IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 CRL.A.No. 473 of 2002() ----------------------- SC.221/1998 of SESSIONS COURT, KASARAGOD .................... APPELLANT/COMPLAINANT: -------------------------------------------- STATE OF KERALA REP. DEPUTY SUPERINTENDENT OF POLICE, CBCID, CSF, CALICUT. BY PUBLIC PROSECUTORSMT. PUSHPALATHA RESPONDENT(S): RESPONDENTS/ACCUSED: -------------------------------------------------------------------- 1. THRIKKANNAD RAMESHAN, S/O. LAKSHMANA RAO, LAZMI NIVAS, MUTHAPPANARKAVU, KANHANGAD. 2. T. SURESH, S/O. LAKSHAMANA RAO, LAXMI NIVAS, MUTHAPPANARKAVU, KANHANGAD. R1 BY ADV. MR.M.THAMPAN R2 BY ADV. MR.SURESH KUMAR KODOTH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON 1/04/2009 DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.473 OF 2002 () ----------------------------------- Dated this the 1st day of April, 2009 J U D G M E N T Challenge in the appeal is against the judgment of acquittal rendered in favour of the respondents/accused (A1 and A2), who had been prosecuted for the offences punishable under Section 489(B) and (C) read with Section 34 of the Indian Penal Code by the Sessions Judge, Kasaragod. The above respondents with four others, altogether six accused, were chargesheeted by the Deputy Superintendent C.B.C.I.D., (CFS), Calicut for the above offences. The respondents in this appeal, A1 and A2, were initially not available for trial and as such the case against them had been split up, and the trial proceeded against the other accused, A3, A4 and A5 in S.C.No.65/1996 before the Sessions Court, Kasaragod. Though the trial court convicted two of the above accused A4 and A5, acquitting the other accused, A3, for the offence under Section 489 (C) the IPC, this Court in CRL.A.473/02 2 Crl.A.No.741/1998, set aside the conviction of the above accused A4 and A5 and they were acquitted of the offences charged. The respondents in the present appeal, who together faced the trial, separately, in S.C.No.221/1998, had pleaded not guilty to the charges, and the learned Sessions Judge, after appreciating the materials tendered in the case, found them not guilty and acquitted them of the offences. Against that judgment of acquittal passed in favour of respondents (A1 and A2), the State has come up with this appeal. 2. The short facts necessary for disposing the appeal are as follows: PW1, the Superintendent of Central Excise Special Customs Preventive Unit, Kanhangad, while on patrol duty on 16.10.1989, at Kanhangad South Region, found A1, a customs suspect standing beside the road near the Government High School, Kanhangad. A1 was detained and a search over his person was conducted, suspecting him of concealing customs goods. Search led to detection of 16 American dollars and one Saudi Riyal as kept concealed by A1. Since the currency notes CRL.A.473/02 3 were suspected to be counterfeited notes, PW1 arrested the accused and seized the notes, preparing Ext.P1 seizure mahazar. Preliminary enquiry conducted by PW1 over the detection of the counterfeit notes from A1, on his questioning, disclosed that he had received the notes from the 2nd accused, his brother, who in turn got it from the 3rd accused, and the 3rd accused, from the 4th accused. Since PW1 was not empowered to register a crime and proceed with an investigation relating to an offence involving counterfeit notes, the custody of A1 was handed over to the local police along with the counterfeit notes and the mahazar prepared over its seizure. PW8, the Head Constable attached to Hosdurg Police Station received the custody of the 1st accused and the contraband seized and registered the crime for the offences punishable under Section 489 (B) of the IPC against the 1st accused. Ext.P7 is the F.I.R. prepared over the registration of the crime. Since the investigation of the crime involving counterfeit notes was conducted by the C.B.C.I.D., (CFS), the crime was reported to that agency, which took over the investigation. The involvement of the other accused, A2 to A6, CRL.A.473/02 4 being disclosed by the materials collected in the investigation, they were also implicated as co-accused with A1 in the crime. After completion of the investigation, charge was laid against all the accused for the offence punishable under Section 489 (B) and (C) read with Section 34 of the IPC. 3. So far as the present appeal, to examine the merit of the judgment of acquittal passed in favour of respondents, A1 and A2, challenged by the State, the materials produced in the trial proceeded against them in S.C.No.221/1998 have to be examined. Prosecution had examined PWs.1 to 12, got marked Exts.P1 to P16 and identified MO1 series and MO2 to prove his case. The defence had got exhibited a portion of the 161 statement of the prosecution witness PW3, which is marked as Ext.D1. The learned Sessions Judge, after appreciating the materials tendered, found that the prosecution had failed to prove its case for any of the offences imputed against the accused, both of them. 4. I heard the learned Public Prosecutor and also the CRL.A.473/02 5 learned counsel appearing for the respondents. The main ground canvassed by the Public Prosecutor to assail the acquittal passed in favour of the respondents/accused is that the learned Sessions Judge had misappreciated the evidence and went wrong in not placing reliance on the evidence of the expert, which established that the foreign currency notes allegedly seized from the possession of A1 were counterfeit notes. The sworn testimony of the official witnesses, who were involved in the search were not given due weightage by the learned Sessions Judge, and their evidence inculpating the accused was brushed aside without sufficient and convincing