IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10/04/2003 CORAM THE HON'BLE MR.JUSTICE P.D. DINAKARAN Criminal Appeal No.433 of1995 and Crl.A.Nos. 436, 437 & 551 of 1995 L.V. Anandan .. Appellant in C.A.No.433 of 1995 K. Hashim .. Appellant in C.A.No.436 of 1995 Janardhanam .. Appellant in C.A.No.437 of 1995 M. Periasamy .. Appellant in C.A.No.551 of 1995 -Vs- State rep. by Inspector of Police C.B.C.I.D. Police Respondent in Madras. .. all C.As. PRAYER: Appeal against the judgment dated 27.4.1995 made in S.C.No.25 of 1993 on the file of the learned III Additional Sessions Judge, Madras. !For Appellant in C.A.No.433 of 1995 : Mr.K. Thennan C.A.No.436 of 1995 : Mr. Mohan For Mr.C. Sreedharan C.A.No.437 of 1995 : Mr.M. Muniratna Naidu C.A.No.551 of 1995 : Mr.A. Thangamani ^For Respondent : Mr.V. Jayaprakash Narayanan Govt. Advocate (Crl.Side) :J U D G M E N T Heard. I - DETAILS OF THE JUDGMENT UNDER CHALLENGE 2.1. For the purpose of convenience, the parties are arrayed as per their rank before the trial Court. 2.2. The appellants in these appeals are fourth, second, third and first accused respectively in S.C.No.25 of 1993 on the file of III Additional Sessions Judge, Madras. 2.3. The appellants are convicted and sentenced by judgment dated 27 .4.1995 in S.C.No.25 of 1993, as follows. (i) the first accused therein (appellant in C.A.No.551/95) was convicted for the offences punishable under Sections 120-B r/w 489-A, 489-C and 489-D IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs.5000/-, in default, to undergo two years rigorous imprisonment for the said offence; and also convicted for the offence punishable under Section 489-C IPC and sentenced to undergo five years rigorous imprisonment for the same; and directed both the sentences to run concurrently; (ii) the second accused (appellant in C.A.No.436 of 1995) was convicted for the offences punishable under Section 120-B r/w 489-A, 489-C and 489-D IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs.5000/-, in default to undergo two years rigorous imprisonment for the said offence; and also convicted for the offence punishable under Section 489-D IPC and sentenced him to undergo seven years rigorous imprisonment for the same; and directed both the sentences to run concurrently; (iii)the third accused (appellant in C.A.No.437 of 1995) was convicted for the offences punishable under Section 120-B r/w 489-A, 489-C and 489-D IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs.5000/-, in default to undergo two years rigorous imprisonment for the said offence; and also convicted for the offence punishable under Section 489-C and 489-D IPC and sentenced to undergo five years and seven years rigorous imprisonment for the said offences respectively; and directed all the sentences to run concurrently; and (iv) the fourth accused (appellant in C.A.No.433 of 1995) was convicted for the offences punishable under Sections 120-B r/w 489-A, 489-C and 489-D IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs.5000/-, in default to undergo two years rigorous imprisonment for the said offence; and also convicted for the offences under Section 489-A IPC and sentenced for seven years rigorous imprisonment for the same; and directed both the sentences to run concurrently. II - THE CASE OF THE PROSECUTION - IN BRIEF 3.1. The case of the prosecution, in brief, is stated as follows: On receiving secret information, the investigating officer (PW19) conducted a raid at the house of Rajan Chettiar at No.6, Palaiamman Koil Street, Villivakkam, Chennai, between 1.30 pm and 3.00 pm on 3.8.19 82. During his search, he recovered eight bundles of counterfeit US Dollars of 20 denomination (MOs.4 to 11), under Mahazar (Ex.P1) in the presence of one Thiruvengadam (PW3). 3.2. Immediately, a complaint was lodged which was registered as FIR (Ex.P28) in Crime No.32 of 1982 on the file of Inspector of Police, CBCID, Madras - 4. 