A.P.Chandran vs CB CID, Wayanad

C.S. Sudha, J.

These appeals under Section 374(2) Cr.P.C. have been filed by the first accused (A1) and the third accused (A3) in S.C.No.51/2002 on the file of the Court of Session, Kalpetta, challenging the conviction entered and sentence passed against them for the offences punishable under Sections 489B and 489C IPC.

The prosecution case as stated in the final report/charge sheet is as follows: - A7(Arumugham Pillai), during the period from March to May 1994, counterfeited Indian currency notes of the denomination of ₹500/-using machineries and instruments in his possession kept in room no.20, Thilakar, 2nd Street, Puthoor, Seeranaickenpalayam, Coimbatore, which room he had taken on rent for his residence. A7 sold the counterfeit currency notes to A3(A.P. Chandran), who purchased the same knowing it to be counterfeit notes, kept it in his possession and then sold it to A2 (E.K.Joseph). A2, purchased the currency notes from A3 knowing the same to be counterfeit notes, kept it in his possession and sold it to A1(N.V.Joseph), A4 (Aakkal Abdulla), A5(Moideen) and A6 (Raghavan). A1 to A7, knowing that the currency notes were counterfeit, kept it in their possession and conducted transactions with the same. Thus, A7 has committed the offences punishable under Sections 489A, 489B, 489C and 489D and A1 to A6, the offences punishable under Sections 489B and 489C IPC.

On the basis of the information received from the Currency Officer, Reserve Bank of India, Thiruvananthapuram, the then Administrative Detective Inspector, CBCID, Thiruvananthapuram, namely, PW30, registered the crime, that is, CBCID Crime 97/CR/94. Investigation was conducted by PW22, PW23, PW31, PW32, CW34, the respective Detective Inspectors attached to CBCID (C.F.S.), Kozhikode, during the relevant period as well as PW24, a Head Constable attached to the same wing. Thereafter PW25, the then Dy.S.P., Narcotic and Economics Offices wing, Kozhikode, completed the investigation and submitted the final report/charge sheet alleging commission of the offences punishable under the aforementioned Sections before the jurisdictional Magistrate, who after complying with the statutory formalities, committed the case against A1 to A4 and A6 to the Court of Session, Kalpetta. A5 (Moideen) and A7 (Arumugham Pillai) died during the pendency of the committal proceedings and hence the case against them stood abated.

The case on being committed, was taken on file by the Court of Session, as S.C.No.51/2002. On appearance of A1 to A4 and A6 before the Court, they were furnished with copies of all the prosecution records. On 22/08/2005, the Court framed a charge for the offences punishable under Sections 489B and 489C IPC, which was read over and explained to the accused, to which they pleaded not guilty. Original A6 (Raghavan) is seen arrayed as A5 in the Court charge. As charge against A5 (Moideen) and A7 (Arumugham Pillai) stood abated, it was only the remaining five accused, that is, A1 to A4 and A6 who stood trial.

The prosecution examined PWs.1 to 32 and marked Exts.P1 to P25 and also MO1 to MO12 series in support of their case. After the close of the prosecution evidence, all the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. All the accused denied those circumstances and maintained their innocence.

As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused.

On a consideration of the oral and documentary evidence and after hearing both sides, the Sessions Court by the impugned judgment acquitted A2, A4 and A5 under Section 235(1) Cr.P.C. for the offences punishable under Sections 489B and 489C IPC. A1 has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹50,000/- and in default to undergo rigorous imprisonment for two years for the offence punishable under Section 489B IPC and to undergo rigorous imprisonment for three years for the offence punishable under Section 489C IPC. A3 has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹50,000/- and in default to under rigorous imprisonment for two years for the offence punishable under Section 489B IPC. The sentences of A1 has been directed to run concurrently. Set off has been allowed under Section 428 Cr.P.C. for the period the accused have undergone detention in the case.

On 11/08/2006 and on 30/08/2006, this Court ordered the suspension of the sentence against A3 and A1 respectively and both of them have been released on bail. In the appeal memorandum, it is alleged that the trial court without properly appreciating the facts, circumstances and evidence has wrongly convicted A1 and A3 in the case. The trial court failed to take note of the contradictions in the testimony of witnesses and has also relied on the confession of the accused, which is inadmissible in evidence. The recovery alleged to have been made is illegal and not as per the provisions of Section 27 of the Evidence Act. The necessary and essential ingredients of the offences alleged against the accused have not been established by the prosecution. The trial court erred in convicting the accused in the absence of any legal evidence and hence is liable to be interfered with, contend A1 and A3.

