Joy, S/o Devasia vs State Of Kerala

Ziyad Rahman A.A., J

Appellant is the first accused in S.C.No.479 of 2004 on the file of the Additional District and Sessions Court-III (Adhoc), Manjeri. Aforesaid case arises from Crime No.749 of 2002 of Perninthalmanna Police Station, which was later taken over by the CBCID, SIG III Branch, Kozhikode and numbered as Crime No.465/CR/CK/02. The aforesaid crime was registered against the appellant and another for the offences punishable under Sections 489B and 489C read with Section 34 IPC.

The prosecution case is that, on 15.10.2002 at 21.30 hours, the accused persons came to ‘Muthappan Bar’ situated in Sabreena Hotel at Perinthalmanna and the 1st accused attempted to purchase ½ bottle of ‘Majestic Rum’ from the above bar, using a counterfeit currency note of Rs.100/-denomination. Being suspicious of the genuineness of the note, the barman of the hotel reported the matter to the Supervisor and accordingly they verified the genuineness of the said currency. Upon being convinced that the same is fake, they apprehended the accused person and the matter was informed to the police. Police came to the spot immediately and the accused were arrested and fourteen counterfeit currency notes of 100 denomination were recovered from the possession of the 1st accused. Genuine notes for an amount of Rs.1,730/-, which was kept in a black purse was also seized from the possession of the 1st accused. The crime was registered on the basis of the same and later the same was transferred for investigation to the CBCID, SIG III Branch, Kozhikode. Upon conducting further investigation, a final report was submitted and the same was taken into file by the Judicial First Class Magistrate Court-I, Perinthalmanna as C.P.No.26 of 2004.

Upon completing the legal formalities, the same was committed to the Sessions Court, Manjeri and later it was made over to the Assistant Sessions Court, Manjeri for trial and disposal. Subsequently, the same was withdrawn as per order No.A2-5064/02 dated 22.10.2005 and made over to the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri, where it was tried as S.C.No.479 of 2004.

In support of the prosecution case, seven witnesses were examined, fifteen exhibits were marked and one material object was identified from the side of the prosecution. The contradiction in the statements of PW2 and PW4 were marked as Exts.D1 and D2. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and incriminating materials brought out during the course of trial were put to them. Both of them denied the same and pleaded innocence. No defence evidence was adduced.

After examining the materials placed on record, the learned Sessions Judge found the appellant/1st accused guilty of the offence, whereas the 2nd accused was acquitted of all the charges. Consequently, the appellant was sentenced to undergo rigorous imprisonment for five years and a fine of Rs.10,000/-(Rupees ten thousand only) with default sentence of simple imprisonment for one year for the offence punishable under Section 489 B IPC. He was also sentenced to undergo imprisonment for three years and a fine of Rs.10,000/- (Rupees ten thousand only) with default sentence of six months for the offences punishable under Section 489 C IPC. This appeal is filed by the appellant challenging the aforesaid order of conviction and sentence.

As there was no appearance for the appellant, Adv.Sanjana Rachel Jose was appointed as Amicus Curiae to assist this Court and I heard her. Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appeared on behalf of the State.

The learned Amicus Curiae contended that the conviction and sentence imposed upon the appellant are not legally sustainable. According to her, the procedure adopted by the investigating agency was faulty and it created serious lacuna in the prosecution. It is pointed out that, even though the arrest was allegedly made from the place of occurrence, which was the premises of a bar hotel, Ext.P4 arrest memo contain the crime number. It is pointed out that, the FIR was registered by the police only at 22.30 hours on 15.10.2002, whereas, as per the arrest memo, the arrest was at 21.14 hours on 15.10.2002. In such circumstances, the mentioning of crime number in Ext.P4 arrest memo creates a serious shadow of doubt on the side of the prosecution. It is also contended that there was delay in producing the counterfeit notes before the court. It is pointed out that even though the same was seized on 15.10.2002, it was produced before the court on 23.10.2002, which is evident from Ext.P6 property list. Another contention put forward by the learned Amicus Curiae is that the source of the counterfeit notes was not investigated by the police. It is also contended that the conscious possession of the currency notes is also not proved by the prosecution. The learned Amicus Curiae places reliance upon the decisions rendered in Santhosh v. State of Kerala [2021(5) KHC 2014], Kuttan Nadar v. State [2002 (2) KLJ 362] and Umashankar v. State of Chhattisgharh [2001 (3) KLT 681].

