Allowed

Narendran v. State of Kerala

Kerala HC7 Jan 2014CRL.A/1758/2003

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the conviction and sentence. The court found the prosecution failed to establish exclusive possession of counterfeit notes by the appellant and invalidated the subsequent recovery due to illegal custody and lack of exclusive knowledge disclosure.

What did the court decide?

Appendiceal judgment dated 30.08.2003 set aside; bail bond cancelled; appellant set at liberty.

Narendran Vs State of Kerala — Cheque Dishonour | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 7TH DAY OF JANUARY 2014/17TH POUSHA, 1935

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CRL.A.No. 1758 of 2003 (B)

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AGAINST THE JUDGMENT IN SC 72/2000 of ADDITIONAL SESSIONS COURT (ADHOC-1), THODUPUZHA DATED 30-08-2003

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APPELLANT(S)/ACCUSED NO.1:

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NARENDRAN @ APPACHAN, AGED 37, S/O.RAMAN, PURAKUNNEL HOUSE, MAMMATTIKANAM KARA, RAJAKKADU VILLAGE.

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BY ADV. SRI.A.C.DEVASIA

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REP. BY THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, CFS, ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.1758 of 2003

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Dated this the 7^th day of January, 2014.

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J U D G M E N T

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The first accused in S.C.No.72/00 of the court of the

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Additional Sessions Judge (Ad hoc-1), Thodupuzha, is the appellant herein and he challenges his conviction and sentence for the offence under section 489 (B) and (C) of IPC imposed on him vide judgment dated 30.8.2003 in the above sessions case.

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The prosecution case is that, the accused 4 in numbers, with the common intention of possessing and dealing with counterfeit notes, had possessed and transmitted counterfeit currency notes of 10/denomination worth thousands of rupees and on 14.7.1991 at about 7.30 p.m. the first accused was found in possession of 16 counterfeit notes of 10/- denomination and he purchased beedi from the shop of PW1 at Rajakkad

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Kara, Kunchithanny Village by giving a 10/- counterfeit currency note knowing it to be counterfeit note and another 266 counterfeit notes of 10/- were recovered from his possession pursuant to his disclosure statement and thus according to the prosecution, the accused have committed the offences punishable under section 489(B) and (C) r/w 34 of IPC.

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Though initially, crime was registered in the Vellathooval police station as Crime No.105/91, later the investigation was undertaken by the Dy.S.P., CBCID, CFS, Ernakulam, and finally they laid the charge. Thus on receiving the charge, C.P.No.16/97 was instituted in the court of Judicial First Class Magistrate-Adimaly, and the learned Magistrate by his order dated 15.3.2000, committed the case against A1 to A3 alone, since the 4^th accused was absconding and thus the case against accused no.4 has been split up and re-numbered as C.P.No.9/00.

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Thus S.C.No.72/00 was instituted in the Sessions

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court, Thodupuzha, against accused nos.1 to 3 and the same was subsequently made over to the present trial court for disposal. Thus when A1 to A3 appeared, after furnishing the prosecution materials and after hearing the prosecution as well as the defence, the learned Sessions Judge framed a formal charge against accused for the offences punishable under sections 489(B) and (C) of IPC and when the said charge read over and explained to them, they denied the same and pleaded not guilty. Thus the prosecution adduced its evidence by examining PWs.1 to 22 and by producing Exts.P1 to P5 documents. M.O.1 series to M.O.3 series are identified as material objects. Finally, the trial court concluded that the incriminating evidence is available only against accused no.1 and there is no evidence on record against accused nos.2 and 3. On the basis of the above finding, the 1^st accused is found guilty of offence punishable under sections 489(B) and (C)

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of IPC and accused nos.3 and 4 are found not guilty. Accordingly, A1 convicted for the said offences, whereas A2 and A3 are acquitted. On such conviction of A1, for the offence under sections 489(B) and (C) of IPC, he is sentenced to suffer rigorous imprisonment for a period of 1 year each and to pay a fine of `1,000/- each and he is directed to undergo sentence of simple imprisonment for one month each, in case of his failure to pay the fine amount. It is ordered that the substantive sentence of rigorous imprisonment for different offences, to run concurrently. Set off is allowed under section 428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal at the instance of the 1^st accused.