The only point that arises for consideration in these appeals is whether the conviction entered and sentence passed against A1 and A3 by the Sessions court is sustainable or not.

Heard Sri.T.G.Rajendran, the learned counsel for the appellant in Crl.A.No.1715/2006, Sri.Athul Babu, the learned counsel for the appellant in Crl.A.No.1575/2006 and Sri.Sanal P.Raj, the learned Public Prosecutor.

When the matter came up for hearing, it was submitted that A1 is dead and therefore the case against A1 stands abated. I disagree. The appeal by A1 is from a composite order of sentence combining substantive imprisonment with fine. By virtue of sub-section (2) to Section 394 Cr.P.C., the appeal on the death of the appellant/A1 would abate so far as the sentence of imprisonment is concerned. However, the provision makes it clear that all appeals under Chapter XXIX Cr.P.C. except an appeal from a sentence of fine, shall abate on the death of the appellant. Thus, the appeal filed by A1, an appeal against fine, cannot be treated as abated. [Ramesan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45]. It is true that no legal representative of A1 has come on record to prosecute the appeal. Even in their absence, it is the duty of this Court to look into the records of the case and dispose of the case on merits. [See Bani Singh v. State of U.P., 1996(2) KLT 424 (SC) and Ramesan (Supra)]. Hence with the assistance of the learned counsel appearing for A1, I proceed to dispose of the matter against A1 also on merits.

As the present appeals have been filed by A1 and A3 and as the other accused persons have been acquitted, I will only be considering the evidence relied on by the prosecution as against the present accused persons to find out if there is any infirmity in the findings of the trial court as alleged by the appellants-accused. PW1, the Manager, SBT, Mananthavaadi, deposed that he knows PW8 and that on 22/03/1994, PW8 had brought MO1currency note of the denomination of ₹500/- for getting change in the bank. PW8 had handed over the note to PW2, the cashier, who entertained doubts as to its authenticity. So, PW2 showed it to PW3 as well as PW4. All of them, entertained doubts about its genuineness and hence they showed the note to him. On seeing the note, he also had doubts about it and so he sent the currency note along with the statement of PW8 with his covering letter to the branch of the RBI in Thiruvananthapuram. From the said office, it was informed that the currency note is a counterfeit one. He was directed to send the statement of PW8 in the specified form. According to PW1, Ext.P1 is the statement of PW8, which he had forwarded to the office of the RBI at Thiruvananthapuram along with his Ext.P2 covering letter. PW1 identified MO1. PW1 deposed that he did not inform the matter to the police as the office of the RBI had done the same.

PW2, the cashier; PW3, the head cashier and PW4, the Assistant Manager of the aforesaid bank support the case testified by PW1. All of them identified MO1 note. PW3 admitted that he is an attestor to Ext.P3 recovery mahazar. However, he deposed that he had not seen PW1 handing Ext.P1 statement of PW8 and Ext.P2 covering letter of PW1 to the police.

PW5, an acquaintance of PW8, deposed that on a day in the year 1994, he had accompanied PW8 to the bank. PW5 supports the prosecution case that PW8 had handed over MO1 currency note to the bank for getting change. PW5 also deposed that he was present when the police had searched the house of PW8 and that nothing incriminating had been recovered from the house. He also admitted that he is an attestor to Ext.P4 search list.

PW6 and PW7, acquaintances of A1 deposed that they had seen the police searching the house of the latter and that they are attestors to Ext.P5 search list then prepared.

PW8 deposed that he is acquainted with A1, whom he had met at a bar named ‘Maanasa Saras’ at Mananthawadi. A1 had promised to get a visa for his brother, for which the former demanded an amount of ₹45,000/-, out of which ₹5,000/- was to be paid as advance. PW8 gave an amount of ₹5,000/- to A1. As promised, A1 did not get the visa for his brother. He met A1 a few times at Mananthawadi. A1 promised that after one month, the visa would be ready. Later on, A1 was not to be seen. When PW8 asked Mammookka, the person who had been present along with A1 when the promise for visa had been made, about the whereabouts of A1, he was told that A1 had gone to Bombay to process the visa. Thereafter he met A1 when he along with PW13 O.K.Ravi and PW20 Hari were at the Gandhi Park, Mananthawadi,. Though A1 tried to avoid him, he confronted A1 and again enquired the matter. A1 then gave him a ₹500/- note and promised to return the balance also. PW8 deposed that it was a note like MO1 that had been handed over to him by A1. He tried using the note in a pump, shop and a bar, but failed. He then went along with PW5, Babu, to the Mananthawadi branch of the SBT. The bank expressed doubts about the genuineness of the note and so refused to exchange the note. PW8 identified Ext.P1 statement. PW8 further deposed that when he again went to the bank after about 2 to 3 days, he was told that the note handed over by him was a counterfeit one. In the cross examination he deposed that there are no documents to evidence the visa transaction with A1; that the money for the visa had been taken by A1 and Mammath; that he had restrained Mammath when they failed to give the visa; that it was Mammath who had taken him to the house of A1; that it was not because MO1 note was damaged, he had gone to the bank to change it, but it was because it was not accepted (മ റ  ക ട തത കക ണ ബ ങ ല പ  യ ) and that it was he who had produced A1 before the police station, Mananthawady (A1 ക  മ  നവ ട  പ  ല സ  പ ഷ  ല ഞ ന   ട ച കക ണ പ  യ  ഹ ജര ക  കക ടകകയ യ രന ).

