Partly allowed

Shantappa Moolya v. State by Bantwal Town Police Station

Karnataka HC24 Aug 2022CRL.A/116/2011

Case brief

AI extract

What is this about?

High Court allowed criminal appeals challenging convictions for offences under Sections 489B and 489C of IPC. The court acquitted most appellants due to insufficient prosecution evidence regarding knowledge and possession of counterfeit currency notes, while confirming the conviction of two appellants.

What did the court decide?

Accused Nos. 3 to 6, 8, and 9 acquitted; Appellants 1 and 2 convicted. Bail bonds of acquitted persons cancelled; fines if any deposited refunded.

Shantappa Moolya Vs State by Bantwal Town Police Station — Cheque Dishonour | Karnataka HC (2022)

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R IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL No.209 OF 2011 C/w. CRIMINAL APPEAL No.116 OF 2011

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IN CRL.A. 209 OF 2011:

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BETWEEN:

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JHON KENNET MASCARENHAS @ KENNET, S/O. DEVID MASCARENHAS, AGED ABOUT 27 YEARS, R/AT NEKKILAMANE, NEKKILEDY VILLAGE, PUTTUR TALUK. ... APPELLANT [BY SRI. SANDESH J. CHOUTA, SENIOR COUNSEL FOR SRI. MOHAMMAD NIYAZ S., ADVOCATE]

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AND:

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STATE BY BANTWAL TOWN POLICE STATION, REPT. BY GOVERNMENT ADVOCATE, PROSECUTOR, HIGH COURT COMPLEX BUILDING, BANGALORE. ... RESPONDENT [BY SRI. K.KRISHNA KUMAR, HCGP]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.01.2011/ 18.02.2011 PASSED BY THE II ADDL.S.J., D.K., MANGALORE IN S.C. NO.105/2004 CONVICTING THE APPELLANT/ACCUSED No.5 FOR THE OFFENCE P/U/S 489B AND 489C OF IPC.

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IN CRL.A. 116 OF 2011:

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BETWEEN:

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SHANTAPPA MOOLYA, S/O. LATE RAMA MOOLYA, AGED ABOUT 41 YEARS, R/AT DASAKODIMANE, BALTIHILA VILLAGE, BANTWAL TALUK.

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IBRAHIM, S/O. ABBAS, AGED ABOUT 35 YEARS, R/AT MANNAGUNDIMANE, KOWKRADI VILLAGE, NELLYADI POST, PUTTUR TALUK.

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IBRAHIM @ SADDA @ SAFARI IBRAHIM S/O. HUSSAIN, AGED ABOUT 51 YEARS, R/AT ULLATHI TEMPLE, PUTTUR TALUK.

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MOHAMMED KUNHI, S/O. MOIDEEN, AGED ABOUT 53 YEARS, R/AT BANNANGALAMANE, ILANTHILA VILLAGE, BELTHANGADY TALUK.

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SARFUDDIN @ SARFU, S/O ABDUL HAMEED, AGED ABOUT 28 YEARS, R/AT BOLANTHILAMANE, NEKKILADY VILLAGE, PUTTUR TALUK.

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P.M. HANEEF, S/O. ABBAS, AGED ABOUT 26 YEARS, R/AT HIREBANDADIMANE, ADEKALA PUTTUR TALUK.

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B.IBRAHIM S/O. HASAN KUNHI, AGED ABOUT 37 YEARS, R/AT KODIPPADIMANE, NEKKILEDY VILLAGE, PUTTUR TALUK. ... APPELLANTS

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[BY SRI. SANDESH J. CHOUTA, SENIOR COUNSEL FOR SRI. MOHAMMAD NIYAZ S., ADVOCATE]

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AND:

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STATE BY BANTWAL TOWN POLICE STATION, REPT. BY GOVERNMENT ADVOCATE, PROSECUTOR, HIGH COURT COMPLEX BUILDING, BANGALORE. ... RESPONDENT

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[BY SRI. K.KRISHNA KUMAR, HCGP]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 27.01.2011 PASSED BY THE II ADDL. SESSIONS JUDGE, D.K., MANGALORE IN S.C. NO.105/2004 CONVICTING THE APPELLANTS/ ACCUSED NOS.1 TO 4, 6, 8 & 9 FOR THE OFFENCE P/U/S 489B AND 489C OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the Judgment and Order

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dated 27.01.2011 passed in Sessions Case No.105/2004 by

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the Court of II Additional Sessions Judge, Dakshina Kannada, Mangaluru, whereby accused Nos.1 to 6, 8 and 9

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are found guilty for the offence punishable under Sections 489B and 489C of IPC.

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The case against accused No.7 was split up.

