BAIL SLIP The Appellant/Accused-3 viz., Appan, S/o. Krishnan, was directed to be released on bail as per the order of this court dated 5.5.2004 and made in CRL MP No.5911 of 2004 in Crl Appeal No.672 of 2004 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2011 CORAM THE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMY CRIMINAL APPEAL NO.672 OF 2004 Appan .. Appellant/Accused-3 Vs. State rep. by Inspector of Police, C.C.Wing, C,B,C.I.D, Chennai .. Respondent (Crime No.2204/91) R-1, Mambalam Police Station, Chennai This criminal appeal is against the judgment of the learned Additional Sessions Judge Cum III Fast Track Judge at Chennai in S.C.103 of 2002 on his file dated 28.04.2004. For Appellant : Mr.S.Ashok Kumar Senior counsel for Mr.K.Shankar For Respondent : Mr.N.Kumanan, Govt. Advocate(crl.side) J U D G M E N T This appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge cum III Fast Track Court at Chennai in S.C.103 of 2002 dated 28.04.2002 convicting the appellant for offence under Secs.489(b) r/w120(b) r/w 109 of I.P.C and to pay a sum of Rs.10,000/- in default to undergo a https://hcservices.ecourts.gov.in/hcservices/ further period of 3 months and to undergo 4 years Rigorous imprisonment under sections 489(c) r/w 120(b) r/w109 of I.P.C and to pay a sum of Rs.10,000/- in default to under go a further period of 3 months. 2. The case of the prosecution in brief is as follows:- (a) On 15.11.1991, at about 05.30 p.m the appellant/accused A3 purchased shoe from Bata Shoe store and gave two 100 rupees note. P.W.1 and P.W.3 salesman and the cashier of the store suspected that there is some difference in the note given by the appellant. P.W.3 cashier went to the bank at the top of the store and verified whether it is a counterfeit note and found it to be counterfeit note and gave complaint to the R.1 Mambalam police station. Thereafter, the police started investigation and came to the finding that the two notes were counterfeit notes. On the information given by the appellant, P.W.7- Sub Inspector, went to the shop of P.W.5 -Mehta and collected four 100 rupees note out of the ten hundred rupee notes given by the apellant to P.W.5. On the same day the appellant was taken to his house and he handed over the note which he had with him. On the same day evening, P.W.4 – wife of the appellant went to the police station voluntarily and handed over two hundred rupees fake note which was in the diary. P.W.4- stated in her evidence that her husband was ex-service men and after his retirement from service they settled in chennai and he was doing steel business and was also taking care of the agricultural business in his village and further stated that the accused A2 in the trial court–Narayana Raja borrowed a sum of Rs.40,000/- from A3 on 31.10.1988. On 24.11.1988 one Muthiah Devar – Accused A1 in the trial court came and borrowed money A3 which he has not repaid regularly and after several attempts made by the them on 13.11.1991 A3 came from his village and told P.W.4 that A1 has given Rs.10,000/- and also told that he will pay the balance soon. P.W.6 is the Mahazar witness who witnessed the arrest of A1 and as well as the seizure of the counterfeit notes. P.W.7- Investigation Officer who has investigated the matter and filed the chargesheet against the accused in Crime No.2204/91 and u/s. 489(c) IPC and filed the final report. (c) The Trial court had framed necessary charges against the accused and had conducted the trial by examining P.Ws.1 to 7 and Exs.P.1 to P.19 and examined D.W.1 and marked exhibits D.W.1 to D.W.4. 3. The present appeal has been filed against all the accused under secs.489(b) r/w120(b) r/w 109 of I.P.C and to pay a sum of Rs.10,000/- in default to undergo a further period of 3 months and to undergo 4 years Rigorous imprisonment under sections 489(c) r/w 120 (b) r/w109 of I.P.C and to pay a sum of Rs.10,000/- in default to under go a further period of 3 months against which the present appeal has been preferred. https://hcservices.ecourts.gov.in/hcservices/ 4. It appears that during the trial accused A1 died and the 2nd accused also died. 5. The case of the prosecution as spoken by the evidence produced on the side of the prosecution is as follows: (a) P.W.1 and P.W.3 are the salesman and cashier of the Bata shoe shop. P.W.2- Arumugam having cycle shop in front of the police station. P.W.4 is the wife of accused A3. P.W.5- Mehta is the business who got money from A3 for selling coal. P.W.6 is the Mahazar witness. P.W.7- Investigation Officer who has investigated the matter and filed the charge sheet against the accused in Crime No.2204/91 and u/s. 489(c) IPC and filed the final report. (b) On 15.11.1991, at about 05.30 p.m the appellant purchased shoe from Bata Shoe store and gave two 100 rupee notes. P.W.1 and P.W.3 salesman and the cashier of the store suspected that there is some difference in the note given by the appellant. P.W.3 cashier went to the bank at the top of the store and verified whether it is a counterfeit notes and found it to be counterfeit notes and gave complaint to the R.1 Mambalam police station. Thereafter, they started investigation and came to the finding that the two notes were counterfeit notes. On the information given by the appellant on the same day he was taken to his house where he handed over the remaining notes which he was in possession. On the same day evening, P.W.4- wife of the appellant went to the police station and handed over two hundred rupee notes which was in the diary. P.W.7- Investigation Officer who has investigated the matter, filed the charge sheet against the accused in Crime No.2204/91 and u/s. 489(c) IPC and filed the final report. 