PW9 when examined deposed that he knows A1 Joseph. However, he denied having seen A1 handing over any object to the Police. He admitted his signature in Ext.P6 seizure mahazar, which signature according to him was put at the police station. PW9 is seen to have been declared hostile and questions put as put in the cross examination. He denied having given any statement to the police that he had seen A1 handing over notes to the police or that the notes had been handed over by A1 to the police from a brick kiln situated near the place where he was working. He further deposed that he knows to read and write and that nothing prevented him from reading the document signed by him. He denied the suggestion put to him by the prosecution that he is deposing falsehood after having received money from A1. He admitted that PW10 K.P.Baby was present along with him.

PW10 K.P.Baby, stated to be another attestor to Ext.P6 mahazar, when examined admitted his signature in the same. However, he also turned hostile and deposed that he had not seen A1 Joseph, handing over anything to the police. According to PW10, he had signed in Ext.P6 mahazar at the police Station. On the said day, he along with PW9 were carrying out works in a well in the property of one Varkey, which property is situated 300 meters away from the tharawad house of A1. The incident had taken place in the evening and that he went near the brick kiln at the request of the police. He denied having seen A1 handing over any packet taken from the brick kiln to the police. He admitted the presence of A1 along with the police on the said day. He also denied having seen the police seizing at the instance of A1, 86 currency notes of the denomination of ₹500/- and the newspaper that had been used to wrap the notes.

PW13 deposed that during the time of the incident, he was working as Junior Health Inspector, Primary Health Centre, Edavaka. He denied having any acquaintance with PW8 K.T.Thomas or A1 Joseph. He admitted to being acquainted with PW20 Haridas, a clerk in the PWD Department. According to him he was seeing A1 for the first time in the court. He denied having seen A1 handing over anything to PW8. However, he deposed that he had seen a scuffle. PW13 was declared hostile. On further questioning, he deposed that he had been questioned by the police, but he had not given any statement to the effect that he had seen A1 having handing over a currency note of denomination of ₹500/- to PW8. The portion of his 161 statement, which he denied having given to the police is seen marked as Ext.P10. He denied the suggestion put to him that he was deposing falsehood in order to help A1, his friend.

PW14, a resident of Seeranaickenpalayam, Coimbatore, deposed that he knows A7 Arumugham Pillai, who was a tenant of his father's residential building. He admitted that he was present when the police had come to the said house and prepared Ext.P11 mahazar, in which he and Vasudevan (PW28) are attestors. In the cross-examination he deposed that it was not on a blank paper that he had affixed his signature. He deposed that the contents of the paper in which he had affixed his signature was written in Malayalam and therefore he is not aware of the contents of the same. He denied the suggestion put by the defence that he had affixed his signature in the mahazar at the police station.

PW15, a resident of S.N.Palayam, Coimbatore, deposed that he owns four rooms bearing house number 20, 21 and 22 and that he had leased out house bearing no.20 to Arumugham Pillai(A7). The rent for the house was ₹200/-, for which ₹1000/- had been paid as advance. In the cross-examination he deposed that there are no documents to show that he had rented out the house to A7; that he had not given any rent receipt to A7 and that he had not shown the title deed of the building to the police, as the latter had not demanded the same.