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I have heard Adv.Sri.A.C.Devasia, the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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To prove the case against the appellant, though

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the prosecution has examined PWs.1 to 22, except PW4, PWs.5, 6, 10, 18 and 19 to 22, turned hostile towards the prosecution. As per the prosecution allegation, the 1^st accused and other accused are implicated in the crime on the basis of the facts connected with the two sets of incidents. According to the prosecution, when the 1^st accused on 14.7.1991 at about 7.25 p.m., tried to purchase beedi by giving 10/- denomination currency note from the panshop of PW1, PW2 maintained suspicion about the genuineness of the note given by A1 and he informed the same to PW1 and on hearing the same, A1 tried to escape by running from the spot but he fell down. Consequently, PWs.1 to 3 and local people caught him redhanded and in the meanwhile PW4 joined them and at the instance of PW4, it was realized that the note given by A1 to PW1, was a counterfeit note of 10/- denomination and further, A1 was found in possession of 15 other counterfeit notes and thus at the instance of PW4, A1 and PW1 and others were

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removed to the Vellathooval police station and on the basis of the FI Statement given by PW1, a crime was registered in the said police station and accordingly A1 was arrested. It is the further case of the prosecution that, on such arrest of A1 and on his questioning, he made a confession statement to the effect that he had concealed 266 counterfeit notes of 10/- denomination in the house of one Thankamma and on the basis of the above disclosure statement, those notes were seized as per the recovery mahazar and according to the prosecution, the above currency notes have reached at the hands of accused no.1 from A4 through A3 and A2. To prove the initial incident, though PWs.1 to 3 were examined, they turned hostile towards the prosecution. PW1 is the panshop owner from whose shop, it is alleged that A1 tried to exchange one counterfeit currency note of 10/- denomination and it is alleged that PW1 gave FI statement. But when PW1 was examined, he admitted that he gave Ext.P1 statement

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before the Police. According to him, one man came in his shop and gave a note of 10/- denomination after purchasing one bundle of Dinesh beedi and according to PW1, he gave the balance after taking 70ps. being the price of the beedi. According to PW1, in the meantime, PW2 came there and doubted about the genuineness of the note given by the said purchaser and at that point of time, the said person ran away from the spot but he was fallen down and thus they caught him. PW1 in the chief examination itself has stated that from the possession of the said person who ran away, about two bundles of 10/denomination, that amounts to a total sum of 10 to 300/-, have fallen down. PW1 further stated that thereafter one Policeman, namely Sasidharan, came there and one Alexander also came and they told him that the note given in the shop was not good and genuine. PW1 has also deposed that in the pocket of the shirt worn by that man, contained 15 notes. According to PW1, the

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name of that person is “Appachan”. He had also deposed before the court at the time of giving evidence that, among the three persons in the box, that particular person was not available. Thereafter, at the request of the prosecution, PW1 was declared as hostile and the learned Public Prosecutor was permitted to cross examine PW1 and during his cross examination, PW1 has admitted that he had given the name of the accused as Narendran. But according to PW1, it was on the basis of hearsay. PW1 has also deposed before the court that it was not A1 who gave the notes and according to PW1, he knows A1. A1 was there at the spot. A1 was not a native of that locality. It is also stated during the cross examination of PW1 at the instance of the Public Prosecutor that, the notes were picked up from the road and the man named Appachan, ran away from the spot and he was not speaking lie to save A1. During the cross examination on behalf of A1, PW1 deposed that the man, who ran away from the spot and