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The convicted accused were sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of 5,000/- each for the offence punishable under Section 489B of IPC and in default of payment of fine, to further undergo simple imprisonment for a period of 6 months. Further, sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of 5,000/- each for the offence punishable under Section 489C of IPC and in default of payment of fine, to further undergo simple imprisonment for a period of 6 months.

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Crl.A. No.209/2011 is preferred by accused No.5 and Crl.A. No.116/2011 is preferred by accused Nos.1 to 4, 6, 8 and 9.

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Heard the learned senior counsel appearing for appellants and the learned HCGP for respondent/State and perused the material on record.

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The factual matrix of the prosecution case as emanated from the records is as under:

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On 31.08.2004, the first informant-P.W.1, the then ASI., District Crime Intelligence Branch [hereinafter referred to as ‘DCIB’ for short], Mangaluru, received a credible information that one person known as Wizard Shantappa [A1] has been dealing in counterfeit currency notes at a place called Daskodi in Balthila village, Bantwal taluk. As such, as per the directions of the Additional Superintendent of Police, on the same day at 3.30 p.m., he proceeded towards Daskodi in his departmental jeep along with his staff and two panchwitnesses. They kept a close watch and noticed two persons viz, accused Nos.1 and 2 coming out of the house of accused No.1-Shantappa. After confirming their identity, they were apprehended and the plastic cover which accused No.1 was holding was searched, wherein two bundles each containing 100 fake currency notes of `100/- denomination were found wrapped in a paper. Similarly, accused No.2 was found in possession of one bundle containing 100 fake currency

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notes of 100/- denomination, kept in his front pant pocket. Further, accused No.1 was also found in possession of genuine currency notes worth 115/- and a mobile phone and accused No.2 was in possession of genuine currency notes worth `70/-. A detailed mahazar as per Ex.P2 was drawn in the presence of panchas viz, P.Ws.4 and 14 and the said fake currency notes were seized. Thereafter, P.W.1 lodged a complaint at Bantwal Town Police Station, as per Ex.P1 which was registered by P.W.13-ASI. On the basis of Ex.P1, a case was registered against accused Nos.1 and 2 in Crime No.134/2004 and FIR-Ex.P10 was dispatched to the jurisdictional Court.

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Accused Nos.1 and 2 were arrested. The further investigation of the case was taken over by P.W.12 viz., C.P.I., Bantwal Circle. On 01.09.2004, he recorded the voluntary statements of accused Nos.1 and 2 marked as Exs.P7 and 8. The said accused volunteered to show accused No.3. On the same day, accused No.3 was apprehended near Boluwar Bus Stop. On search, he was found in possession of 35 counterfeit currency notes of

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100/- denomination. The same were seized under a mahazar-Ex.P3 in the presence of panchwitnesses-P.W.5 and C.W.11. Further, he was also found in possession of genuine currency notes of 100/- denomination and a mobile phone, which were also seized.

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The voluntary statement of accused No.3 was recorded as per Ex.P.9 and he volunteered to show other 5 accused persons involved in the racket. On the same day, at about 9.00 a.m., accused No.3 led P.W.12, his staff and panchas to Nekkiladi Bus Stop, from where accused Nos.4 to 7 were apprehended.

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Accused No.4 was found in possession of 13 counterfeit currency notes of 100/- denomination, accused No.5 was found in possession of 27 counterfeit currency notes of 100/- denomination, accused No.6 was found in possession of 14 counterfeit currency notes of 100/denomination and accused No.7 was found in possession of 11 counterfeit currency notes of 100/- denomination. A mahazar as per Ex.P5 was drawn under which all the counterfeit currency notes were seized in the presence of

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panchwitnesses namely P.W.5 and C.W.11. Further, accused No.3 volunteered to show accused No.8. On the same day, Investigation Officer along with his staff and panchas apprehended accused No.8 from his house situated in Mulki. From his possession 13 counterfeit currency notes of `100/- denomination, which was kept in the cupboard inside the house was seized under a mahzar Ex.P4, in the presence of panchas, P.W.5 and C.W.11.

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On 10.09.2004, at about 5.00 p.m., the Investigation Officer received a credible information regarding the whereabouts of accused No.9, as such, he went to a place called Kalladka in Vittla Junction and apprehended accused No.9, who was in possession of 20 counterfeit currency notes of `100/- denomination. A mahazar was drawn as per Ex.P6 in the presence of panchas namely P.Ws.6 and 11 and the said counterfeit currency notes were seized. The seized notes were sent to FSL for examination and after receipt of FSL Report and after completion of the investigation, charge-sheet was laid against accused Nos.1 to 9.

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Charges were framed against the accused persons for the offence punishable under Section 489B and 489C of IPC for which the accused pleaded not guilty and claimed to be tried.