PW16, another resident of Coimbatore and owner of ‘Mahavir Paper Supply Dealer’, Raj Street, Coimbatore deposed that he is a wholesale dealer in paper, paper boards, books, stationery etc. He admitted that a person by name Arumugham Pillai (A7) had been brought before him by the police and that the police had questioned him. He deposed that A7 had purchased 3 quires of butter paper, for which he had not issued any cash receipt as the purchase was for a small quantity. In the cross-examination he deposed that, several customers visit his shop and therefore he may not be able to identify each and every person who visit his shop; that butter paper is not ‘see through paper’; that the police had shown him sample papers and that he had shown his papers to the police; that he does not remember whether the police had noted down any details of the paper shown by him and that the police had not verified any bills or registers of his shop.

PW17, another resident of Raj Street, Coimbatore deposed that he is the Manager of Sri Vasavi Medicals, and that they deal in medicines, drugs and cosmetics. According to him, carbolic acid is an antiseptic lotion; that in 1994 one Arumugham Pillai had purchased a bottle of carbolic acid from his shop on the pretext that his cow was wounded; that he had asked the customer for the prescription, but no prescription was shown to him and that he does not remember whether any cash receipt had been issued by him for the purchase and that after about three months of the purchase, the said person was brought before him by the police. In the cross-examination he deposed that carbolic acid is liquified phenoil; that he cannot sell or give carbolic acid to anybody without a prescription; that he has to maintain a correct account of carbolic acid in his possession; that he had license to possess the same; that he had not maintained a stock register showing the stock and sale of carbolic acid; that he is unaware as to whether he is obliged to maintain a register as per law and that the police had not verified the license of his shop. He denied the suggestion put to him that he had not sold carbolic acid to any person.

PW20 Haridasan, deposed that during the year 1994, he was working as Clerk, Section Office, PWD (Roads), Kattikulam. He knows PW8 and Joseph(A1) through PW8. He had met A1 at the park at Mananthavady. On the said day, while he was in a conversation with PW8 and PW13, a person came by, whom PW8 called to their side. PW8 told him that the said person's name is Joseph (A1). PW8 and the said person had a conversation relating to some financial matters. Then Joseph (A1) handed over a ₹500/- rupee note to PW8, which was folded into four. He deposed that he does not remember the said person and that he cannot say whether the said person is before the court. In the cross examination, PW20 deposed that PW8 is his friend; and that he had gone to the police station as he was told by a police man that there was a possibility of PW8 being made an accused in the case; his intention was to talk to the S.I. and somehow see to it that PW8 was not made an accused; he did have a conversation with the S.I.; apart from that he had not been questioned by the police; that it is incorrect to say that PW8 had not called A1 (Joseph) to their side but had pursued A1 and apprehended him; that he had not seen any scuffle between PW8 and A1; that it was PW8 who told him that the said person is Joseph ; that it was when PW8 unfolded the note, they realised that it was a ₹500/-rupee note; that he does not remember whether the note handed over then was a new one. He denied the suggestion put to him that he had deposed that he had seen A1 handing over a ₹500/- rupee note to PW8 in order to save the latter from being implicated in this case.

PW21, the then S.I., Thottilpalam police station, has been examined to prove that he had rendered necessary assistance to PW32 in seizing MO5 series currency notes from the house of A2. According to PW21, it was A1 who had led them to the house of A2 and that the former had identified the latter.

PW23, when examined deposed that on 20/06/1996 while he was working as Detecting Inspector, C.B.C.I.D., Kozhikode, he had taken over the investigation of the case; that he had questioned PW20. In the cross examination, he deposed that he had questioned PW20 the second time as he was not satisfied with the statements given by PW20 in the earlier round of questioning. In the re-examination, he deposed that when he had questioned PW13, the latter had given Ext.P10 statement.

PW24, deposed that while he was working as Head Constable, C.B.C.I.D., Kozhikode, as per the directions of his superior officers, he had conducted investigation in this case. He had questioned PW15, PW18, PW19, CW26, CW27 and CW28 and recorded their statements. The material objects produced before the court were received by him and submitted for inspection at Nasik in Maharashtra and Devas in Madhya Pradesh. In the cross examination, he deposed that he had obtained receipt when the material objects had been handed over for inspection.

PW25, the Dy.SP, C.B.C.I.D., Kozhikode, deposed that on 04/10/1999 he had received a copy of the report relating to the notes of the denomination of ₹10/-. When the original of the report was attempted to be marked, the same was objected by the defence on the ground that it is not admissible either under Section 292 or 293 Cr.PC. Hence the report is seen marked as Ext.P16 subject to the objection raised. On 30/12/1999 he completed the investigation and submitted the charge sheet before the court. In the cross examination he denied the suggestion put to him that it was without understanding and comprehending the facts correctly, he had falsely and wrongly submitted the charge sheet.