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escaped is Appachan and A1 was standing at that time near the bank. It is also deposed by PW1 that on suspicion, the Police took A1 into custody and taken to the Police Station and initially A1 was caught by local people. According to PW1, he knows the said Appachan and the said Appachan was engaged in the timber business. PW2 also turned hostile and he deposed that he did not witness A1 approaching the shop of PW1 with fake currency note. During the cross examination by the Public Prosecutor, PW2 further said that A1 did not approach the shop of PW1 with 10/- denomination. But one Appachan from Rajakkad came and the note possessed by the said Appachan was counterfeit note. At about 7.30 p.m., the said Appachan gave 10/- note to PW1 and purchased beedi from his shop. According to PW2, on entertaining doubt, he asked PW1 to verify the note, but that man ran from the spot and he was chased by Pws.1 and 2 and intercepted. He had also denied the statement allegedly

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given by him to the Police. During the cross examination, on behalf of the defence, PW2 deposed that some notes were fallen from the hands of Appachan and the said notes were picked up by the local people and at that time, A1, who is in the box, was standing near the bank, who was caught by local people and entrusted him with the Police. Though PW3 was cited and examined as an attestor to the seizure mahazar prepared, connected with the seizure of counterfeit notes from the possession of A1, he turned hostile and deposed that he did not know A1 and not seen the arrest of A1 with counterfeit notes. According to PW3, he had not come to the shop of PW1 on the date of the incident. He had also denied the statement alleged to have given to the Police.

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When PW4 was examined, he had deposed that on 14.7.1991, he was working as Police Constable attached to Munnar Police Station and on that date at about 7.30 p.m., he went to Kunjithanni town and on seeing certain persons

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assembled in the shop of PW1, he went there and according to PW4, he saw A1 surrounded by some persons. According to PW4, Pws.1 and 2 told him that A1 had possessed counterfeit notes. It is the further case of PW4 that he obtained `10/- denomination from the possession of A1 and when examined, he convinced that it was a counterfeit note. PW4 further deposed that A1 was found with another 15 notes and the same were examined and found that the same were counterfeit notes. PW4 further deposed that A1 and the counterfeit notes and Pws.1 and 3 were taken in a jeep to Vellathooval Police Station and produced before the Sub Inspector of Police as the place of occurrence was within the jurisdiction of Vellathooval Police Station. Pws.5 and 6 are the attestors to seizure mahazar prepared by PW18, the then Sub Inspector of Police, Vellathooval Police Station. When these witnesses were examined, they have deposed in terms of the prosecution allegation and they have admitted the

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signature in the seizure mahazar prepared by PW18 in the Police Station.

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As I indicated earlier, the further case of the prosecution is that when the accused was produced before PW18, and on his arrest, as he was found in possession of counterfeit notes, and on questioning, A1 made confession statement before PW18-the Sub Inspector of Police. According to the prosecution, the confession made by A1 recorded in the seizure mahazar prepared by PW18 and Ext.P3(a) is the confession statement of A1. As per the confession statement of A1, 266 counterfeit notes of `100/denomination were recovered from the house of PW9, as per Ext.P3 seizure mahazar. Pws.7 and 8 are the attestors to Ext.P3 seizure mahazar. When Pws.7 and 8 were examined, they turned hostile towards the prosecution. PW9 is the person in possession of the house from where the notes were allegedly seized by PW18. PW10 is the then U.D.Clerk attached to Rajakkad panchayat and when

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he was examined, he had stated that the house from where the counterfeit notes were allegedly seized on the basis of the statement of the accused, is in the possession of PW9 and the owner of the said house is none other than the husband of PW9. Suffice to say, no document is produced by PW10 to substantiate the above facts. Pws.11 to 17 were examined to prove the case of the prosecution against A2, but they turned hostile.

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When PW18-the then S.I. of Police was examined,

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he had deposed in terms of the prosecution case and he had also stated that A1 and Pws.2 and 3 were brought in the Police Station and PW1 gave a statement before him on the basis of the FIR registered and one currency note of `10/- denomination was seized as per the statement given by PW1. PW18 has also deposed that after the arrest of the accused and the body search of A1, 15 other counterfeit notes were also seized and the same were taken into custody as per Ext.P2 seizure mahazar.