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In order to bring home the guilt of the accused, the prosecution in all got examined 14 witnesses and got marked 13 documents as well as 16 material objects.

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The trial Court has come to the conclusion that P.Ws.1 to 3, 7 to 9 and 12 in their evidence have clearly deposed that all the currency notes seized from the possession of accused Nos.1 to 6, 8 and 9 are counterfeit currency notes and the said evidence is not denied by the accused persons in their cross-examination. Further observed that the prosecution has examined P.W.15, the Scientific Officer working in FSL., Bengaluru, who has deposed in his evidence that he has examined the currency notes seized in this case and in his opinion, all the notes are counterfeit currency notes and even the said evidence of P.W.15 is also not denied by the accused persons in their cross-examination. It is held that the prosecution has

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proved beyond reasonable doubt that M.Os.1, 2, 9, 11 to 14 and 16 which were seized from the possession of accused Nos.1 to 6, 8 and 9 are counterfeit currency notes.

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The trial Court referred to a decision reported in [1971]1 My.L.J. 508 and observed that, where the accused was found to be in possession of large number of counterfeit currency notes, it gives rise to a presumption that the possession of such notes was for the purpose of trafficking in currency notes. The trial Court held that in this case, the accused persons were found in possession of large number of counterfeit currency notes and there is no explanation by them as to wherefrom they obtained the currency notes in question. The trial Court further held that, the various circumstances leading to the seizure of the counterfeit currency notes in question, the manner in which the accused persons came in possession of these notes are important circumstances to be considered and such notes bearing same serial numbers in such large numbers clearly suggest that the accused intended to use them as genuine.

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The impugned Judgment passed by the trial Court has been assailed on several grounds by the learned senior counsel appearing for the appellants. It is contended that the alleged seizure of counterfeit currency notes from the possession of the accused persons itself is doubtful and it is stage managed. The participation of P.W.8, who was working as a Police constable in the DCIB in the entire process of investigation, even after the investigation was taken over by the local police, according to the learned senior counsel, leads to a doubtful circumstance with regard to the seizure of notes from the accused persons. It is contended that the panchwitnesses who have participated in the alleged seizure of counterfeit currency notes have not supported the case of prosecution and therefore, only on the basis of the evidence of Police witnesses, the trial Court was not justified in convicting the accused persons. It is also contended that the seizure of counterfeit currency notes from accused Nos.3 to 9 is highly doubtful as it is hard to believe that all the said accused were carrying counterfeit currency notes when they were apprehended as alleged by the prosecution. It is

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also contended that the scribe of the seizure mahazar is not known and the panchwitneses are not from the local area and therefore, a doubt arises in the case of the prosecution that the seizure was conducted in a proper manner.

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6. The learned senior counsel has also contended

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that mere possession of counterfeit currency notes itself is not sufficient and more over P.W.15, the Scientific Officer has deposed in his evidence that he has taken sufficient time to verify as to whether the notes which were sent for examination are counterfeit currency notes. Therefore, his evidence would show that the notes which are alleged to have been seized from the possession of the accused by a mere look could not be identified as counterfeit currency notes and therefore, it cannot be said that the notes were carried by the accused either with an intention or knowledge that the said notes were counterfeit currency notes.

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The learned senior counsel has also contended

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that the statements of the accused recorded under Section

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313 of Cr.P.C. is in a cyclostyle form as all the accused were asked the same questions, which were asked to accused Nos.1 and 2 and therefore, the object of recording such a statement has been defeated.

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It is also contended by the learned senior counsel that while conducting search, Police Officer concerned is required to call independent and respectable people of the locality to witness the search and in the present case, no persons from the locality has been secured. In this connection, he has relied on a decision of the Hon’ble Apex Court in the case of Sahib Singh Vs. State of Punjab reported in [1996]11 SCC 685.

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The learned senior counsel has also relied on a decision of the Hon’ble Apex Court reported in [2012]4 SCC 722 in the case of Govindraju alias Govinda Vs. State by Srirampuram Police Station and Another to contend that when a witness is neither wholly reliable nor wholly unreliable, the Court has to be cautious and see if the statement of such witness is corroborated, either by

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the other witnesses or by other documentary or expert evidence.

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The learned senior counsel has relied on a decision of this Court reported in [2015]1 KCCR 494 in the case of Mahendrasingh Khetsing Rao Vs. State of

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Karnataka to contend that it is the burden on the prosecution to establish the knowledge or belief of the accused and the prosecution has to show that the accused was an ordinary prudent man who could distinguish between the fake and genuine currency notes.