PW27, a resident of Coimbatore, deposed that he had seen the police coming to the house of A7 (Arumugham Pillai). He admitted that he is an attestor to Ext.P17 seizure mahazar. He deposed that the police had seized currency notes and at the request of the police, he had affixed his signature in the mahazar. In the cross examination, he denied the suggestion put to him that he had never gone to the house of A7 (Arumugham Pillai) and that he had affixed or put his signature at the police station.

PW28, a resident of S.N. Street, Coimbatore, deposed that he is acquainted with A7 (Arumugham Pillai) and that the latter had also resided in the said place during 1994. PW28 denied having seen the police inspecting or searching the room of Arumugham Pillai. However, he deposed that he had seen the police bringing ink, chemicals and notes taken from the said place. He deposed that he and PW27 are attestors to Ext.P17 mahazar which had been prepared then. In the cross examination he denied the suggestion put to him by the defence that he as well as PW27 had affixed their signature at the police station, Coimbatore.

PW29, a partner of Rishab Paper Corporation, deposed that he is a resident of V.H. Road, Coimbatore, that they deal in the sale of paper, visiting cards etc., that the Kerala Police had produced a person before him, but he could not identify or say for sure whether the said person had purchased any paper from his shop. He was declared hostile and on further questioning deposed that he cannot deny the fact that the person who had been brought before him by the police, had in fact purchased paper from his shop.

PW30, the Detecting Inspector, Administrative, C.I.D. Head Quarters, Thiruvananthapuram, during 1994, deposed that on the basis of the letter sent by the Currency Officer, RBI Thiruvananthapuram to the S.P. Crime Branch, Thiruvananthapuram, he registered Crime No.97/Cr/94 under Section 489B IPC. The FIR has been marked as Ext.P18. According to him, Ext.P19 is the memo sent by the Assistant Currency Officer, RBI, Thiruvananthapuram, to the Superintendent of Police. The original of FIR was submitted before the jurisdictional Magistrate. The records were sent to C.B.C.I.D., Counterfeit Squad, Thiruvananthapuram, which office started the investigation into the case.

PW31, the then C.B.C.I.D. Detecting Inspector, Kozhikode deposed that he had conducted investigation in the case. According to him, Ext.P15 certificate would show that PW15 is the owner of the residential building in which A7 Arumugham was residing.

PW32 the then Detecting Inspector, CBCID (C.F.S.) Crime Branch, Kozhikode deposed that as directed by Dy.S.P., C.F.S., Kozhikode, he had taken over the investigation in the case. He had questioned PW1 to PW6 and recorded their statements. Ext.P1 statement of PW8 and Ext.P2 covering letter were seized as per Ext.P3 mahazar. On 05/05/1994 he had searched the houses of A1 N.V.Joseph, as well as that of PW8. As A1 was not in station, his arrest could not be effected. The search lists prepared then, have been marked as Exts.P4 and P5 respectively. With the help of PW8 and as identified by him, A1 was arrested from the KSRTC bus stand, Mananthavady. On the basis of Ext.P6(a) disclosure statement given by A1 and at the instance of A1, MO7 series, that is, 86 currency notes of the denomination of ₹500/- was recovered from the brick kiln situated near the house of Mary, a cousin of A1. MO7 series were seized as per Ext.P6 seizure mahazar. The plastic cover, the newspaper, the rubber band etc. used for wrapping the currency notes have been marked as MO8 series. PW32 deposed that A1 on questioning, had also confessed that MO5 series currency notes had been handed over by him to A2 M.V.Joseph. As led by A1, he proceeded to the house of A2. A2 confessed to the crime and on the basis of his Ext.P7(a) disclosure statement, his house was searched and in a wooden shelf kept in the room on the northern side of his house, a packet was seen, which on opening was found to contain 90 currency notes of ₹500/- denomination. MO5 series notes produced by A2 were seized as per Ext.P7 mahazar. On the basis of the information given by A1 that he had given few currency notes to A3 A.P. Chandran, with the assistance of Peravur police, he searched the house of A3 bearing no. II/33 situated in Peravur panchayat. However, no incriminating articles were found on search. On 11/05/1994, further investigation was conducted into the case. On the basis of the information given by A1 that he had given two notes of ₹500/- denomination to A4 (Abdulla), he proceeded to the house of A4 along with A1. A4 also confessed to the crime, on the basis of which he was arrested. On the basis of Ext.P9(a) disclosure statement given by A4, MO3 series, that is, two currency notes of ₹500/- denomination each were recovered. The notes had been kept between the pages of MO2 Malayalam text book of the sixth standard that was produced by A4. MO3 series currency notes and MO2 textbook were seized as per Ext.P9 seizure mahazar. On the basis of the information given by A1, he also searched the house of A5 (Raghavan). However, the search did not yield any results. A5 (Raghavan) surrendered before him and produced MO4 series, that is, two currency notes of ₹500/-, which according to A5 were given to him by A1. A5 was arrested. MO4 series were seized as per Ext.P14 seizure mahazar. On 14/05/1994, he arrested A3 and questioned him. On the basis of the information given by A3, he arrested A7 Arumugham. The implements used for counterfeiting the notes were seized at the instance of A7 Arumugham from his residence. The other articles seized are MO9 series, four currency notes of the denomination of ₹500/-; 46 original currency notes of the denomination of ₹500/-, that is, MO10 series; 100 currency notes of the denomination of ₹10/-, that is, MO11 series and MO12 series, the chemicals, the paper etc., that were used for counterfeiting the notes. In addition to the aforesaid items, counterfeit currency notes of Saudi Arabia were also seized as per Ext.P20 search list. He prepared Ext.P11 mahazar relating to the room which was used by A7 to counterfeit the notes. A7 was identified by PWs.14, 16 and 29 who admitted having sold paper, carbolic acid etc. to A7. The seized articles were produced before the court as per Ext.P21 property list. Ext.P22 is the carbon copy of the forwarding notes submitted by him requesting the court for forwarding the notes for examination. Ext.P24 is the report of the examination received relating to ₹500/- notes seized from the accused. PW32 also deposed that when PW11 and PW13 were questioned, they had given Exts.P8 and P10 statements.

