Joseph vs State Of Kerala

Dr. Kauser Edappagath, J

This appeal has been preferred by the 2nd accused in SC No.1319/2004 on the file of the Additional Sessions Court VI, Thiruvananthapuram (for short, 'the court below') against the judgment dated 23rd November, 2016 convicting and sentencing him under section 489B and 489C r/w 34 of IPC.

The prosecution case in short is that the 1st accused arranged 6,500 fake 10 rupee currency notes from somebody and knowing that they were forged, gave 3,000 fake 10 rupee notes to the 2nd accused who received the same knowing that they were forged and both the accused possessed them intending to use it as genuine on 25/11/1993 at 3.15 p.m. at Maveli Cafe situated in Indian Coffee House, Thamapanoor, Thiruvananthapuram.

The 2nd accused alone faced trial. On the side of the prosecution, PWs1 to 7 were examined and Exts.P1 to P8 were marked. MOs1 to 32 were identified. On the side of the defence, DWs1 and 2 were examined and Exts.D1 to D5 were marked. After trial, the court below found the 2nd accused guilty under section 489B and 489C of IPC and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `20,000/- in default to suffer further period of imprisonment for two years under section 489B of IPC and also to undergo rigorous imprisonment for four years under section 489C of IPC. Challenging the said conviction and sentence, the 2nd accused preferred this appeal.

I have heard Sri.R.T.Pradeep, the learned counsel for the appellant and Smt.S.Rekha, the learned Senior Public Prosecutor .

The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and the resultant finding as to the guilt. The counsel further submitted that none of the witnesses examined on the side of the prosecution could identify the 2nd accused. The counsel further submitted that the evidence of PWs 1 to 3 are full of contradictions and omissions. The counsel also submitted that the 2nd accused has established by adducing defence evidence that PW4, the detecting officer, was on inimical terms with the accused while he was working at Kazhakoottam and the case was falsely foisted against him. On the other hand, the learned Senior Public Prosecutor supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

The prosecution mainly relied on the evidence of PWs 1, 3, 4 and 6 to prove the seizure of the fake currency notes from the 2nd accused and his arrest. PW4 is the detecting officer. PWs1 and 3 are independent witnesses. PW6 is the police constable who accompanied PW4 at the time of detection. The evidence of PW4 would show that on 25/11/1993 at 3.15 p.m., he got secret information that the 2nd accused and another person reached Thampanoor for trafficking forged currency notes and on the basis of the said information, he along with PW6 and other policemen went to Maveli Cafe situated in Indian Coffee House, Thampanoor where they saw both the accused sitting on either side of the 6th table. He further deposed that he saw the 1st accused giving a green polythene carry bag containing a packet to the 2nd accused and the 1st accused was also carrying another polythene carry bag containing a packet in his hand. Then, he questioned them and on examining the packet held by the 2nd accused, he could find 30 bundles of 10 rupee fake currency notes and on examining the packet held by the 1st accused, he could find 35 bundles of 10 rupee fake currency notes. His evidence would further show that thereafter he arrested both the accused and seized the polythene carry bags and packets containing currency and thereafter labelled and sealed it properly. Ext.P1 is the mahazar. Those currency notes were identified as MO2 to 12, 14 to 26, 28, 29 and 32 series. MO1 series are the green coloured polythene carry bags. PW6, the constable who accompanied PW4, witnessed the seizure of the fake currency notes and also the arrest of accused. He deposed in tune with the evidence given by PW4. Even though PWs4 and 6 were subjected to detailed cross-examination, nothing was brought out to discredit their testimony. PWs4 and 6 identified the accused as well as MO2 to 12, 14 to 26, 28, 29 and 32 series currency notes.

The evidence of PWs4 and 6, the official witnesses, gets corroboration from the independent witnesses who were examined as PWs1 and 3. PW1 is the Senior Manager and PW3 is the Manager of Maveli Cafe. Both of them gave evidence that the 1st and 2nd accused were in possession of the fake currency notes and they saw PW4 seizing the same from them. Both of them identified the 2nd accused as well. There is nothing to discredit their testimony. The seizure of the fake currency notes from the possession of the 2nd accused and his arrest are amply proved by the testimonies of PWs1, 3, 4 and 6. The defence has not been able to cause any dent to their evidence who credibly deposed in support of the prosecution case. The evidence on record would show that counterfeit currency notes seized from the accused were sent for scientific examination to CNP, Nasik and Ext.P7 certificate has been obtained. Ext.P7 would show that 5904 notes of `10 denomination sent for examination are forged notes. Even though the defence have set up a case that out of personal enmity of PW4 with the 2nd accused, a false case has been foisted, he has not been able to probablise the same. The prosecution has succeeded in establishing beyond reasonable doubt that the appellant received counterfeit currency notes from the 1st accused and possessed the same with the intention to use the same as genuine and thus committed the offence punishable u/s 489B and 489C of IPC. Hence, I see no reason to interfere with the finding of conviction rendered by the court below. The court below sentenced the accused to undergo rigorous imprisonment for 7 years and to pay a fine of `20,000/- in default to suffer further period of imprisonment for two years under section 489B of IPC and also to undergo rigorous imprisonment for four years under section 489C of IPC.

The learned counsel for the appellant submitted that the appellant is a first time offender and he is the only breadwinner of the family. The counsel further submitted that the appellant has been facing the trauma of trial for the last 17 years. Considering the entire facts and circumstances of the case, I am of the view that the substantive sentence imposed by the court below can be reduced. Hence, the substantive sentence imposed by the court below for the offence punishable under section 489B as well as 489C is reduced to three years rigorous imprisonment each retaining the fine and default sentence. Set off is allowed.

The appeal is allowed in part as above.