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Per contra, the learned High Court Government Pleader has contended that even though the panchwitnesses have not supported the case of prosecution, the official witnesses have categorically deposed in support of the prosecution case and therefore, prosecution has been able to establish the seizure of counterfeit currency notes, which were having similar serial number. He contends that the mahazars have been drawn while conducting seizure of notes from the accused persons and there is no reason to disbelieve the said mahazars. He

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further contends that the evidence of P.W.15-Scientific Officer and his report-Ex.P11 confirms that the notes which were sent for examination are counterfeit currency notes. He therefore contends that there is no illegality committed by the learned Sessions Judge and seeks to dismiss the appeal.

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Having heard the rival contentions, the

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following points would arise for consideration:

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(1) Whether the prosecution has been able to establish the guilt of the accused/appellants for the offences punishable under Sections 489B and 489C of IPC beyond reasonable doubt?

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(2) Whether the impugned Judgment and Order of conviction and sentence passed by the trial Court is in accordance with law or whether it requires interference by this Court?

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It is the specific case of prosecution that the first informant viz, ASI, DCIB, Mangaluru, on 31.08.2004 received a credible information that accused No.1 viz, Shantappa was dealing in counterfeit currency notes and

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hence, as per the direction of the Additional Superintendent of Police, he proceeded towards Daskodi in Balthila village, Bantwal taluk at about 3.30 p.m. along with his staff after securing two panchwitnesses. According to prosecution, they noticed accused Nos.1 coming from his house along with accused No.2 holding a plastic cover. On search of the plastic cover, they found 2 bundles of fake currency notes of 100/- denomination, which was in possession of accused No.1 and similarly found accused No.2 in possession of 100 fake currency notes of 100 denomination kept in his pant pocket apart from genuine notes. The alleged counterfeit currency notes were seized under a mahazar, Ex.P2. P.Ws.4 and 14 are the panchwitnesses to the said mahazar.

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In so far as the seizure of counterfeit currency notes from accused Nos.1 and 2 is concerned, the prosecution has placed reliance on the evidence of P.Ws.1, to 3, 8 and 13 as well as the panchwitnesses. It is not in dispute that P.Ws.4 and 14 viz, panchwitneses have not supported the case of prosecution. Both of them have

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completely denied the seizure of notes from accused Nos.1 and 2 as well as the contents of the seizure mahazar. The question remains is whether the evidence of the Police witnesses namely P.Ws.1 to 3, 8 and 13 are sufficient to substantiate the seizure from accused Nos.1 and 2.

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After the counterfeit currency notes were seized from accused Nos.1 and 2 as well as other accused persons, they were sent for examination to the Forensic Science Laboratory. The prosecution has examined P.W.15Scientific Officer. In his evidence, he has stated that he has taken necessary training to examine the currency notes and in several cases, he has examined the notes and given report. Further, on 12.10.2004, he has received 9 sealed articles, which contained counterfeit currency notes and after a thorough examination using scientific method and following the procedure, he has come to conclusion that the notes examined by him were counterfeit currency notes. His report is marked as Ex.P11. There is nothing elicited in his cross-examination to disbelieve his evidence and to

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hold that the notes which were sent for examination were not counterfeit currency notes.

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P.W.1 in his evidence has deposed that after

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receiving a credible information that accused No.1 viz, Wizard Shantappa was dealing in counterfeit currency notes, as per the directions of the Additional Superintendent of Police, he along with his staff viz, Giriyappa [C.W.4], P.C.1904-Vishwanath (C.W.10), P.C.2002-Bhaskar [P.W.8], another Police Constable by name Damodar (C.W.9) and other police personnel, proceeded to the spot at about 3.30 p.m. They stopped the

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vehicle at Kalladka, from where they secured the panchwitnesses and thereafter proceeded to the spot in a private vehicle. They noticed two persons at about 4.55 p.m. coming out of the house of accused No.1. They enquired them about the counterfeit currency notes and then inspected and checked the plastic bag/cover which was with accused No.1 and found 2 bundles each containing `100/- denomination fake currency notes. Similarly, they found in the pant pocket of accused No.2

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one bundle containing 100 fake currency notes of `100/denomination apart from genuine notes as well as a mobile phone. He has stated that all those notes contained ‘4’ serial numbers.

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In Ex.P1-complaint, P.W.1 has stated that he went to the spot along with H.C.675-Narayana Maniyani [P.W.2], P.C.1706-Ganesh, P.C.831-Harish, P.C.1904Vishwanath, P.C.1965-Ashoka [P.W.3], P.C.2002-Bhaskar [P.W.8], P.C.2024-Narayana, P.C.1923-Giriyappa, A.P.C. 165-Devaiah and P.C.351-Damodar. Among them, Narayana Maniyanai is examined as P.W.2, Ashoka is examined as P.W.3 and Bhaskar is examined as P.W.8.