Now the question is whether the aforesaid evidence is sufficient to prove the case charged against A1 and A3. The case against A3 as per the charge is that, A7 (abated) had counterfeited currency notes of the denomination of ₹500/- and sold them to A3 who received the same and kept it in his possession with the knowledge that the same are counterfeit notes and thereafter sold it to A2. A2 in turn is alleged to have sold it to A1 as well as the other accused persons. A3 has been convicted and sentenced by the trial court for the offence punishable under Section 489B IPC. The prosecution in order to establish an offence punishable under this Section will have to show that A3 sold or bought or received from another person or otherwise trafficked in or used as genuine any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. Here, admittedly nothing incriminating has been recovered from A3. However, as per the trial court, A3 has given a confession statement to the effect that he would point out A7 and his residence to the police and on the basis of the said confession statement and as led by A3, PW32 proceeded to Coimbatore and arrested A7 as identified by A3, pursuant to which MO9 series to MO12 series which include counterfeit currency-note of the denomination of ₹500/- and ₹10/- as well as instruments used for counterfeiting the notes were recovered from the house of A7. According to the learned Sessions Judge, the confession statement of A3 coupled with the recovery of articles including counterfeit currency- notes from the house of A7, would establish the involvement of A3 in the case and hence proceeded to find him guilty and convict him for the offence punishable under Section 489B IPC.

This finding of the trial court is seriously assailed and it was submitted by the learned counsel appearing for A3 that the confession statement alleged to have been made by A3 to PW32, the investigating officer, is inadmissible in evidence and that it is not a disclosure statement coming under the purview of Section 27 of the Evidence Act. Reference was made to the dictum in Joseph v. State of Kerala, ILR 1997(3) Ker. 632 to support the argument. Joseph (Supra) was a case involving offences punishable under Sections 457, 379 read with Section 34 IPC. One piece of evidence the prosecution relied on in the said case was the recovery alleged to have made at the instance of the accused. After the arrest of the accused in the said case, the prosecution alleged that he had given a statement to the effect that if he is taken to a shop, he would point out the person to whom he had sold the necklace. It was held that this statement is inadmissible as any statement to be admissible under Section 27, must lead to a discovery of fact which was found wanting in the alleged disclosure statement of the accused in the said case. The learned Judge has referred to the decisions of the Hon'ble Supreme Court in Mohmed Inayatullah v. State of Maharashtra, AIR 1976 SC 483; Jaffer Husain Dastagir v. State of Maharashtra, 1971 M.L.J. (Crl.) 212 and Himachal Pradesh Administration v. Shri Om Prakash, AIR 1972 SC 975. In Mohmed Inayatullah (Supra) it has been held that 'fact discovered' means not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this. In Jaffer Husain Dastagir (Supra) it has been held that only such portion of the information given as is distinctly connected with the recovery, is admissible against the accused and that the discovery of fact must relate to the commission of some offence and the essential ingredient to the Section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Further, in Om Prakash (Supra) it has been held that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 of the Evidence Act and cannot be proved. A witness cannot be said to be discovered under Section 27 of the Evidence Act though the statement of the accused may be taken into consideration as conduct relevant under Section 8 of the Evidence Act. Relying on the aforesaid decisions, it was held that it cannot be held that the material object, namely the stolen gold necklace, had been recovered at the instance of the accused in the said case.

