months and that would meet the ends of justice.

Accordingly, the appeal is allowed in part. That part of the impugned judgment whereby the appellant is found guilty for the offence punishable under Section 420 of I.P.C. and sentenced for imprisonment of two years and with fine of Rs. 10,000/- is set aside, he is acquitted of the charge of offence under Section 420 of I.P.C.

(i) The finding of conviction in respect of the offence under Section 489B and 489Cis confirmed.

(ii) The sentence imposed in respect of the offence under Section 489B of I.P.C. whereby he is ordered to undergo rigorous imprisonment for seven years and to pay fine of Rs. 25,000/- is reduced to simple imprisonment of five years with a fine of Rs. 10,000/-. In the event of failure to pay the fine amount, he has to undergo further simple imprisonment for a period of three months. The judgment of conviction and sentence in respect of the offence under Section 489C of I.P.C. is confirmed. Both sentences shall run concurrently."