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P.Ws.2, 3 and 8 have deposed in their evidence in consonance with the evidence given by P.W.1. Their evidence with regard to receiving credible information and proceeding to the spot with other Police officials and panchas and apprehending accused Nos.1 and 2 is not shaken in the cross-examination. It is relevant to see that P.W.1 was working as ASI attached to the DCIB, Mangaluru. According to the prosecution, credible

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information was received that accused No.1 viz, Wizard Shantappa was dealing in counterfeit currency notes. Therefore, they went to Daskodi along with other Police officials and panchwitnesses.

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P.W.2 was working as Police Head Constable and P.Ws.3 and 8 were working as Police Constables in the DCIB, Mangaluru. P.Ws.1 to 3 and 8 have categorically stated regarding seizure of fake currency notes from accused Nos.1 and 2 and the notes having similar serial number.

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P.W.13 was working as ASI at Bantwal Police

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Station. He has deposed that on 31.08.2004 the first informant i.e, P.W.1 submitted a report along with a mahazar and complaint and also produced accused Nos.1 and 2 before him. The complaint is marked as Ex.P1 and the mahazar is marked as Ex.P2. On the basis of Ex.P1complaint, he registered a case in Crime No.134/2004 and transmitted the FIR [Ex.P10] to the jurisdictional Court. He has stated that P.W.1 has also produced the fake currency notes which were seized from accused Nos.1 and 2 as well

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as genuine notes and a mobile phone. On the same day, accused Nos.1 and 2 were arrested and they were produced before the Court. Thereafter, he handed over the investigation to the CPI-Investigation Officer [P.W.12].

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18. The contention of the learned senior counsel

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that since both the panchwitnesses to the seizure mahzarEx.P2 have turned hostile and the seizure of fake currency notes alleged to have been made from accused Nos.1 and 2 is not in accordance with law and therefore, only on the basis of the evidence of the official witnesses the accused can not be convicted etc., cannot be accepted. Merely because the panchwitnesses have turned hostile, that itself is not a ground to disbelieve the Police Officials and their evidence with regard to seizure of fake currency notes from accused Nos.1 and 2. It is relevant to see that P.Ws.1 to 3 and 8 are attached to the DCIB, Mangaluru and after receiving a credible information and as per the directions of Addl.S.P., they have proceeded to the spot and apprehended accused Nos.1 and 2 and from their possession, the alleged counterfeit currency notes were

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seized under a mahazar-Ex.P2. Thereafter, the said accused were produced before the Bantwal Police and they were arrested.

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P.W.12 after registration of the case has conducted further investigation of the case. He has deposed that after he took over investigation from the PSI [P.W.13], he recorded the voluntary statements of accused Nos.1 and 2, who volunteered to show accused No.3. The voluntary statements of accused Nos.1 and 2 are marked as Exs.P7 and 8 respectively. He has further stated that he along with the Police Officials viz, Ganesh, Bhaskar [P.W.8], P.C.2024-Narayan and panchas went towards Puttur at about 6.30 a.m. and apprehended accused No.3 shown by accused Nos.1 and 2, at about 6.30 a.m. He has stated that the said accused was in possession of 35 fake currency notes of 100/- denomination, one genuine currency note of 100/- denomination and an LG Reliance mobile phone. He has further stated that the same were seized and sealed and a mahazar was drawn as per Ex.P3.

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The mobile phone is marked as M.O.10 and the fake currency notes are marked as M.O.11.

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P.W.12 has further deposed that accused No.3

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volunteered to show another 5 accused and he recorded his voluntary statement under Ex.P9. Thereafter, along with panchas and his staff, he went towards Uppinangadi at about 9.00 a.m. and apprehended accused Nos.4 to 7, who were waiting for a bus at Nekkilady. He has deposed that from accused No.4, 13 counterfeit currency notes of 100/denomination, from accused No.5, 27 counterfeit currency notes of Rs.100/- denomination, from accused No.6, 14 counterfeit currency notes of Rs.100/- denomination and from accused No.7, 11 counterfeit currency notes of 100/denomination were seized under a mahazar-Ex.P5 in the presence of panchas.

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P.W.12 has further deposed that accused No.3 volunteered to show accused No.8. On the same day, they apprehended accused No.8 from his house situated in Mulki and seized 13 counterfeit currency notes of `100/-

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denomination under a mahazar-Ex.P4 in the presence of panchas.

