Jayarajan vs State Of Kerala

P.G. Ajithkumar, J.

This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).

The 1st accused in S.C.No.128 of 2002 is the appellant. He was convicted as per the impugned judgment dated 03.03.2007 by the Additional Sessions Judge (Adhoc)-I, Manjeri for the offence punishable under Sections 489B and C of the Indian Penal Code, 1860 (IPC). The sentence imposed is rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/- under Section 489B and rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/-under Section 489C of the IPC.

There were ten accused. Accused Nos.1 to 8 and 10 were committed for trial. Accused Nos.4 expired pending trial. The charge framed against accused Nos.1 to 3, 5 to 8 and 10 was for the offences punishable under Sections 489A, 489B, 489C and 489D read with Section 34 and Section 120 B of the IPC. The trial court after a full-fledged trial convicted accused Nos.1 and 2 alone. Other accused were acquitted. The 1st accused alone is in appeal.

The facts require to decide the present appeal are the following:

At about 5.15 a.m. on 24.02.1995 while PW1, Circle Inspector of Police was doing patrolling duty, accused Nos.1 and 2 were found in possession of counterfeit current notes in car bearing Reg.No.KLM-8303 wherein the said accused were traveling. Accused No.1 kept in his house more counterfeit currency notes and distributed counterfeit currency notes at various places on various dates knowing them to be counterfeit notes. They possessed the notes knowing them to be counterfeit currency notes and with intent to use as genuine. They thereby committed offences punishable under Sections 489 B and C of the IPC.

At the trial, PWs.1 to 15 were examined and Exts.P1 to P28 were marked. MOs.1 to 11 were identified. The appellant besides denying the evidence against him under Section 313(1)(b) of the Code, filed a statement also. Regarding the allegations about possessing a printing press and keeping it in his house for the purpose of printing counterfeit notes, he has stated several facts, which are irrelevant now, inasmuch as he was acquitted of the said charges. As regards the charge, which were found proved, the statement was that he was innocent, no currency notes were seized from his possession and he was implicated in the case falsely. The defence evidence, Exts.D1 to D3, are the contradictions in the statements of PWs.2, 5 and 6. Exts.D4 and D5 were also produced.

The findings of the trial court leading to the conviction of the appellant are assailed in the appeal on many grounds. The evidence of PWs.1 and 2 was mainly relied on to enter a conviction. It is contended that the said evidence in the absence of any independent corroboration cannot be believed. The report obtained from the Bank Notes Press, Dewas, Ext.P23 concerning MOs.2 and 3 currency notes is said to be unreliable for want of formal proof. Evidence regarding recovery of MO3 series currency notes is said to be unbelievable. Further, the place from where the recovery was effected is not proved to be in the exclusive possession of the appellant. Therefore, no authorship of concealment can be attributed to him and hence the said recovery cannot be used against the appellant. Thus, the appellant contended that the conviction is based on insufficient evidence and the appeal is liable to be allowed.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

Points which require consideration are,-

(i) Did the appellant possess MO2 and MO3 current notes?

(ii) Are MOs.2 and 3 counterfeit currency notes?

(iii) Is the conviction of the appellant for the offences punishable under Sections 489B and 489C legal and correct?

POINT NO.(i)

Evidence of PWs.1 and 2 is relied on by the prosecution to prove that while the appellant along with the 2nd accused was travelling in a car bearing Reg.No.KLM-8303 they possessed currency notes of 100 rupee denomination totalling Rs.2,70,000/- on 24.02.1995. PW1 was the Circle Inspector, Valancheri. PW2 was the Sub Inspector. While they were on patrol duty, during morning hours on the said day, they happened to check the car wherein the appellant and the 2nd accused were travelling. It was during their routine check, the said car was also inspected. A packet wrapped in a blue plastic cover was found on the front seat between the driver and the passenger. The appellant was the driver. The 2nd accused was the passenger. The version of PW1 regarding the said interception, seizure and registration of the crime are narrated in para 12 of the impugned judgment, which reads:-

“12. PW1 was the Circle Inspector of Police, Valancherry on 24.02,1995 in the early morning hours he along with PW2, the S.I.of Police, Valancheri while doing law and order duty and checking traffic found an ambassador car coming to the Kozhikode side which was stopped. There were a driver and a passenger in the said car. PW1 identified the first accused as the driver and the second accused as the person who was sitting in the front seat. It is said by PW1 and PW2 that a blue plastic cover was found on the seat in between the accused 1 and 2 which on verification found as containing fresh notes of the denomination of 100 rupees. On verification by PW1 and PW2, they could reveal that these notes were counterfeit notes. Hence by preparing Ext.P1 seizure mahazar, the notes, the cover and the papers used for folding the notes were taken in custody. PW1 had arrested the accused 1 and 2 and registered crime No.35/95 against them under Section 489A, 489B and 489C, IPC. The said F.I.R. is Ext.P2.”