3.3. Based on the information furnished by Rajan Chettiar, P.W.19 proceeded to Golden Cafe lodge at Poonamallee High Road, Chennai, and reached the lodge at 4.30 p.m. on 3.8.1982, conducted a search at Room No.72, in the presence of one P.S.Kumar (P.W.4), the Manager of Golden Cafe Lodge and arrested the first and fourth accused and recovered three bundles of counterfeit US Dollars of 20 denomination (MO14) under Mahazar (Ex.P2) in the presence of PW4. 3.4. On the basis of the confessional statement obtained from the first accused (Ex.P29), P.W.19 proceeded to Canara Timber Corporation, No.176, Sydenhams Road, Periamet, Chennai, a shop owned by Ravindran (P.W.1), and recovered five bundles of counterfeit US Dollars of 20 denomination (MO1 series) from PW1, under Mahazar (Ex.P30) in the presence of Thirumal and Jain. 3.5. From Canara Timber Corporation, P.W.19 proceeded to Iyyappa Lodge at Hunters Road, Vepery, Chennai, and reached there at 6.30 p.m. where he recovered six bundles of counterfeit US Dollars of 20 denomination from the second accused, under Ex.P31 and arrested the second accused. 3.6. Thereafter, P.W.19 proceeded to Vasantham Press at No.96, Portuguese Church Street, Chennai, owned by the third accused for further investigation. On the way, P.W.19 arrested Rajendra Menon (PW2), on being identified by the first accused, near Padmanabha Theatre bus stop and while searching P.W.2, P.W.19 recovered 85 Nos. of counterfeit US Dollars of 20 denomination (MO3 series) under Mahazar (Ex.P32) in the presence of Thirumal and Jain. 3.7. Then, P.W.19 proceeded to Vasantham Press at No.96, Portuguese Street, Chennai, owned by the third accused, and since it was late night on 3.8.1982, he could not conduct any search in the said Press and therefore, he arrested the third accused and sealed the premises of Vasantham Press. 3.8. On 4.8.1982, based on the confession of the first accused, P.W.19 proceeded to RJVA press at No.27, Balakrishna Mudali Street, Vyasarapadi, Chennai, owned by one Anjana Devi, conducted a search and recovered printing inks in green, yellow, light green, and light yellow colours, and printing blocks (MOs.35 to 42) under Mahazar (Ex.P33) in the presence of Anjana Devi, whose signature in the Mahazar (Ex.P33 ) was identified by P.W.6, the husband of Anjana Devi. 3.9. Concisely, Rajan Chettiar was arrested at 3.30 p.m. on 3.8.1992 at No.6, Palaiamman Koil Street, Villivakkam, Chennai; the first and fourth accused were arrested at 4.30 pm at Room No.72, Golden Cafe Lodge, Poonamallee High Road, Chennai; Ravindran (P.W.1) was arrested at Canara Timber Corporation, No.176, Sydenhams Road, Periamet, Chennai, owned by him, at 6.00 pm on 3.8.1982; the second accused was arrested at Room No.13, Iyyappa Lodge, Hunters Road, Vepery, Chennai, owned by P.W.7, at 6.30 pm on 3.8.1982; Rajendra Menon (P.W.2) was arrested near Padmanabha Theatre bus stop, Chennai, at about 7.30 pm on 3 .8.1982; and the third accused was arrested at Vasantham Press, No.96 , Portuguese Church Street, Chennai, at late night on 3.8.1982. 3.10. Rajan Chettiar, the first accused, the fourth accused, P.W.1, the second accused, P.W.2 and the third accused were produced before the Magistrate on 4.8.1982 and remanded to judicial custody till 10.8 .1982. 3.11. On 11.8.1982, PW19 examined Chinnaiah (P.W.8), an artist and collected further materials, based on which, PW19 conducted another search at Vasantham Press, No.96, Portuguese Church Street, Chennai, on 12.8.1982 at about 1.20 pm and recovered printing inks (MOs.23 and 24) under Mahazar (Ex.P7) in the presence of P.W.12. 3.12. In continuation of the investigation, P.W.19 conducted a search at about 4.00 p.m. on 17.8.1982 in the house of the second accused at No.23A, Bhavani Nagar, Red Hills, Chennai, and recovered printing blocks etc. (MOs.43 to 54) under Mahazar (Ex.P34) in the presence of Reddy and K.K.Arumugam. 3.13. At 6.30 p.m. on the same day (17.8.1982), PW19 conducted another search in the house of Rajan Chettiar at Villivakkam, Chennai, and recovered Spectacle pouch and certain incriminating receipts in the pouch (MOs.55 and 56 respectively) under Mahazar (Ex.P35) in the presence of M.A.Kadar and Reddy. 