6. When the accused was questioned u/s. 313 Cr.P.C as to the the incriminating circumstances adduced in the evidence of the prosecution witnesses, the accused flatly denied them as false. 7. The Trial court after going through the evidence had entered conviction against the appellant under Secs.489(b) r/w120(b) r/w 109 of I.P.C and to pay a sum of Rs.10,000/- in default to undergo a further period of 3 months and to undergo 4 years Rigorous imprisonment under sections 489(c) r/w 120(b) r/w109 of I.P.C and to pay a sum of Rs.10,000/- in default to under go a further period of 3 months. 8. Heard Mr.S.Ashok Kumar, learned Senior counsel for the appellant and the learned Govt. Advocate (Crl. Side) appearing for the respondent. 9. The learned counsel for the appellant/accused A3 right from the beginning is that the amount has been received from accused A1 from out of which he had paid 200 rupees at the Bata shop. He came to know that it was a counterfeit note only when he was informed by the https://hcservices.ecourts.gov.in/hcservices/ employee of the store. P.W.4 his wife also handed over two hundred rupees voluntarily in the police station which would show that they were not aware of the counterfeit notes. The learned counsel for the appellant would further contend that there is no merits to fix the case against the accused and therefore prays for acquittal of the appellant. 10. The learned Government Advocate Criminal side had also submitted his arguments. He would insist the court that the finding reached by the lower court are proper and are not liable to be set aside. He would support the judgment of lower court in every aspect and he wanted the appeal to be dismissed. 11. After hearing the arguments advanced by both counsel and on perusal of the records, it is seen that P.W.1 and P.W.3 are the salesman and cashier of the shop and the accused A3 from the cash received from A1 had given two hundred rupees not for the shoe he bought from the shop. At that time only he was caught and suspecting the note the cashier went and verified with the bank and later on case was registered. The accused has voluntarily stated that he has given Rs.1000/- to P.W.5 for the coal powder he bought from his shop. Apart from this P.W.4 his wife has given two notes to the police mentioning that those two notes were also received from accused A1. When A3 was in custody P.W.4 had voluntarily handed over the left out amount received from A1. P.W.7 S.I. of Police during the examination he has admitted as follows: "g[yd; tprhuiz bra;jjd; K%yk; mg;g;d vd;gth; 1988 Mz;oy; _ts;spg[j;J}hpy; mtuJ tPl;il tpw;w gzj;jpy; Kj;ijah njthplk; 13 MapuKk;. ehuhazrhkp vd;gthplk; 40 Mapuk; bfhLj;jjhft[k;. gpd;g[ gy tUl';fshf mth;fs; juhky; Vkhw;wp te;jhh;fs; filrpapy; 11/11/91 md;W njjp Kj;ijah njth; U%gha; 10 Mapuk; 100 U%gha; nehl;Lf;fs;bfhz;l fl;L xd;W bfhLj;jhh; mg;nghJ mJ fs;s nehl;L vd;W jdf;F bjhpahJ vd;W g[yd; tprhuiizapy; bjhpe;J bfhz;Ls;shh;/ P.W.4 in her evidence has stated as follows: 31/10/1988 md;W ehuhaz uh$h v';fsplk; 40 Mapuk; gzk; fldhf th';fpdhh;/ 15/11/91 md;W v';fs; tPl;Lf;F nghyprhh; te;jhh;fs;/ vd;Dila fzth; Chpy; ,Ue;J th';fpa gzj;ij. mg;nghJ nghyprhh; vd; tPl;Lf;F te;J me;j lahhpy; ,Ue;J vd;Dila fzth; gzj;ij vLj;J bfhLj;jhh;/ mjpy; vt;tst[ gzk; ,Ue;J vd;W vdf;F bjhpahJ/ ehd; tPl;oy; ,Ue;J ilhpapy; , Ue;j 200 U%gha; ,uz;L 100 U%gha; nehl;Lf;fis gpwF njo ghh;j;jg;nghJ fpilj;jJ mij vLj;Jf;bfhz;L Mh;/1/ khk;gyk; fhty; epiyak; brd;W khiy Rkhh; 5/30 kzpf;F ehd; xg;gilj;njd;/ me;j gzj;ij xg;gilj;Jtpl;L me;j nehl;L ey;y nehl;lh fs;s nehl;lh vd;W bjhpahJ vd;W brhd;ndd;/" From this it is very clear that appellant/accused A3 has no idea about the counterfeit notes. Therefore, the possession of counterfeit notes under section 489(b) is not attracted and therefore, from the evidence of witnesses it is seen that the appellant received these notes from A1 which has been proved by evidence of P.W.4. Hence the https://hcservices.ecourts.gov.in/hcservices/ charge u/s. 489 (b)I.P.C is not proved hence the charge 489 (b) IPC is not made out by the prosecution. The accused is found not guilty u/s. 489 (b) IPC. Therefore, I am of the view that the prosecution has not proved the case beyond reasonable doubts and hence, the appellant is entitled for acquittal. 12. In the result, the conviction and sentence imposed on the appellant by the trial court are set aside and the appellant is acquitted of the charges levelled against him. The bail bond, if any executed by the appellant, shall stand terminated and the fine amount if any paid by appellant is ordered to be refunded to him. Accordingly, this criminal appeal is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpr To 1. The Additional Sessions Cum III Fast Track Judge, Chennai 2. -do- Through The Principal Sessions Judge, Chennai 3. The 17th Metropolitan Magistrate, Saidapet, Chennai 4. The Chief Metropolitan Magistrate, Egmore, Chennai-8 5. The Superintendent, Central Prison, Vellore 6. Inspector of Police, C.C.Wing, C,B,C.I.D, Chennai R-1, Mambalam Police Station. 7. The Public Prosecutor, High Court, Chennai. Crl.A.No.672 of 2004 PKB (CO) RH (11.3.11) https://hcservices.ecourts.gov.in/hcservices/