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P.W.12 has further deposed that on 10.09.2004

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at about 5.00 p.m. a credible information was received about the whereabouts of accused No.9, as such, he went to a place called Kalladka and apprehended accused No.9 and seized 20 counterfeit currency notes of `100/denomination under a mahazar Ex.P6 in the presence of panchas. He has further stated that, all the seized articles were sealed and subjected to property form and submitted to the Court and on 06.10.2004, he sent the articles to the FSL.

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In so far as the seizure of counterfeit currency notes from accused Nos.1 and 2 are concerned, the prosecution has relied on the evidence of P.Ws.1 to 3, 8, 12 and panchwitnesses i.e., P.Ws.4 and 14. As already noted, P.Ws.1 to 3 and 8 are attached to the DCIB, Mangalore. From their evidence, it could be gathered that on receiving a credible information that accused No.1 was dealing in counterfeit currency notes and as per the

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directions of the Additional Superintendent of Police, Mangaluru, they proceeded to the spot and apprehended accused Nos.1 and 2. In so far as the seizure of fake currency notes from accused Nos.3 to 8 are concerned, the prosecution has placed reliance on the evidence of P.W.8 and Investigation Officer-P.W.12 apart from the panchas [C.W.11 and P.W.5]. In so far as seizure of alleged fake currency notes from accused No.9 is concerned, the prosecution has placed reliance on the evidence of P.W.s.7, 9 and 12 apart from panchwitnesses P.Ws.6 and 11.

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It is the contention of the learned senior

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counsel that P.W.8 is not a staff of P.W.12, but he is attached to the DCIB., Mangaluru and his participation in the subsequent investigation which was done after registration of the case is doubtful and also shows the high interestedness of the prosecution in examining him as a witness in the subsequent seizure of notes from the other accused. It is also contended that it is highly doubtful that accused Nos.3 to 9 were in possession of counterfeit

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currency notes and they were trying to put the notes in circulation, when they were apprehended.

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P.W.12-Investigation Officer in his evidence has deposed that accused Nos.1 and 2 volunteered to show accused No.3 and led him and other Police Officials and the panchwitnesses towards Boluvaru Bus Stand, from where accused No.3 was apprehended. P.W.12 has stated that he went along with his staff viz, Ganesh, Bhaskar and Narayan as well as panchwitnesses in their departmental vehicle.

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The Police personnel viz, Ganesh and Narayan are not examined by the prosecution. Bhaskar, who is examined as P.W.8 is attached to the DCIB, Mangaluru. According to P.W.12, after drawing the mahazar as per Ex.P3 accused No.3 led the Police and the panchwitnesses towards Nekkilady, from where accused Nos.4 to 7, who were waiting for the bus were apprehended and fake currency notes were seized from them under a mahazarEx.P5. Thereafter, accused No.3 led the Police and the panchwitnesses and showed accused No.8, who was apprehended from a place called Yellingapayyakadu in

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Mulki and seizure was effected under Ex.P4. The evidence available in respect of the seizure of the fake currency notes under Ex.P5 from accused Nos.4 to 7 and Ex.P4 from accused No.8 is that of P.Ws.8 and 12. The prosecution has not examined the panchwitness viz, Ramachandra, who is shown as C.W.11 in the charge-sheet. P.W.5 who is examined has not supported the case of prosecution. The said P.W.5 though admitted his signature in the mahazar viz, Exs.P3 to 5, has categorically denied the contents of the said mehazar. In the cross-examination, he has denied the suggestion that the said accused were apprehended from the spot shown in the mahazar and also denied that the seizure as shown in the mahazar was done and it was read over to him and his signature was taken. Hence, in the absence of the evidence of panchwitnesses, it is relevant to scrutinize the evidence of P.Ws.8 and 12 carefully, as the prosecution has not examined other Police personnel who are part of the investigation team and who accompanied P.W.12 while apprehending accused Nos.3 to 8.

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As already noted supra, P.W.8 is a Police constable attached to DCIB., Mangaluru. After the counterfeit currency notes were seized from the possession of accused Nos.1 and 2, P.W.1 lodged a complaint before the Bantwal Town Police Station. After registration of the case and arrest of accused Nos.1 and 2, investigation was taken over by P.W.12. It is not forthcoming from the evidence of P.W.1 as to why he took the assistance of P.W.8 who was not his staff and not attached to Bantwal Town Police station. It is not forthcoming from his evidence that any permission was taken from the Higherups to include P.W.8 in the investigation team. The other Police Officials who were part of the investigation are not examined by the prosecution. Though P.W.12 has stated that he along with other Police Officials and panchwitnesses went to apprehend the accused persons, P.W.8 has not spoken about the panchwitnesses accompanying the team and not spoken their presence at the time of seizure of fake currency notes from the possession of the said accused. He has specifically stated that after the mahazar was drawn as per Ex.P2 and seizure of counterfeit currency

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notes from the accused, on the basis of jurisdiction, the investigation was transferred to Bantwal Town Police Station. But, again, on 01.09.2004 at about 6.00 a.m., he accompanied the Investigation Officer i.e, P.W.12 and other staff as well as accused Nos.1 and 2 to apprehend accused No.3. He has not stated as to who are the panchwitnesses secured by P.W.12. The presence of panchwitnesses at the time of accused No.3 leading the Police Officials to show accused Nos.4 to 7 has not been spoken by him in the chief- examination.