3.14. On 20.8.1982, the confessional statements of P.Ws.1 and 2 ( Exs.P20 and P23 respectively) under Section 164 Cr.P.C., were recorded by P.W.17, based on which, P.Ws.1 and 2 were pardoned, by an order dated 5.10.1983 passed under Section 306 Cr.P.C. by P.W.18 (Exs.P27 and P26 respectively). 3.15. Accordingly, FIR in Crime No.32 of 1982 was filed against seven accused initially, namely the accused/appellants herein, Rajan Chettiar, Ravindran (P.W.1) and Rajendra Menon (P.W.2); but, since Rajan Chettiar died even before the framing of charges, the complaint against him got abated and Ravindran (P.W.1) and Rajendra Menon (P.W.2 ) were treated as approvers, as per Exs.P27 and P26 respectively. III - CHARGE SHEET 4. Based on the material evidence recorded and collected by the investigating officer (P.W.19) in the above crime, a final report was filed on 19.4.1985. However, the charges were framed only on 8.11.1993, the translated version of the same reads as follows: The first accused, second accused, third accused and fourth accused were charged: "(1) that the first accused, second accused, third accused and fourth accused, along with deceased Rajan Chettiar and approvers Ravindran and Rajendra Menon, jointly, between May and August 1982, at Villivakkam, Red Hills and Vyasarpadi, Chennai, agreed to do an illegal act, viz., to counterfeit American Dollars of 20 denomination and knowingly performed an act of processing of counterfeit and had in your possession the counterfeit currency notes, knowing the same to be a counterfeit and intending to use the same as genuine, had in your possession machinery, instruments and materials to counterfeit American Dollars of 20 denomination for the purpose of being used, knowing that it was intended to be used for counterfeiting currency note and the same was done pursuant to the agreement and thus you thereby committed an offence punishable under Section 120-B read with Sections 489-A, 489 -C and 489-D, IPC and direct you to be tried on the said charge; (2) that the first accused on 3.8.1982, in continuation of the conspiracy, at No.72, Golden Cafe Lodge, Poonamallee High Road, Chennai, had in your possession 249 counterfeit American Dollars of 20 denomination knowing the same to be counterfeit and intending to use the same as genuine and thereby committed an offence punishable under Section 489-C, IPC and within this Court's cognizance; (3) that the second accused on 4.8.1982, in continuation of the conspiracy, at RJVA Press, No.21, Balakrishna Mudali Street, Vyasarpadi, Chennai, had in your possession blocks for printing counterfeit US Dollars of 20 denomination and thereby committed an offence punishable under Section 489-D, IPC and within this Court's cognizance; (4) that the third accused on 3.8.1982, in continuation of conspiracy, at Room No.13, Iyyappa Lodge, Hunters Road, had in your possession 603 counterfeit US Dollars of 20 denomination knowing the same to be counterfeit and intending to use the same as genuine and thereby committed an offence punishable under Section 489-C, IPC and within this Court's cognizance; (5) that the third accused on 17.8.1982, in continuation of conspiracy, at Door No.23A, Bhavani Nagar, Sengunram, had in your possession important materials such as negative, block, wooden frame, counterfeit US Dollars of 20 denomination and thereby committed an offence punishable under Section 489-D, IPC and within this Court's cognizance; and (6) that between May 1982 and August 1982, in continuation of the conspiracy, at Vasantham Press, Door No.96, Portuguese Church Street, Chennai, knowingly performed a part of the process of counterfeiting US Dollars 20 denomination and thereby committed an offence punishable under Section 489-A, IPC, and within this Court's cognizance. IV - EVIDENCE RELIED UPON BY THE PROSECUTION 5.1. During trial, the prosecution examined 19 witnesses (P.Ws. 1 to 19), including two approvers (P.W.1 and P.W.2) and the investigating officer (P.W.19), marked 35 documents (Exs.P1 to P35) and produced 5 6 material objects (MOs 1 to 56). 