IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 CRL.A.No. 2084 of 2003 ------------------------------- SC.319/1998 of ADDL. SESSIONS COURT (ADHOC NO.II), TRIVANDRUM ......................................... APPELLANT(S): ACCUSED NO.1 & 2: --------------------------------------------------- 1. SARACHANDRA DAS @ PRAKASH, AGED 35 YEARS, S/O. AMALA DAS, AGNES VILLA, CHAVADI, MOTTAVILA, KANJIRAMKULAM VILLAGE, THIRUVANANTHAPURAM. 2. YESUDASAN @ RAJENDRAN, AGED 41 YEARS, S/O. ISSAC NADAR @ CHELLAPPAN NADAR, CHAVADI KUTTIPUZHATHARIKATHU PUTHEN VEEDU, KANJIRAMKULAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.S.VASAVAN PILLAI RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.2084 OF 2003 ------------------------------ Dated this the 12th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge Fast Track (Adhoc)-II, Trivandrum in S.C.No. 319/1998. Accused Nos.1 and 2, who had been convicted under Section 489 C of the Indian Penal Code and sentenced to undergo R.I for three years each and to pay a fine of Rs.10,000/- each, had come up in appeal against the decision of the court below. 2. The points that arise for determination in the appeal are: (1) whether there are sufficient materials to hold the accused guilty under Section 489 C of the IPC (2) In case of guilt, what is the proper sentence? 3. Points: Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellants would submit that materials are lacking in this case for a conviction under Section 489 C and therefore, they must be acquitted. It is the case of the prosecution that on 22.12.1990 accused Nos.1 and 2 were found in possession of : 2 : CRL.A.NO.2084 OF 2003 60 numbers of ten rupee forged currency notes and 59 numbers of ten rupee forged currency notes respectively. It is alleged that those notes were obtained by accused Nos. 1 and 2 from accused No.3, who in turn obtained the same from accused No.4. Or in other words, according to the prosecution the real source was accused No.4 who in turn gave it to accused No.3. 4. The court below held that there is no evidence to connect accused Nos. 3 and 4 and therefore found them not guilty. Accused Nos. 1 and 2 were found guilty. It has to be stated that from the materials available the notes produced before the court below and marked as Mos 1 to 1I19 notes were proved to be forged notes. It is clear from the report submitted by the Nasik press. Now in order to convict a person under Section 489 C of the IPC, the necessary ingredients to be established are that: (1) The note is a currency note or bank note(2) It was forged or counterfeit (3) The accused was in possession (4) In lending to use the same as genuine and (5) At that time he possessed, he knew or had reason to believe it be forged or counterfeit notes. The word : 3 : CRL.A.NO.2084 OF 2003 known or having reason indicates that there must be mens-rea to possess such counterfeit notes. It is the case of the prosecution that PW4, the then Sub Inspector of Police, got an information that there was some quarrel going on in an arrack shop between the accused and others and that, he got the information that they were possessing fake notes. He proceeded to the spot, searched them and found sixty ten rupee notes with A1 and 59 ten rupee notes with A2. Thus, notes, according to them, were fake currency notes. They were seized and produced before the court. The independent witnesses, who had been examined, had turned hostile to the prosecution. The solitary evidence available in this case is that of PW4- the Sub Inspector of Police. The officers of the CBCID, who had conducted the investigation, filed petitions to implicate A3 and A4, but it was found by the court that there is no evidence to connect them. 5. PW4 had deposed before the court that while he was on patrol duty and when he reached Chavadi junction, he got the information that two persons were attempting to exchange fake currency notes and that they had been apprehended. : 4 : CRL.A.NO.2084 OF 2003 PW4 reached the place, interrogated A1 and A2 and on examination, found the currency notes in the custody of them. They were arrested and produced before the court etc. The material objects were marked as Mos 1 to 119. He had been cross examined at length. According to him, when he went to the shop there were large number of persons inside and outside the shop. It has to be remembered that the case was detected in December 1990 and the witness was examined on 23rd July, 2003. There are some minor contradictions here and there and especially it has to be given allowance for the reason that after retirement, he had suffered some paralytic problems. When unwell, a person who is examined after 13 years may not be able to precisely say what exactly had transpired. Minor exaggerations are making the evidence of the witness more trustworthy as noted in so many decisions. The S.I of Police had absolutely no axe to grind against the accused. The pin pointed suggestion put to the witness is that there was some trouble between the persons who were conducting the shop and the public therein and it was at the instance of the contractor, these people had been falsely : 5 : CRL.A.NO.2084 OF 2003 implicated. But in the 313 statement, they would say that when they had gone for the purpose of drinking, they saw the employees of the shop mixing drainage water to the arrack which irritated them and there was a quarrel. So, there is nothing like the influence of the contractor behind this case. Now the factum of knowing or having reasons to believe is very important as far as the offence under Section 489 C is concerned. 6. The learned counsel for the appellant cited before me a case reported in Sivasankaran v. State of Kerala (1989 (1) KLT SN 75 page 48) where this Court had laid down the ingredients to be satisfied in a case under Section 489 C. It was a case where a solitary note was found out. When a person is in possession of one forged note along with other notes, one cannot attribute that he knows that particular note is a forged one or not. Here from the custody of the accused 119 ten rupee currency notes of forged nature were seized. There was not even a solitary genuine note. It has to be remembered that these people had gone to the arrack shop for the purpose of drinking. It was in that process the quarrel : 6 : CRL.A.NO.2084 OF 2003 ensued. So, it has to be stated that they were in possession of 119 fake notes consciously and they had the clear intention to part with that cash after drinking especially for the reason that there was no other notes available with them at that point of time. Therefore, it has to be held that the accused were found in possession of counterfeit notes knowing or reason to believe that it was counterfeit note and their possession was with the intention to use it. Therefore, all the ingredients necessary under Section 489 C stand established in this case. 7. Now turning to the question of sentence. It has to be stated that almost two decades are over and even at the time when the accused were questioned under Section 313 of the Cr.P.C, the first accused submitted that there are no other members to look after his family and that his children will become destitute. A2 has submitted that his daughter was suffering from tumor and her eyes had been removed. His wife is an asthmatic patient. He also had submitted that he is residing in a property given by the Government which is having an extent of 4 cents. So, the materials available : 7 : CRL.A.NO.2084 OF 2003 would show that both the accused are in a pathetic state of affairs. It may not be justifiable for them to deal with the counterfeit notes but it is the circumstances which make the people mad or bad. After 20 years, I feel, it may not be proper to impose heavy imprisonment on them and if at all the correctional procedure is the intention, it should have little effect after a lapse of two decades. 8. Therefore, I find that the sentence of imprisonment can be reduced and the fine can be increased thereby making them liable for the offence. They had already undergone three months in judicial custody during the pre-trial stage. I feel, it will be a sufficient punishment for them as far as imprisonment is concerned. But I feel the fine amount of Rs.10,000/= can be enhanced to Rs.30,000/= and in default to undergo imprisonment for two months. 9. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 489 C of the IPC is sustained. 2. The accused are sentenced to undergo 3 months : 8 : CRL.A.NO.2084 OF 2003 imprisonment each and to pay a fine of Rs.30,000/= each (inclusive of Rs.10,000/= already paid) and in default of which to undergo further imprisonment for a period of two months. Since they had already undergone pre trial custody of three months, they need not undergo any further imprisonment in this case in relation to the same. But if they fail to pay the amount of fine on or before 31.10.2009, the lower court shall execute the default sentence. M.N. KRISHNAN, JUDGE cl : 9 : CRL.A.NO.2084 OF 2003 : 10 : CRL.A.NO.2084 OF 2003