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27. According to the prosecution, seizure of fake

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currency notes from accused No.3 and accused Nos.4 to 8 were on 01.09.2004. Exs.P3, 4 as well as 5 are dated 01.09.2004. It is elicited in the cross-examination of P.W.8 that he has given statement before the C.P.I.-Investigation Officer that he has gone to Bantwal for investigation on 02.09.2004. It is not forthcoming as to what investigation was carried on 02.09.2004. Accused Nos.3 to 8 were apprehended and fake currency notes, according to prosecution were seized from their possession on

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01.09.2004 itself. It is also relevant to see that according to the prosecution, 13 counterfeit currency notes were seized from the house of accused No.8, whereas, P.W.8 has stated that accused No.8 produced 14 counterfeit currency notes before the Investigation Officer from a cupboard in his house as per Ex.P4. However, the evidence of P.W.12 does not disclose that the counterfeit currency notes were seized from the house of accused No.4. He has only stated that accused No.3 led the Police and panchas to a place called Yellingapayyakadu in Mulki from where the said accused viz, accused No.8 was apprehended and from his possession 13 counterfeit currency notes were seized under Ex.P4.

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P.W.12 has stated in his cross-examination that

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when the jeep was stopped and they went to the bus stand to apprehend accused Nos.4 to 7, all the accused tried to run away after seeing the police, whereas P.W.8 has not stated that the accused tried to run away after seeing the Police. On the other hand, he has deposed that accused Nos.1 and 2 showed accused No.3, who was standing near

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Boluvaru Bus Stand and thereafter, they went and enquired with the said accused and searched his pant pocket and found the fake currency notes and on the same day i.e, on 01.09.2004 at about 9.00 a.m., the said accused led the Police to Nekkilady Police Station and showed the other 4 accused persons and they went near them and enquired with the said accused and searched their pockets and found the fake currency notes. He has nowhere stated that on seeing the Police, the said accused tried to run away. On the otherhand, in the cross-examination, he has stated that there were about 8 Police and on seeing the Police jeep, the accused did not try to escape.

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According to the prosecution, on 10.09.2004, P.W.12 received a credible information about accused No.9 and arrested him near Kalladka and from his possession seized 20 counterfeit currency notes of `100 denomination under Ex.P6 in the presence of panchwitnesses viz, P.Ws.6 and 11. The prosecution has relied upon the evidence of P.Ws.7 and 9, Investigation Officer-P.W.12 and panchwitnesses viz, P.Ws.6 and 11 with regard to the

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seizure of counterfeit currency notes from the possession of accused No.9. Both the panchwitnesses P.Ws6 and 11 have turned hostile and they have not supported the case of prosecution. They have denied having seized any counterfeit currency notes from accused No.9.

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P.W.12 has deposed that on 10.09.2004 at

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about 5.00 p.m., he received a credible information about accused No.9 and therefore, he along with his staff and panchwitnesses went in the Department Vehicle to Vittal Junction and apprehended the said accused and when his pant pocket was searched, found 20 counterfeit currency notes of `100/- denomination. Therefore, he was arrested and the said notes were seized under mahazar-Ex.P6.

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31. P.W.7 in his cross-examination has stated that

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all the 20 counterfeit currency notes which were seized from accused No.9 and marked as M.O.9 looked like fresh notes. Though P.Ws.7 and 9 have stated that all the 20 counterfeit currency notes are having same serial number, the same is not spoken by the Investigation Officer. P.W.7 has deposed that the Investigation Officer took him along

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with P.C. 1711 [P.W.9] and panchwitnesses to Vittal cross and then apprehended accused No.9. P.W.9 has not spoken about the Investigation Officer taking the panchwitnesses to the spot. In the cross-examination, he has stated that he does not know as to from where the panchas, who signed Ex.P6 were secured. It is not the case of prosecution that any of the arrested accused gave information about accused No.9. The arrest of accused No.9 and seizure of counterfeit currency notes from his possession appears to be doubtful. The evidence of P.Ws.7, 9 and 12 who are the Police Officials regarding seizure from accused No.9 does not inspire confidence of the Court, in the absence of any independent witnesses. Admittedly, panchwitnesses have turned hostile.