5.2. It is relevant to refer some of the witnesses and material evidence relied upon by the prosecution hereunder. PWs 1 & 2 : approvers who graphically explained the participation of Rajan Chettiar and each one of the accused as well as their role in the commission of offences in question; PW3 : mahazar witness for the recovery of 8 bundles(MOs.4 to 11) from Rajan Chettiar under Ex.P1; PW4 : mahazar witness for the recovery of 3 bundles of counterfeit US Dollars of 20 denomination (MO14 series) from the first accused at Golden Cafe Lodge, Poonamallee High Road, Chennai, under mahazar Ex.P2; PW5 : Cashier of Iyyappa Lodge at Hunters Road, Vepery, Chennai, who deposed that the second accused was staying at Room No.13, Iyyappa Lodge, on 3.8.1982 when PW19 arrested the second accused at 6 pm on 3.8.1982 and identified his signature in the mahazar Ex.P31 for the recovery of 6 bundles of counterfeit US Dollars of 20 denomination from Room No.13, Iyyappa Lodge, Hunters Road, Vepery, Chennai; PW6 : husband of Anjana Devi, owner of RJVA Press at No.27, Balakrishna Street, Vyasarpadi, Chennai 39; PW7 : owner of Iyyappa Lodge, who deposed that the second accused was staying at Room No.13, Iyyappa Lodge, Hunters Road, Chennai, and the visits of the first accused to their lodge to see the second accused; PW8 : artist who was engaged by the first accused for preparing a drawing for printing counterfeit currencies and guided the first accused to approach the printing press, viz. Print Aid at Triplicane, Chennai and stated that the first accused took the balance papers as the Print Aid Press did not print the counterfeit US Dollars properly; PW9 : Manager of the Print Aid Press at No.9, Thagudeen Khanbahadur, Triplicane, Chennai, owned by his mother, who deposed that the first accused along with PW8 met him with a negative of the counterfeit US Dollar in question for printing samples containing White House on one side and the image of Jackson on the other side, and also with regard to the payment made as per the invoice (Ex.P6); PW10 : part time worker in a stationery shop, who deposed that the third accused approached him for cutting papers; PW11 : shop owner at Burma Bazaar, who sold 20 denomination US Dollar to the first accused for a sum of Rs.190/-; PW12 : mahazar witness who spoke about the recovery of inks (MOs.23 and 24 ) from Vasantham Press under Ex.P7; PW14 : an expert who deposed about the usage of inks (Mos.23 and 24) for printing the counterfeit currencies as per the opinion marked as Exs.P9 and P10; PW15 : Court Clerk through whom the prosecution marked Exs.P15 and P16, an affidavit duly certified by Deputy Clerk, US District Court on 9.2.1983 that the 2173 currencies were counterfeit notes; PW16 : an expert who deposed about the report (Ex.P17) that counterfeit US Dollars could be printed at the Vasantham Press; PW17 : The II Metropolitan Magistrate before whom statements under Section 164 Cr.P.C. (Exs.P20 and P23) were recorded from PW1 and PW2; PW18 : The V Additional Sessions Judge who passed a final order under Section 306(1), Cr.P.C. pardoning PWs 1 and 2 by order dated 5.10 .1982 under Exs.P27 and P26 respectively, treating them as approvers; and PW19 : Investigating Officer who deposed about the entire investigation. 5.3. All the accused, in their statements under Section 313 Cr.P.C., pleaded innocence stating that they had been falsely implicated and the defence of the first accused was that the counterfeit US Dollars were printed to use them as toy notes. V - FINDINGS AND DECISION OF THE TRIAL COURT 6.1. Appreciating the material evidence (PWs 1 to 19), documentary evidence (Exs.P1 to P35) and material objects (MOs.1 to 56), the learned III Additional Sessions Judge, Madras, by judgment dated 27.4.199 5 made in S.C.No.25 of 1993, convicted the accused jointly for the offence punishable under Sections 120-B r/w 489-A, 489-C and 489-D, IPC, and sentenced them for seven years rigorous imprisonment, with a fine of Rs.5,000/-, in default, to undergo two years rigorous imprisonment; and independently for the offence punishable under Section 489-C, 489-D, 489-C & D and 489-A, IPC and sentenced them for five years rigorous imprisonment, seven years rigorous imprisonment, five years and seven years rigorous imprisonment, and seven years rigorous imprisonment respectively. The substantive sentences were ordered to run concurrently. 