In the case on hand, Ext.P17 is the seizure mahazar alleged to have been prepared by PW32 when the material objects were seized from the house of A7. PW27, the attestor to Ext.P17, supports the prosecution case. But the question is, can the seizure or recovery alleged to have been made from the residence of A7 (abated) be used against A3? The alleged confession made by A3 to PW32 has been shown in quotes in Ext.P17. However, the same is not seen marked. Even if it had been marked, it would in no way have helped the prosecution because as per the said statement, A3 is alleged to have stated that if he is taken, he would point out the residence of A7 at Puthoor in Coimbatore ("എക( കക ണപ  യ ല പക യമതര ല പതര എ( സലതള അര1ഖന എ( പ3യ5 ട യ ക6 വ ട5 ക ണ ചതര 5"). This apparently is not a statement admissible under Section 27 of the Evidence Act for the reason referred to in Joseph (Supra). That being the position, the learned Sessions Judge erred in holding that the confession statement of A3 coupled with the recovery of the articles including forged notes from the house of A7 would establish the involvement of A3 in the case. Hence the said finding requires to be interfered with.

Now coming to A1 who has been convicted and sentenced for the offences punishable under Section 489B as well as Section 489C. Section 489B says that 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. I have already referred to Section 489C IPC. It was argued on behalf of A1 that mere possession of counterfeit notes is not sufficient and that there must be evidence to show conscious possession of the same; that there has been inordinate delay in the material objects reaching the court which has not been explained by the prosecution and therefore, A1 is entitled to get the benefit of doubt. In support of the arguments, reference was made to the decisions in Bijender @ Mandar v. State of Haryana, 2021 ICO 2145; Muhammed Koya v. State of Kerala, 2020 ICO 586 and Rajan v. State of Kerala, 2020 ICO 5104.

In Muhammed Koya (Supra), it has been held that to attract the offence under Section 489B IPC, mere possession of counterfeit note is not enough. On the other hand, there must be evidence to show that the accused sold or bought it, or received it from any other person, or otherwise trafficked in it or used it as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. But it may attract the offence under Section 489C IPC. In the case on hand, the prosecution case is that MO1 currency-note of the denomination ₹500/- had been handed over by A1 to PW8. I have already referred to the deposition of PW8 regarding this aspect which testimony has not been discredited in any way. PW8 refers to the circumstances in which A1 had handed over MO1 currency-note to him. The prosecution also relies on the testimony of PW13 and PW20 to establish the handing over of MO1 currency-note to PW8. It is true that the said two witnesses have not fully supported the prosecution case. PW13 turned hostile and denied having any acquaintance with PW8 or A1 Joseph. However, he admitted to be acquainted with PW20. PW13 also denied having given any statement to the police that he had seen A1 handing over a currency-note of the denomination ₹500/- to PW8. But he admits that he had seen a scuffle between the two. PW20, on the other hand, admits that he had seen A1 handing over a 500 rupee note to PW8. He also admits the presence of PW13 with him and PW8 on the said day. According to PW20, he knows A1 only through PW8 and that he had met A1 at the park at Mananthawady. The evidence of PW20 would only show that he has no direct acquaintance with A1 but only through PW8. It is true that he failed to identify A1 before the court. However, the testimony of PW20 clearly supports the case of PW8 that he had received MO1 currency-note from A1. Now the fact that PW8 had in fact taken and handed over MO1 note to the bank, is established by the testimony of PWs.1 to 4, the bank officials as well as PW5 who had accompanied A1 to the bank. Nothing has been shown or pointed out on behalf of A1 to show as to why the testimony of the aforesaid persons should be disbelieved or discarded. The evidence on record shows that MO1 had in fact been handed over by A1 to PW8, which was in part- repayment of the amount advanced by PW8 to A1 relating to the visa transaction between the parties. Therefore, the intention of A1 to use MO1 counterfeit as an original or genuine one, is clear from his conduct of handing over the same to PW8 to discharge the liability he owed to PW8. A1 never has a case that he had handed over MO1 under the belief or impression that it was actually a genuine one. On the other hand, his case is one of complete denial of any transaction with PW8. The evidence on record clearly shows that MO1 had been handed over by A1 to PW8 and it was intended to be used as a genuine one. Therefore, the ingredients of Section 489B IPC has been clearly made out against A1 on the basis of the aforesaid evidence.