On the other hand, the learned Public Prosecutor would contend that the prosecution is successful in establishing the guilt of the accused beyond reasonable doubt. It is pointed out that, in addition to the official witnesses, PW2 and PW4 who are the supervisor and barman of Sabreena hotel, who were at the place of occurrence at the relevant time, have clearly deposed about the sequence of events which lead to the apprehension, seizure of currency notes and arrest of the appellant. In such circumstances, there is no scope for interference in the finding of guilt entered by the Sessions Court and hence he prays for dismissal of the appeal.

The crucial evidence that is relied upon by the prosecution is the evidence of PWs 1 to 5. PW1 is the detecting officer, who was the Sub Inspector of Police, Perinthalmanna at the relevant time. He has stated that, on 15.10.2002 at 21.15 hours he was informed by the manager of Sabreena hotel that, one person is apprehended by the staff of the hotel while he attempted to purchase alcohol by using counterfeit currency note of 100 denomination. It was also informed that the culprit is suspected to have more counterfeit notes in his possession. Immediately PW1, along with police party reached Sabreena hotel, where the appellant/1st accused was found surrounded by the staff of the hotel. On searching his body, PW1 recovered 14 counterfeit notes of 100 denomination and genuine notes of Rs.1,730/- from his purse. The articles were seized by preparing Ext.P1 seizure mahazar and the appellant was arrested after preparing Ext.P4 arrest memo. Therefore, the accused person was brought to the police station along with the articles seized and crime was registered. Subsequently, the investigation was transferred to CBCID, SIG III, Kozhikode.

PW2 is the supervisor employed in Sabreena hotel, Perunthalmanna. He deposed that, during the month of October, 2002 the appellant/1st accused came to the bar named “Muthappan Bar’ in Sabreena hotel for purchasing alcohol. He handed over a currency note of Rs.100/- to the barman namely Venu. As the barman suspected its genuineness, the matter was informed to him. Immediately PW2 informed the manager, who in turn, had informed the police with regard to the same. Thereupon, the police party came and arrested the appellant. He also admitted his signature in Ext.P1 mahazar and also deposed about the preparation of the seizure mahazar in the premises.

PW4 is the barman to whom the currency note was handed over by the appellant. He also deposed in tune with the evidence of PW2. He also admitted his signature in Ext.P4 arrest memo.

PW5 conducted investigation from 21.12.2002 to 01.10.2003 and he recorded the statements of some of the witnesses. PW6 is the Deputy Superintendent of Police who conducted investigation from 21.10.2003 onwards and he recorded the statements of the other witnesses. Exhibit P15 is the expert opinion regarding the fakeness of the currency notes which was prepared after the examination of the same. The aforesaid document would prove the fakeness of the currency notes which are marked as Ext.P2 series. These are the crucial materials produced before the court by the prosecution to establish the offence alleged against the appellant.

One of the main contentions put forward by the learned Amicus Curiae is that, the arrest from the place of occurrence in this case as claimed by the prosecution is not at all believable. According to the learned Amicus Curiae Ext.P4 arrest memo indicates that the arrest was made on 15.10.2002 on 21.14 hours and the FIR was registered on 22.30 hours on the same day. It is evident from the deposition of PW1 that the appellant was arrested from the spot and later he was brought to the police station and FIR was registered thereafter. However, despite the same, the Crime number 749 of 2002 is seen mentioned in Ext.P4, which is claimed to have been prepared at the time of arrest of the appellant from Sabreena hotel. It is pointed out that, if the arrest as claimed by the prosecution is made, it was not possible to include the crime number in the arrest memo and according to the learned counsel it creates serious suspicion as to the arrest of the appellant. It is also pointed out that since the seizure and arrest were made simultaneously and the entire prosecution case is built upon such seizure and arrest, the veracity of the arrest is a matter of crucial importance. In such circumstances, if it is not proved by the prosecution that the arrest has taken place from Sabreena hotel itself, it would shatter the entire prosecution case.

