IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 CRL.A.No. 557 of 2000(B) ------------------------ SC.203/1990 of SESSIONS COURT, KOLLAM .................... APPELLANTs: ACCUSED 4 & 8: --------------------------------------------- 1. VISWANATHAN, S/OKUMARASWAMY ACHARI, HOUSE NO.137, WARD NO.17, MELERADHAVEEDHI, VADASSERI VILLAGE, NAGARCOIL. 2. DAVEEDU CHELLAPPAN, KANDIYOOR KONATHUVARA VILAKATHU PUTHEN VEEDU, KULANGARA MURI, KULATHUMMAL PAKUTHI. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.B.S.SWATHY KUMAR RESPONDENT/COMPLAINANT:: ------------------------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTORSRI.AMJETH ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 557 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2008. Judgment This appeal is at the instance of accused Nos.4 and 8 who were tried for offences punishable under Sections 120B and 489 A to D IPC read with Section 34 IPC in Sessions Case No.203/1990 on the file of the Sessions Court, Kollam. The appellants and 10 others were charge sheeted by CB CID, Counter Feit Squad, Thiruvananthapuram after completing investigation in 3 separate crimes registered by Poovar Police in Crime No.87/81, Kattakkada Police in 133/81and Thampanoor Police in Crime No.241/81. The charge sheet was laid before the Judicial Magistrate of Second Class, Neyyattinkara which was later committed to the Court of Sessions for trial. The prosecution case in brief was that accused Nos. 3 to 7 had entered into a criminal conspiracy between February and June 1981 to counterfeit Indian currency notes of Rs.50/- denomination and to use the same as genuine. Pursuant to the said conspiracy, the accused had procured printing blocks and other paraphernalia for the Crl.A.557/2000 2 purpose of counterfeiting. Accused No.3 had procured other materials and accused Nos. 4 to 7 had gone to Madurai and purchased printing machine and paper. The printing machine was installed in the kitchen of the residence of accused Nos. 4 to 6 , who were brothers, bearing door No.137 of Krishnan Kovil Radha Veedhi in Vadasseri Ward in Nagercoil. Accused Nos. 4 to 7 who were brothers had printed the counterfeit notes worth a bout Rs.3 lakhs by the middle of June 1981. The prosecution further alleged that accused Nos. 1 to 12 had possessed the counterfeit notes knowing them to be counterfeit, converted them or attempted to be converted them into genuine currency notes or to use them as genuine in furtherance of their common intention to do so. Specific and separate charges were framed by the court against the accused and read over to them. The prosecution examined Pws.1 to 14 and marked Exts.P1 to P19 and M.O.1 to M.O.10 series on its side. No witness was examined on the side of the defence, though Ext.D1 was marked on their side. Accused Nos. 1 and 9 had died during the pendency of the trial and therefore the charge against them had abated. Since accused No.7 was absconding he did not face trial. The trial court after examining the oral and documentary Crl.A.557/2000 3 evidence on record found that there was no satisfactory evidence against accused Nos.3, 5, 6 and 11. Accordingly they were found not guilty and acquitted. Accused Nos.2, 4, 8, 10 and 12 were found guilty and they were convicted and sentenced. Since this appeal relates to accused Nos.4 and 8 alone, it is not necessary to refer to the sentence awarded to the other accused. Appellant No.1/accused No.4 was found guilty under Sections 489A and D IPC and after hearing him on sentence, the trial court convicted and sentenced him to undergo Rigorous Imprisonment for 7 years each and to pay a fine of Rs.15,000/- each and in default to undergo Simple Imprisonment for 6 months each. It was directed that the substantive sentence of imprisonment shall run concurrently. Appellant No.2/accused No.8 was found guilty under Section 489 IPC. He was accordingly convicted and sentenced to undergo Rigorous Imprisonment for 4 years and to pay a fine of Rs.15,000/- and in default to undergo Simple Imprisonment for 6 months. In this context it may also be mentioned that the appeal preferred by accused No.10 who was convicted and sentenced to undergo Simple Imprisonment for one month and to pay a fine of Rs.5,000/- under Section 489 C had preferred Crl.A.850/2000. The said appeal was Crl.A.557/2000 4 heard and disposed of by a separate judgment. Accused Nos.2 and 12 apparently had not challenged their conviction and sentence under Section 489C IPC, since it has not been brought to my notice that any appeals had been preferred by them against their order of conviction and sentence. As indicated earlier, the case against accused No.4 was that he along with his 2 brothers (accused Nos.5 and 6) had procured the printing block, machine etc. and installed them