The further version of PW1 is that during questioning, the appellant gave a statement to the effect that a printing press and more currency notes were kept in his house and he could show the same if he was taken to that place. Recovery of MO3 currency notes was effected in consequence of the said statement.

When the said statement given by the appellant was tendered in evidence, it was objected. The reason was that the whole of the confession statement was proposed to be marked. The said statement contained confession of the appellant implicating not only himself but a few others. The court below had accepted only that part of the statement, which led to the recovery of MO3; in my view, rightly. That statement is Ext.P6.

On the basis of Ext.P6 statement, PWs.1 and 2 took the appellant to the house, which he had shown. Inside the house there was a printing press. The appellant pointed out a heap of hay in the Kalappura situated in front of the said house, from where a bag containing currency notes was seized. The bag contained currency notes of 100 rupee denomination totalling Rs.3,68,000/-. On preparing Ext.P3 mahazar, the said currency notes were seized.

PW12 is a witness to Ext.P1 under which MO2 currency notes were seized. MO1 is the plastic cover in which the said currency notes were wrapped up. PW12, although admitted singing in Ext.P1, did not support the remaining part of the prosecution case. He feigned ignorance as to whether the police personnel arrested two people and seized currency notes from their possession. Similarly, he failed to state the contents of Ext.P1. From the facts elicited from him by the Public Prosecutor, it is obvious that he falsely stated in court concerning his witnessing the seizure. But, his evidence as to preparation of Ext.P1 mahazar at the place of occurrence is believable.

PWs.4 and 7 are the attesting witnesses to Ext.P3 mahazar under which MO3 currency notes were seized. Both of them admitted their signature in Ext.P3. They did not ascribe to their statements before the police. It is maintained that they did not know for what purpose Ext.P3 was prepared. They also maintained that they did not see the seizure of currency notes from Kalappura of the appellant’s house. Therefore, their evidence is not of avail to the prosecution to prove seizure of MO3 currency notes.

Thus, the evidence available to prove that from the car driven by the appellant counterfeit currency notes worth Rs.2,70,000/- and on the basis of the statement of the appellant, currency notes worth Rs.3,68,000 were recovered from the Kalappura of his house is the evidence tendered by PWs.1 and 2 alone. The question is can their evidence be acted upon, without any independent corroboration, to enter a finding that such recoveries were duly effected.

During their routine check up on the public road, PWs.1 and 2 happened to intercept the car driven by the appellant. A packet was seen on the front seat in between the driver and co passenger. It is only natural for a police officer to inquire about the contents of the packets. On inspection, it was revealed that it contained a huge quantity of currency notes. It is the version of PW1 that on verification, he found that the said notes were fake ones, which resulted in the seizure and arrest of the appellant and the 2nd accused. It cannot be said that the process of seizure and their arrest is unusual. The version of PW2, accompanied by PW1, is quite in tandem to the oral evidence of PW1.

It is the version of PW1 that while in custody, the appellant gave Ext.P6 statement and that led to recovery of MO3 currency notes. PW2 accompanied PW1 and he also deposed in detail regarding the process of seizure. There is no intra or inter se contradiction in their evidence concerning any material particular. Ext.D1 contradiction in the evidence of PW2 is inconsequential and the same does not affect the credibility of PW2.

The learned counsel for the appellant would submit that evidence of PWs.1 and 2 concerning their interception of the car in which the appellant and the 2nd accused were allegedly travelling was quite suspicious. There was no reason for PW1 to doubt, on seeing a plastic bag in the car. When the 2nd accused was also in the car, the appellant cannot be attributed possession of the cover. Thus, it is contended that appellant cannot be held responsible for the possession of MO2. I am unable to accept the said contention. Whether on genuine suspicion or on intuition the plastic bag in the car was examined, when it contained currency notes of bulk quantity, there was nothing wrong with an investigator to verify it. On verification the currency notes were prima facie appeared to be fake ones. The circumstances in which the seizure was effected cannot be said to be suspicious. When both of them were the travellers and the appellant, who was driving the car, failed to explain that the other was in exclusive possession, the irresistible conclusion shall be that the appellant was fully aware of the contents of the packet and he too was in possession of MO2.