It is true that the mentioning of the crime number in Ext.P4 arrest memo creates a shadow of doubt on the case of prosecution with regard to the arrest made. However, that by itself cannot be a ground for acquittal, if there are other materials supporting the case of the prosecution with regard to the place and time of arrest. In this case, there is evidence of PW2 and PW4, who are independent witnesses. In addition to the above, evidence of PW1 is also there and there are contemporaneous documents such as Ext.P1 mahazar in addition to Ext.P4 arrest memo. Therefore, even though the crime number mentioned in Ext.P4 arrest memo is a matter which creates doubt, the other evidence in the form of deposition of independent witnesses mentioned above, fills up the lacuna created on account of mentioning of crime number in Ext.P4 arrest memo. It is to be noted that, all the witnesses namely PW1, PW2 and PW4 have categorically and consistently mentioned, the entire sequence of events lead to the arrest of the appellant and seizure of the articles. The learned Amicus Curiae relied upon the judgment in Santhosh’s case (supra) to substantiate her contention relating to the arrest. It is observed in the aforesaid decision that the inclusion of crime number in arrest memo creates a shadow of doubt on the prosecution case. However, in this case, even though it is treated as a reason to doubt the prosecution case, there are several other materials supporting the prosecution case that the arrest of seizure was made from the Sabreena hotel at the time mentioned in Ext.P4. In such circumstances, I do not find any reason to accept the contention of the learned Amicus Curiae in this regard.

Another  contention  put  forward  by  the  learned Amicus Curiae is relating to delay in producing the counterfeit notes before the court. It is true that Ext.P1 indicates that the articles were seized on 15.10.2002 and the same was produced before the court on 23.10.2002 and this is evident from Ext.P6 property list. It is pointed out that during this period, the aforesaid counterfeit notes were in possession of PW1 and there are no materials indicating the safe custody of the aforesaid currency notes. In such circumstances, it was pointed out that the prosecution could not prove that the notes produced before the court were the same currency notes, which were seized from the possession of the appellant. However, I am not inclined to accept this contention as well. It is true that there is some delay on the part of PW1 in producing the articles before the court. However, that reason by itself cannot be a ground to acquit the appellant herein. First of all, while cross examining PW1 no question with regard to the delay was asked by the learned counsel appearing for the appellant/1st accused and the custody of the said articles by PW1 during the said period was also never challenged. Apart from the above, Ext.P1 mahazar would indicate specific and categorical description of each currency notes seized from the possession of the appellant. The aforesaid notes were identified by the relevant witnesses during the course of their examination. Ext.P1 mahazar, which is a contemporaneous document prepared, coupled with the evidence of PW1, PW2 and PW4 would clearly establish the fact that the currency notes which were seized from the possession of the appellant were the notes produced and marked before the court. In such circumstances, aforesaid contention of the learned Amicus Curiae is also to be rejected.

Another contention is with regard to the conscious possession of the appellant over the currency notes. The learned Amicus Curiae places reliance upon the judgment in Umashankar’s case (supra) and Kuttan Nadar’s case (supra). In both the aforesaid decisions it was held that mere possession of fake currency notes will not indicate the mens rea on the part of the accused and the prosecution must prove that the accused has used, or attempted to use the currency notes, intentionally with the knowledge of its fakeness. In this case, when we examine the materials available on record, there are several factors which would clearly establish the conscious possession of the appellant herein. In this case, it is evident that the appellant has kept the counterfeit notes separately. The genuine notes were found from his purse, whereas counterfeit currency notes were found from his pocket. It is also discernible from the evidence that, an attempt was also made by the appellant to ran away from the premises upon detention of the counterfeit notes. Moreover, it is evident from the deposition of PW4 that the notes were easily identifiable as fake notes, and he realized the same immediately upon receipt of the notes. These aspects would clearly indicate that the appellant was having knowledge of the fakeness of the currency notes. The decisions relied upon by the learned Amicus Curiae in support of the said contention cannot be made applicable to the facts of this case which are discussed above.

Another  contention  put  forward  by  the  learned Amicus Curiae is that the prosecution has not made any attempt to find out the source of the currency notes. It is true that admittedly no such attempt is seen to have been made. However, that cannot be treated as a ground which would vitiate the prosecution case. Offences under Section 489B and 489C would get attracted if the accused is using a counterfeit currency note as genuine one. Going by the stipulation contained in the aforesaid provisions, even in the absence of detection of the source of counterfeit currency, the prosecution for the offences under Section 489B and 489C of IPC are maintainable. In such circumstances, merely because of the reason that the prosecution could not establish the source of counterfeit currency, the accused cannot be acquitted.

In such circumstances, I am of the view that, the finding of guilt and consequential conviction as well as the sentence imposed upon the appellant do not suffer from any legal infirmity. In such circumstances, this appeal is only to be dismissed by confirming the judgment passed by the Court of Additional District & Sessions Court-III (Adhoc), Manjeri in S.C.No.479/2004. I appreciate with gratitude, the productive effort and assistance provided by Adv.Sanjana Rachel Jose, the learned Amicus Curiae in the matter.

The appeal is dismissed accordingly.