in the kitchen of their residence and printed the notes of Rs.50/- denomination. The trial court had acquitted accused Nos.5 and 6 after finding that prosecution had not succeeded in proving the charge against them. However the trial court took the view that the evidence adduced by the prosecution with regard to recovery of certain dismantled parts of the printing machine under Section 27 of the Evidence Act was sufficient to hold him guilty. The case of the prosecution was that accused No.4 had taken the dismantled parts of the printing machine, block etc. to M/s. Bhagavathiraja Laithe Works belonging to Pw.6 at and kept them at the backyard of the workshop. But Pw.6 deposed before the court that he did not know who had kept the above machinery at the backyard of his workshop. According to him, the machinery was dumped there Crl.A.557/2000 5 by somebody in a sack. Police had come to the workshop and found it there. When the Police had asked him about the machinery, he had told them that he did not know anything about the same. He further stated that the person who had brought the said machinery to the workshop for repair had never turned down later. But Pw.6 admitted his signature in Ext.P6 mahazar prepared by the Police while effecting recovery/seizure. To a specific query in chief examination as to whether the machinery had been pointed out by anybody at the backyard, Pw.6 answered that Police had only asked him whether he could identify or recognise the same . In cross examination this witness stated that he did not know whether Ext.P6 was prepared either in Malayalam or in Tamil. A perusal of Ext.P6 mahazar with particular reference to the statement made by the accused which allegedly led to the recovery of the machinery will show that the said recovery cannot stand scrutiny under law. Ext.P6(a) statement if translated in English reads thus: “Dismantled portions of the printing machine have been put in a sack and kept at Kottar Bhagavathi Raja Laithe Works for repair” Crl.A.557/2000 6 The statement of the accused had not been recorded in the first place. The statement further indicates that the accused had taken the machinery to the Laithe Works. Having carefully perused Ext.P6 and the evidence of Pws.6 and 13, I am satisfied that accused No.4 cannot be held guilty under Section 489A and D IPC. The evidence of Pw.13 who prepared Ext.P6 mahazar and spoke about the alleged recovery also does not inspire any confidence. Therefore I find considerable force in the contention raised by the learned Senior Counsel that the alleged Section 27 recovery which primarily incriminated accused No.4 ought not have been accepted by the learned Sessions Judge as sufficient enough to hold him guilty. It is pertinent to note that Pw.13 had deposed before the Court that 3 gunny bags containing dismantled parts of the machinery had been recovered in the presence of witnesses and accused No.4 from the backyard of the workshop. He had also described some of the dismantled parts recovered by him from the 3 sacks. In cross- examination Pw.13 admitted that only one of the 3 sacks recovered by him was marked in the case. The prosecution had not explained whatsoever as to what happened to the other 2 gunny bags. It was also not explained as to what happened to all the dismantled parts Crl.A.557/2000 7 which were allegedly recovered under Ext.P6 mahazar by Pw.13. Therefore accused No.4, in my view, is entitled to get an acquittal. The case against accused No.8 was that a huge quantity of counterfeit currency notes of Rs.50/- denomination (4023 nos.) which were found in 40 bundles of 100 each were recovered from a sack at the residence of accused No.8 pursuant to the information furnished by him when he was questioned after his arrest. The prosecution alleged that the notes were recovered from the central hall of the residence, pursuant to the information furnished by him under section 27 of the Evidence At. Pw.13, the Investigating Officer, had prepared Ext.P9 mahazar in which the serial numbers of the entire notes were recorded. Ext.P9 was prepared in the presence of Pw.9 and other witnesses. Pw.9 deposed before court that he had put his signature in Ext.P9. He identified accused No.9 in the court. He further stated that he knew accused No.9 who had been residing 25 meters away from his residence. He also stated that currency notes were kept in a gunny bag and that at the time of recovery accused No.8 was also present. Ext.P9 mahazar was prepared at the courtyard of the residence of accused No.8. It is true that in cross-examination Pw.9 had stated that at the time when he reached the residence of accused No.8, the gunny bag Crl.A.557/2000 8 containing the notes were kept in front of the hall. He further stated that he did not see the