MO3 currency notes were located as pointed out by the appellant. Whether or not the house from where the said recovery effected was in his ownership, when the recovery could be effected only based on the information passed on by appellant and pointed it out by him, the evidence becomes admissible under Section 27 of the Evidence Act, 1872. The authorship of concealment can certainly be attributed to the appellant for, without Ext.P6 disclosure statement, PW1 could not have recovered MO3. Thus, the evidence concerning seizure of MOs.2 and 3 currency notes brought in through PWs.1 and 2 is cogent and free of any infirmity.

The Apex Court in Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217] held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the judiciary nor good to the public. It can only run down the prestige of the police administration".

In Tahir v. State (Delhi) [(1996) 3 SCC 338], while dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.”

The Apex Court in Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311] held that,-

“The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.”

In Baldev Singh vs State of Haryana [(2015) 17 SCC 554] the Apex Court reiterated that view.

Viewed in the light of the law laid down in the aforesaid decisions, evidence of PWs.1 and 2, which is found to be blemishless and gets support from Exts.P1 and P3 is sufficient to prove that the appellant along with 2nd accused was in possession of MO2 and appellant was in exclusive possession of MO3 notes.

POINT NO.(ii)

Ext.P23 is the report from the Bank Notes Press, Dewas, concerning MOs.2 and 3. It was reported that MOs.2 and 3 were counterfeit notes. The officer, who issued Ext.P23 was not examined. It was admitted in evidence through the investigating officer, PW15. The learned counsel for the appellant submitted that Ext.P23 cannot be acted upon since its author was not examined before the court and its contents are not duly proved. Section 292 of the Code deals with reports issued by officers of Mint, Note Printing Press, Security Printing Press, etc. It says that a report duly submitted by an officer of any Mint, or of any Note Printing Press, etc. may be used as evidence in any inquiry, trial or other proceedings under the Code, although such officer is not called as a witness. Section 292 was amended with effect from 16.04.2006. But the amendment does not affect the receivability of the report issued from a Note Printing Press without examination of the officer who issued the report. One aspect pointed out is that the incident in question was before the said amendment and therefore the amended provision cannot be applied. The provision of Section 292 of the Code being a matter concerning procedure, it can be applied retrospectively and therefore the said contention cannot also be accepted. Hence, there is no impediment in acting upon Ext.P23. MOs.2 and 3 are thus proved to be counterfeit notes.

POINT NO.(iii)

The trial court found the appellant guilty of the offence punishable under Section 489B and 489C of the IPC. The facts proved are that he possessed MOs.2 and 3 counterfeit notes. An offence under Section 489B is constituted if a person sells, buys or receives, from any other person, or otherwise trafficks in or uses as genuine forged currency notes. True, the appellant travelled possessing MO2 currency notes and kept MO3 in his custody. That is not enough to find that he trafficked the counterfeit notes. There is no evidence to show that he sold, got or received from any other person, or used as genuine counterfeit notes. Therefore, his conviction under Section 489B of the Code is incorrect.

It is the burden of the prosecution to prove the following facts, in order to convict a person for an offence under Section 489C of the IPC:

Accused was in possession of forged or counterfeit currency notes or bank notes

Knowledge or as reason to believe the note is counterfeit.

Intention to use the counterfeit notes as genuine or that it may be used as genuine.

The appellant possessed a huge quantity of counterfeit currency notes. While he was travelling, he was in possession of such currency notes. His intention could only be to use the same as genuine and no further evidence is required to establish that fact. Thus the proved facts constituted an offence under Section 489C of the IPC. Hence, the conviction of the appellant for the said offence is liable to be confirmed.

The appellant was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- for the offence under Section 489C of the IPC. Having regard to the delay that occurred in concluding the proceedings and age of the appellant, I am of the view that the substantive sentence can be reduced to rigorous imprisonment for a period of three years.

The appellant is acquitted for the offence under Section 489B of the IPC. His conviction for the offence under Section 489C is confirmed and the sentence is modified to rigorous imprisonment for a period 3 years and to pay a fine of Rs.10,000/-. Other orders concerning default sentence, set off and disposal of properties are confirmed.

The appeal is allowed in part to the above extent.