6.2. Hence, the above appeals. VI - CONTENTIONS MADE ON BEHALF OF THE APPELLANTS 7.1. All the learned counsel for the accused took me in detail through the material and documentary evidence on record. 7.2. Except Mr. Mohan, learned counsel for the second accused, other learned counsel appearing for the first, third and fourth accused submitted that they are prejudiced by the error or omission in framing charges 3, 4, 5 and 6, bringing to my notice that, while (a) the third charge is related to the alleged participation of the first accused, the same was framed against the second accused; (b) the fourth charge is related to the alleged role of the second accused, who was arrested at Iyyappa Lodge, Hunters Road, Chennai, the said charge was framed against the third accused; (c) the fifth charge is related to the alleged participation of the second accused for having found in possession of negatives, blocks and other materials for printing counterfeit notes in his house at No.23 A, Bhavani Nagar, Red Hills, Chennai, the said charge was framed against the third accused; and (d) the sixth charge is related to the alleged participation of the third accused and the same was not framed against any particular accused. 7.3. All the learned counsel appearing for the accused/appellants assailed the judgment of conviction and sentence, on the ground of discrepancies and failure on the part of the prosecution to prove the charges beyond all reasonable doubt. 8.1. Mr. Thangamani, learned counsel for the first accused contends that (a) the presence of the first accused at Golden Cafe Lodge, Poonamallee High Road, Chennai, as deposed by PW4, the Manager of Golden Cafe Lodge, is not supported with any documentary evidence to prove that the first accused was occupying Room No.72 at Golden Cafe Lodge and consequently, the seizure of three bundles of US Dollars of 20 denomination (MO14 series) under Ex.P2 is liable to be disbelieved; (b) the evidence of PWs 1 and 2 could not be relied upon for want of corroboration by independent witnesses; (c) the testimony of PWs 1 and 2 against the first accused to the effect that the first accused approached Vasantham Press owned by the third accused through PW2, and thereafter, approached RJVA Press owned by Anjana Devi and then Print Aid Press owned by the mother of PW9, through the artist (PW8), for printing the toy notes, itself would not be sufficient to convict the first accused; (d) non-examination of Gajendran, Ganesa Iyer, carpenter Shekar, who were said to have prepared materials for the printing of counterfeit US Dollars, viz. printing blocks (MOs.35 to 42) and failure to examine Anjana Devi, the owner of RJVA Press, who is nonetheless the wife of PW6, vitiates the case of the prosecution; (e) the testimony of PW1 to the effect that the first accused purchased US Dollar of 20 denomination from one Nassar (PW11), who was having a shop at Burma Buzaar, could not be relied upon, as the said US Dollar of 20 denomination was not produced before the trial Court; and (f) in any event, the explanation offered by the first accused that the counterfeit US Dollars in question were printed only for the purpose of using the same as toy notes and they were not circulated among the general public, was not properly appreciated by the trial Court. 