S. Chandran vs State

A. Ramamurthi, J.—The revision Petitioner/second accused in S.C. No. 46 of 1996 on the file of Assistant Sessions Judge, Srivilliputtur has preferred the revision aggrieved against the judgment of conviction and sentence imposed in Criminal Appeal No. 103 of 1997 by the learned Principal Sessions Judge, Srivilliputtur confirming the conviction and sentence imposed on the revision Petitioner u/s 489(c) and sentencing him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500/-.

The case is brief in as follows:

It is the case of the prosecution that on 27-9-1995, the revision Petitioner was found in possession of five counterfeit hundred rupees notes and they were seized by PW.5 under the cover of the mahazar, and the revision Petitioner was found in possession of the counterfeit notes with the knowledge and with an intention to use the same. On behalf of the prosecution, P.Ws.1 to 5 were examined and Exs.P1 to P11 were marked and M.Os.1 to 3 were produced. The trial Court found A1 to A3 guilty u/s 489(c) of IPC and sentenced each of them to undergo Rigorous Imprisonment for 3 years and to pay each of them a fine of Rs. 500/-. All the three accused preferred Criminal Appeal No. 103 of 1997 on the file of District Court, Srivilliputtur wherein the appeal was allowed in respect of the first accused and conviction and sentence imposed on A2 and A3 were confirmed. Aggrieved against this, the present revision petition is filed by the second accused.

The learned Counsel for the revision Petitioner/second accused contended that the courts below are not justified in convicting him for an offence u/s 489(c) of IPC. There is no evidence to show that the second accused was found in possession of counterfeit notes with the knowledge that they are counterfeit and with an intention to use the same. The complainant in the case, namely, P.W.5, Inspector alone had arrested the accused and examined all the important witnesses and as such, he cannot be an Investigating Officer and it vitiates the case. PW.5 stated that he seized the counterfeit notes, but the note numbers are not mentioned in mahazar Ex. P.1. One of the mahazar witnesses cited in the chargesheet was also not examined. In short, the case against the revision Petitioner is not proved beyond any reasonable doubt.

The learned Government Advocate (Criminal Side) contended that the court below were justified in finding the revision Petitioner as guilty and convicting him for an offence u/s 489(c). On the registered FIR, the further investigation was taken up by another Inspector, who had examined the court clerk and thereafter, filed the chargesheet. There is evidence to show that the revision Petitioner had knowledge that he was in possession of the counterfeit notes and with an intention to use the same.

Heard the learned Counsel for the revision Petitioner as well as the learned Government Advocate.

The points that arise for consideration are

Whether the revision Petitioner has committed an offence u/s 489(c) of IPC.

Whether the investigation conducted by PW.5 is proper and correct.

POINTS: The revision Petitioner and two other accused were found guilty for an offence u/s 489(c) of IPC and the lower appellate Court found A1 not guilty and acquitted him and the conviction and sentence imposed on A2 and A3 were confirmed. The second accused alone has preferred the revision and the learned Counsel for the revision Petitioner contended that PW.5, who registered the FIR has investigated the case and examined all the material witnesses and as such, it is vitiated and absolutely there is no evidence to state that the revision Petitioner had knowledge that they are counterfeit notes and he had intention to use the same. The prosecution has examined P.Ws. 1 to 5 to prove the case against the accused. P.W.1 was then working as Village Administrate Officer and he was examined to prove the recovery of the counterfeit notes from all the accused. PW.2, examined by the prosecution, turned hostile and did not support the prosecution case. PW3 is the driver of the van and he did not state anything about any of the accused. PW4 was then working as Head Clerk in the Court and he was examined to speak about the requisition given by the Police Officer to send the counterfeit notes to the expert and also about the production of the Material Objects. PW5 was the Inspector who had arrested the accused and other persons and recovered the counterfeit notes and he has examined PWs 1 to 3. According to him, one Rajagopal, Inspector of Police took up further investigation in the case and on 19.12.95, he examined PW4 and after getting the report, filed the charge sheet.

The learned Counsel for the Revision Petitioner first contended that there is no evidence to show that the Revision Petitioner had knowledge that the currency was counterfeit and that he had intention to use the same. The evidence of PW1 is only about the recovery of the counterfeit notes from the Revision Petitioner as well as others. PW2 admittedly turned hostile and did not support the prosecution case. A bare reading of Section 489(c) would clearly indicate that there should be sufficient knowledge to the accused and he should have intention to use the same. Mere possession will not attract the offence u/s 489(c) IPC. In support of the contention, the learned Counsel for the Appellant relied on M. Mammutti Vs. State of Karnataka, , wherein it has been held that there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note.

The Revision Petitioner also relied on 1987 LW (Crl) 304 that in fact, a reading of Section 489(c) would clearly disclose that for proving the offence u/s 489(c) IPC, possession of couterfeit note should be accompanied by the knowledge that the notes are forged and the intention to use the same as genuine.... The mere fact of possession would not be sufficient to prove knowledge and intention as required by Section 489(c) IPC. There should be some more circumstances from which conclusion can be safely drawn that such knowledge and intention were existent in the minds of the accused persons. This decision is applicable to the case on hand.

The learned Counsel for the Revision Petitioner next contended that PW5, who registered the FIR alone had investigated the case and he had examined the material witnesses and as such, the investigation is vitiated and on this ground also, the Revision Petitioner is entitled to an order of acquittal. However, the learned Government Advocate contended that although PW5 registered the FIR, he had examined some of the witnesses and ultimately another Inspector alone examined PW4 and later filed the charge sheet.

The learned Counsel for the Revision Petitioner relied on Bhagwan Singh Vs. The State of Rajasthan, that investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the FIR as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case.

It has also been held in 1985 LW (Crl) 336 that the Sub-Inspector of Police, after giving the complaint/FIR himself investigating the case, filing the charge sheet, and deposing before the court- illegality in procedure.

Reliance is also placed on 1997 SCC (Crl) 257 that we have also noted another disturbing feature in this case. PW3, Sri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses u/s 161 Code of Criminal Procedure. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

It has also been held in 1997 (2) LW (Crl) 751 that though there is no specific statutory bar, the Supreme Court is inclined to take a consistent view at least as a matter of healthy practice, that it would not be conducive to fair and impartial investigation for the complainant himself to be an investigating officer.

The learned Counsel for the Revision Petitioner also relied on an unreported decision of this Court in Crl.R.C. 272/97 dated 30.1.2001 reiterating the very same principles referred to above. If the principles are applied to the case on hand, it is evidently clear that PW5 alone registered the case and he was the officer, who arrested the Revision Petitioner and effected recovery also. Apart from that PW5 was the officer who had examined all the material witnesses in this case and the successor had examined only formal witnesses and laid the charge sheet, considering the fact that PW5 had registered the FIR and had investigated the case. It vitiates the trial and on this ground also the Revision Petitioner is bound to succeed. It is also necessary to state that the underlying principle is that if a person who registered the case was empowered to investigate the case, naturally he would try to create records and there may not be a fair and impartial investigation. Only to avoid that, a consistent view has been taken that a person who had registered the case should not normally investigate the case and it should be investigated by some other officer for a fair and impartial investigation. Under the circumstances, I am of the view that both the courts below have erred relating to the position of law. Apart from that the ingredients u/s 489(c) IPC are not attracted and as such the prosecution has not proved the charge against the Appellant.

For the reasons stated above, the revision is allowed and the Revision Petitioner is found not guilty of the offence u/s 489(c) IPC and the conviction and sentence imposed on him by the courts below are set aside and he is acquitted. The fine amount, if any, paid by him shall be refunded to him.