Now coming to Section 489C IPC, to which ingredients I have already referred to. The prosecution case is that as per Ext.P6(a) disclosure statement of A1, MO7 series currency-notes of the denomination of ₹500/-were recovered as per Ext.P6 seizure mahazar from among the broken bricks in a brick kiln situated near the house of A1's cousin. PW9 and PW10 are the witnesses examined to prove the seizure effected at the instance of A1 from the aforesaid place. However, PW9 and PW10 do not support the prosecution case as they turned hostile and denied having seen or having given any statement to the police that they had seen A1 handing over the currency-notes to the police on the said day. They admit that they are attestors to Ext.P6 mahazar. But according to them, they attested the same at the police station. PW10 admits the presence of A1 along with the police on the said day and also the fact that the police had visited the property situated adjacent to the property in which he and PW9 were working. Merely because the independent witnesses have turned hostile and do not support the prosecution case, is no ground to reject the case against A1. Ext.P6(a) statement satisfies the ingredients of Section 27 of the Evidence Act. The said statement is seen to have led to the recovery of MO7 series currency-notes and therefore the evidence clearly establishes the recovery of MO7 series notes at the instance of A1. The fact that MO7 currency-notes and MO1 currency-note are counterfeit is established by Ext.P24 report, which is admissible under Section 292 Cr.P.C. In Bijender @ Mandar (Supra) it has been held that the Court can convict an accused based exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in such a case, the recovery should be unimpeachable and should not be shrouded with elements of doubt. Circumstances such as, the period of interval between the malfeasance and the disclosure; the commonality of the recovered object and its availability in the market; the nature of the object and its relevance to the crime; the ease of transferability of the object and the testimony and trustworthiness of the attesting witness before the court and/or other like factors are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. In the case on hand, none of the circumstances referred to in Bijender @ Mandar (Supra) are available here. It is true that the attesting witnesses have turned hostile and do not support the prosecution story. However, as referred to earlier, there is nothing to disbelieve the testimony of PW32 on this aspect relating to recovery of MO7 currency-note at the instance of A1. Therefore, the dictum in Bijender @ Mandar (Supra) would not in any way help A1.

Now coming to the argument relating to the delay in the material objects being produced before the court by PW32. Ext.P21 series property lists show that it was prepared on 20/09/1994. It is seen to have been received by the office of the jurisdictional Magistrate on 31/09/1994. Therefore, there is certainly delay of about 10 to 11 days in the material objects being received by the court. In Rajan (Supra), it has been held that in abkari cases, forwarding note is an important piece of evidence because the specimen seal used by the detecting officer would find a place in it, that it is the fundamental duty of the prosecution to prove all the links starting from the seizure of the contraband till it reaches the hands of the analyst and that if there is no explanation from the part of the prosecution regarding the delay in producing the sample before the court, the accused would be entitled to the benefit of doubt. Ext.P22 forwarding note does contain the proper seal and other necessary details. PW32 when examined, was asked the reason for the delay in the material objects reaching the court, to which he answered that he had prepared Ext.P21 property list on 20/09/1994 and that he had personally gone to the office of the jurisdictional Magistrate and had handed over the same to the property clerk. But due to administrative delay and it was only because the verification of the material objects took time and was completed only by 31/09/1994, the same were received only on the said day. This part of the testimony of PW32 has not been challenged in any way. Therefore the testimony of the investigating officer would show that he had produced it before the court on 20/09/1994 itself and it was because of the delay on the part of the office of the court in verifying the same and receiving it, the delay had occurred. There is no challenge to the testimony of PW32 or no question put or not even a suggestion put to PW32 that the notes after the seizure were not kept in his safe custody. Nothing has been brought on record to show that any foul play did take place. That being the position there is nothing on record to disbelieve the evidence on record as against A1. Therefore, I find no infirmity in the finding of the trial court relating to conviction of A1 for the offences punishable under Section 489B and Section 489C IPC.

In the result, Crl.Appeal No.1575/2006 is allowed. The impugned judgment relating to the conviction and sentence of A3 for the offence punishable under Section 489B IPC is set aside and A3 is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith. Crl.Appeal No.1715/2006 is dismissed and the impugned judgment relating to the conviction and sentencing of A1 for the offences punishable under Section 489B and Section 489C IPC, is confirmed.

All interlocutory applications, if any pending, shall stand closed.