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One of the contentions raised by the learned senior counsel is that P.W.15-Scientific Officer while examining each of the alleged counterfeit currency notes has taken 5 to 10 minutes and therefore it is contended that on a mere look at the notes it can not be made out, that they are counterfeit notes and therefore, no criminal

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intention can be attributed to the accused even if they were in possession of the said notes. He has contended that to base conviction in a case of this nature, there should be conscious possession of the counterfeit notes and the accused should have been intentionally possessing the same and trying to circulate knowingly very well that the notes which were in possession are counterfeit currency notes.

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Another leg of contention raised by the learned senior counsel is that statement of the accused recorded under Section 313 of Cr.P.C. is not in accordance with law. It is contended that the statements are in a cyclostyled form and whatever questions put to accused Nos.1 and 2 has been repeatedly put to other accused as well. In this behalf, several Judgments have been relied upon by the learned senior counsel.

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In the instant case, based on the evidence and material on record, this Court has found the evidence of P.Ws.1 to 3, 8 and 13 are trustworthy in so far as the

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seizure of counterfeit currency notes from accused Nos.1 and 2. Even though the panchwitnesses viz, P.Ws.4 and 14 have turned hostile, the evidence adduced by P.Ws.1 to 3 and 8 is sufficient to hold that the said two accused were apprehended on 31.08.2004 and the counterfeit currency notes were seized under a mahazar-Ex.P2 which was drawn between 5.15 and 6.45 p.m. This Court does not find any infirmity in the testimony of the said witnesses and it is well-settled that if the testimony of the police officials is found reliable, conviction can be based without being corroborated by any other independent witnesses. This Court having carefully scrutinized the evidence of the said Police Officials is of the view that their evidence inspire confidence and the same is trustworthy and reliable.

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The fact that the bundle of notes seized from accused Nos.1 and 2 contained similar serial number also go to show that they knew that the notes which were in their possession were counterfeit currency notes. The witnesses have stated that on a mere look at the said notes they were convinced that it was counterfeit currency notes.

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Hence, it can not be said that accused Nos.1 and 2 were having no knowledge about the possession of counterfeit currency notes. The material on record is sufficient to hold that accused Nos.1 and 2 have received the counterfeit currency notes having reasons to believe that the same are counterfeit notes.

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Section 313 of Cr.P.C. casts a duty on the Court to put, in an enquiry or trial, questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him, as held by the Hon’ble Apex Court in the case of Asraf Ali Vs. State of Assam reported in [2008]16 SCC 328 and in other catena of decisions. It is held in the above decision that each material circumstance appearing in the evidence against the accused is required to be put to him specifically distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

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In the instant case, this Court has already come to the conclusion that the evidence and material on record

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is not sufficient to hold that accused Nos.3 to 6, 8 and 9 are guilty of the offences charged against them. The prosecution has failed to establish the guilt against them beyond reasonable doubt. In so far as accused Nos.1 and 2 are concerned, perusal of the statements recorded under Section 313 of Cr.P.C. do show that all the incriminating evidence appeared against them have been put to them. In so far as other accused are concerned, some irrelevant questions which are incriminating against accused Nos.1 and 2 were put to those accused. Since already this Court has found the evidence against the said accused insufficient and not reliable to convict them, the question as to whether any prejudice has been caused to the said accused by putting such questions in the statements recorded under Section 313 Cr.P.C, need not be gone into, as it is only academic.

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In the light of the above discussion and for the foregoing reasons, I am of the considered view that the Judgment and Order of conviction and sentence passed by the trial Court in so far accused Nos.3 to 6, 8 and 9 are

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concerned is liable to be set aside. Points raised are accordingly answered. Hence, the following:

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ORDER

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Crl.A. No.209/2011 filed by accused No.5 is allowed.

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Crl.A. No.116/2011 filed by accused Nos.1 to 4, 6, 8

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and 9 is partly allowed.

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The Judgment and Order of conviction and sentence dated 27.01.2011 passed by the Court of II Additional Sessions Judge, Dakshina Kannada, Mangaluru, in S.C. No.105/2004 in so far convicting accused Nos.3 to 6, 8 and 9 for offences under section 489B and 489C are concerned is hereby set aside and in so far as accused Nos.1 and 2 are concerned is hereby confirmed.

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Accused Nos.3 to 6, 8 and 9 are acquitted of the offences punishable under Sections 489B and 489C of IPC. Their bail bonds stand cancelled.

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The fine amount if any deposited, shall be refunded

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to them.

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Accused Nos.1 and 2 shall surrender before the trial

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Court within a period of 6 [six] weeks for undergoing the remaining part of the sentence imposed against them.

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