Investigating Officer examining the contents of the gunny bag or what was the inside the bag. He had further stated that at the time when he reached the scene of recovery, the mahazar was being prepared and he did not know what had transpired before his arrival. But in this context the evidence of Pw.13 the Investigating Officer has to be considered. The Officer stated that he had arrested accused No.8 at 5.30 p.m. on August 13, 1981 at Kattakkada Junction on the basis of the information gathered by him. When accused No.8 was questioned, he had stated that he had kept 40 bundles of notes and a few other notes inside the house in a gunny bag. The said statement was recorded as Ext.P9(a). It was thereafter that Section 27 recovery was effected. Pw.13 had identified the notes as M.O.6 and the gunny bags as M.O.7 . Learned senior counsel submits that the alleged recovery made by the Police cannot be treated as a Section 27 recovery at all and therefore accused No.8 cannot be held guilty on the basis of the said recovery. Ext.P9(a) statement if translated in English reads thus: “40 bundles of notes and a few loose notes are kept inside the residence where Crl.A.557/2000 9 I have stayed, in a gunny bag that can be handed over” Learned Senior counsel contends that the accused not had stated that “he” had kept the notes inside the house and therefore Ext.P9(a) statement cannot be construed as to mean that he was the author of the same. I am unable to agree. The entire statement read as a whole will undoubtedly convey the meaning that the accused had concealed the notes inside his house. It may be true that the accused had not specifically stated that he had kept the notes inside the house but the statement unambiguously conveys the information as to mean that he had kept those goods inside his house where he had been staying. Learned Senior counsel has invited my attention to the decisions of their Lordships of the Privy Council and the Supreme Court in AIR 1947 PC 67 and AIR 1979 SC 1949 and also of this Court in 1970 KLT 11 and 2006 (3) KLT 429. I am not persuaded to take the view that the evidence let in by the prosecution is not sufficient enough to hold accused No.8 guilty. The evidence of Pws.9 and 13 will clinchingly show that recovery of the notes was effected from the residence of accused No.8 pursuant to the information furnished by him. Ext.P9 contained serial numbers of the entire notes recovered from the Crl.A.557/2000 10 residence of accused No.8. Pw.9 had stated that he had seen gunny bags containing the notes. He had put his signature after understanding what had transpired at the scene of occurrence. The testimony of Pw.9 inspires confidence. He appears to be a trustworthy witness and I do not find any reason to disbelieve the said witness. If the evidence of Pw.9 is read along with that of Pw.13 I have no hesitation to hold that the trial court was justified in holding accused No.8 guilty under Section 489B of the Act . The court had framed charge under Sections 489B and C against accused No.8. But the trial court had found him guilty under Section 489B only. Having rega5d to the nature of evidence adduced by the prosecution against accused No.8, I am satisfied that he is liable to be guilty under Section 489C as well. The specific case of the prosecution is that since it had come out in evidence that he had found in possession of counterfeit notes of the denomination of Rs.50/- (4023 numbers) of counterfeit currency notes in his possession, it cannot be assumed that he was not aware that they were counterfeit since nobody would have kept such a huge quantity in his possession and that too in a gunny bag. Therefore I am satisfied that accused No.8 is liable to be convicted under Section 489B and C as well. Held accordingly. Crl.A.557/2000 11 It is brought to my notice that accused No.8 is in his early 80's because at the time of commission of the offence in 1981 he was 53. Having regard to the peculiar facts and circumstances of the case I am satisfied that interests of justice will be met if the substantive sentence of imprisonment of 4 years imposed on him can be reduced and modified. Learned Public Prosecutor submits that the accused had undergone 356 days imprisonment. The accused was in judicial custody for 34 days. The period undergone by the accused already shall in my view suffice. However he shall pay a fine of Rs.30,000/- in default of payment of which he shall undergo imprisonment for 6 months. Accused No.4 is acquitted. Appeal is disposed of in the above terms. Accused No.8 shall appear before the trial court on February 28, 2008 and remit the fine. If the accused fails to appear before the court and remit the fine the trial court shall execute the default sentence forthwith. A.K. Basheer Judge. an.