8.2. Mr. Mohan, learned counsel appearing for the second accused, in addition to the contentions raised by the learned counsel for the first accused, contends that (a) no specific role of the second accused was deposed by PWs 1 and 2 , except that the second accused was accompanying the first accused, during the alleged commission of offence; (b) in the absence of any evidence as to the active participation by the second accused, it may not be safe to convict the second accused for the offence under Section 120B r/w 489-A, 489-C and 489-D, IPC, and for the offence punishable under Section 489-D, IPC. In this regard, reliance was placed on the decision in STATE OF TAMIL NADU v. NALINI reported in AIR 1999 SC 2640 (Rajiv Gandhi assassination case - paras 599 and 600); (c) while PW1 would depose that the second accused came to the timber mart of PW1, when Rajan Chettiar and the first and fourth accused were brought by PW19 to the timber mart of PW1, PW19 would, in contra, depose that the second accused was found at Iyyappa Lodge, Hunters Road, Vepery, Chennai; and the above contradiction renders the very presence of the second accused at Iyyappa Lodge and the seizure of six bundles of US Dollars of 20 denomination from the second accused, under mahazar Ex.P31, at Iyyappa Lodge unbelievable; (d) in any event, since the six bundles of US Dollars of 20 denomination said to have been seized from the second accused, under mahazar Ex.P31, were not produced before the Court, the seizure of the same from the second accused could not be accepted; (e) even though the case of the prosecution was that when PW19 was proceeding to Vasantham Press owned by the third accused along with Rajan Chettiar, the first and fourth accused, PW1 and the second accused from Iyyappa Lodge, arrested PW2 on identification by the first accused and on searching PW2, recovered American Dollars of 20 denomination - 85 currencies (MO3 series), under mahazar Ex.P32, in the presence of Thirumal and Jain, the failure to examine the said Thirumal and Jain creates a serious doubt with respect to the recovery of said 85 Nos. of US Dollars of 20 denomination under Ex.P32; (f) when the prosecution came out with a specific case that printing blocks (Mos.35 to 42) were recovered from RJVA Press, owned by one Anjana Devi under mahazar Ex.P33, no reason was put fourth by the prosecution for not implicating Anjana Devi, owner of RJVA Press as an accused, and hence, the recovery of printing blocks (Mos.35 to 42), which were said to have been used for the commission of the above crime, could not be believed; (g) similarly, no explanation was offered by the prosecution for not implicating PW8, the artist who designed US Dollar of 20 denomination and PW9, the Manager of Print Aid Press, who printed 4/5 samples of counterfeit US Dollar for prize scheme, in spite of the specific case of the prosecution that both PW8 and PW9 also played considerable role in the commission of offence; (h) as per illustration (b) to Section 114 of the Indian Evidence Act, the evidence of PWs 1 and 2 are unworthy of credit, as the same do not corroborate with the material evidence. In this regard, reliance is placed on the decisions BHUBONI SAHU v. THE KING reported in AIR (36) 1949 Privy Council 257, and NARAYAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA reported in 2000 AIR SCW 3314; (i) there was no evidence to the effect that the second accused entered into any agreement with the other accused to commit the offence and assuming that there was any such agreement due to his conduct of accompanying the first accused, as deposed by PWs 1 and 2, absolutely there is no evidence that the second accused had either actively participated or committed any act, besides such alleged agreement; and consequently, the prosecution failed to prove their case for the offence under Section 120-B IPC, for want of link in the chain to prove the alleged offence beyond all reasonable doubt; (j) the affidavit dated 9.2.1983 sworn by the Special Agent, United States Secret Service, Honolulu Field Office, Honolulu, Hawaii, which was marked as Ex.P16, could not be looked into, as the same was not marked by the person who had sworn the affidavit, inasmuch as the Court Clerk who marked Ex.P16 is not competent to mark the same, as the said Ex.P16 could not be treated as Court property. In