reasons, is the submission of the learned Public Prosecutor. The acquittal of the accused, A1 and A2 has resulted in miscarriage of justice and it is liable to be interfered with, is the further submission of the learned Public Prosecutor. On the other hand, the learned counsel for the respondents submitted that no interference with the judgment of acquittal passed in their favour is called for, where the prosecution had miserably failed to bring in any incriminating circumstances leave alone proof to sustain the charges levelled against them. CRL.A.473/02 6 According to the learned counsel, even the evidence of the expert, PW12, examined by the prosecution to prove that the currency notes allegedly seized from the possession of A1 and produced in the case are counterfeit notes, would indicate in unmistakable terms that there was no material to form a conclusive opinion that the notes are counterfeit. Where evidence is lacking to show that the notes are fake or counterfeit notes, the substratum of the prosecution case set up against the accused is shattered and the charges imputed against the accused must invariably fail. Further more, it is submitted the evidence of PW1, who, according to the prosecution, seized the contraband notes from A1, that of PW2, his subordinate, and PW3, an attestor to Ext.P1 mahazar prepared over the seizure of the notes, was found not creditworthy by the Sessions Judge taking note of the contradictions in the evidence and also the association which PW3 previously had with PW1, the Detecting officer. PW3 was found to be a chance witness and his testimony of witnessing the seizure was rightly and correctly found by the learned Sessions Judge as unreliable. So, after carefully scrutinizing CRL.A.473/02 7 of evidence in the case and appreciating the facts and circumstances involved, it is submitted by the learned counsel, the learned Sessions Judge arrived at the conclusion that there is no iota of evidence to prove the guilt of the accused for any of the offneces imputed and, on such conclusion, they had been acquitted. 5. I have perused the records of the case. I find considerable force in the submission made by the learned counsel for the accused that the prosecution had failed to lead any cogent and convincing evidence to establish the guilt of the accused and the learned Sessions Judge was perfectly justified in passing a judgment of acquittal in their favour absolving them of the offences imputed. Whatever be the worth of the evidence of PWs.1 and 2, the Customs officials as to seizure of MO1 series and MO2 from the possession of A1, after a search conducted over his person on having suspicion of concealing customs goods, the prosecution case levelled against the accused for the offences relating to counterfeit notes can succeed only if it is established that the notes seized CRL.A.473/02 8 from his possession were fake or counterfeit. The notes, during investigation, had been sent to Nasik Currency Note Press and the expert who examined them had given a certificate that they are not genuine American Dollars and Saudi Riyal. Another expert from the press was examined to prove that certificate as PW.12. He had given evidence that the expert, who gave the certificate on the American Dollars and Saudi Riyal (MO1 series and MO2), nor the witness, had any expertise to express any definite opinion on foreign currency notes as none of them had undergone any training over such notes. PW.12 candidly admitted that he had no expertise or training to express an opinion over the genuineness of foreign currency notes. He would state that Federal agencies and Scientific experts in the respective countries, who had expertise after having training, alone, can give an expert opinion in the matter. So the production of the certificate issued from the Nasik Press that MO1 series and MO2 are not genuine, but fake, does not in any way, assist the prosecution since it has been shown that the experts who issued the certificate had no training and expertise to detect CRL.A.473/02 9 fake foreign currency notes. Where the prosecution had failed to prove that MO1 series and MO2 are fake or counterfeit notes, it cannot salvage the case set up against the accused, based on the allegation of possessing and transacting counterfeit foreign currency notes. Seizure of the notes from the possession of A1 has not been established by convincing evidence is another circumstance which weighed with the learned Sessions Judge, along with its failure to show that the notes produced are counterfeit notes, to conclude that the prosecution has not proved its case set up against the accused. The acquittal passed in favour of the accused in such circumstance, cannot be found fault with. As already indicated, three of the other accused involved in the crime, also, who had undergone trial separately, stand absolved of the charges imputed against them, one by the trial court and the other two by the judgment passed by this Court, in appeal reversing the conviction passed against them by the trial court. The records of the case would show that if at all any worthmentioning incriminating circumstance was alleged that was only against A1, and the others had been roped in without CRL.A.473/02 10 producing any reliable material. The case set up against A1 also, from whose possession the notes are alleged to have been seized, has not been established by any convincing legal evidence. The acquittal of the respondents, A1 and A2, in the proved facts and circumstances of the case, does not call for any interference. The appeal is devoid of merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.A.NO.473 OF 2002 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 1st April, 2009