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According to PW18, he had also registered a crime against A1. PW18 has also deposed that when A1 was arrested and on his questioning, he had disclosed about the concealment of counterfeit notes in the house of PW9 and as guided by A1, himself and party were proceeded to the house of PW9 and seized 266 counterfeit notes from the house of PW9, on the basis of the confession statement of the accused. According to the prosecution, after the seizure effected by PW18, the case was handed over to crime Branch and the further investigation was undertaken by them. Thus when PW19 was examined, Ext.P5 expert report was marked through him. The further investigation was undertaken by Pws.20, 21 and 22 who finally laid the charge. The trial court came into the above finding and convicted the appellant on the basis of the above evidence.

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The learned counsel for the appellant vehemently argued that the prosecution has miserably failed to

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establish the identity of A1, as the person who found in possession of the counterfeit notes. According to the counsel, the evidence of PW4 is not sufficient to prove the ingredients of sections 489(B) and (C) of IPC, since PW4, even as per his version, had came at the spot after the other witnesses caught A1 and particularly the evidence of A1 to A3 are not sufficient to hold that it was from the possession of A1, the counterfeit notes were recovered. It is also the contention of the learned counsel that the prosecution has conducted no effective investigation to trace out the source of the counterfeit notes involved in this case. It is pointed out by the learned counsel that though the Police Constable attached to Vellathooval Police Station, who being an attestor to Ext.P3 seizure mahazar, was shown as a charge witness, such Police Constable is not examined. So, according to the learned counsel, the prosecution has miserably failed to prove that the counterfeit notes involved in the present case were

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recovered from the exclusive possession of the accused and there is no evidence to that effect. Thus according to the learned counsel, in the light of the decisions reported in Kuttan Nadar Vs. State (2002(3) KLT S.N. Page 48

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Case No.68), The State of Karnataka Vs. K.S.Ramdas and others (1976 Crl.L.J.228 in paragraph 27) and Gafoor Vs. State of Kerala 1987(2) KLT Page 730 , the prosecution has miserably failed to establish the essential ingredients of Sections 489(B) and(C) of IPC against the appellant and therefore he is entitled to get an acquittal.

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Per contra, the learned Public Prosecutor fairly submitted that even if the evidence of the prosecution, with respect to the seizure of counterfeit notes of 10/denomination effected from the possession of the accused, is excluded, the other evidence of Pws.4 and 18 supported by Ext.P3 seizure mahazar and Ext.P3(a) confession statement of A1, would show that he was in possession of 266 counterfeit notes of 10/- denomination and therefore

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the prosecution has succeeded in proving the guilt of the accused for the offence under sections 489(B) and (C) of IPC and therefore the trial court is fully justified in convicting the appellant for the said offences.

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I have carefully considered the rival contentions advanced by both the counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials available on record.

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In the light of the contentions and the evidence and materials on record, the question to be considered is whether the conviction recorded by the trial court against the accused for the offence under sections 489(B) and (C) of IPC is maintainable. At the outset it is to be noted that, though by the impugned judgment, the trial court acquitted accused nos.2 and 3, the State has not filed any appeal challenging the above acquittal and thus the acquittal of accused nos.2 and 3 has became final.

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As I indicated earlier, in the present case, the

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prosecution allegation consists of two set of facts and the first set of fact is connected with the alleged recovery of 16 counterfeit notes from the possession of the accused and the second set of fact is with respect to the recovery of 266 counterfeit notes of 10/- denomination on the basis of the confession statement allegedly made by the accused while he was in custody on the basis of the arrest of the accused connected with the recovery of 16 notes of 10/denomination on 14.7.1991 at about 11 p.m. from the Vellathooval Police Station. So, the first question to be considered is whether the prosecution has succeeded in establishing the alleged recovery of 16 counterfeit notes of `10/- denomination from the possession of the accused at 11 p.m. on 14.7.1991. As I indicated earlier, according to the prosecution, the possession of the counterfeit notes by the accused came to the notice of the prosecution, when A1 attempted to change the counterfeit currency note after purchasing beedi from the panshop of PW1 and that

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too when PW2 doubted about the genuineness of the note given by A1. But to prove the above fact, there is no satisfactory and convincing evidence, since Pws.1 to 3 had turned hostile. PW4-the Police Constable came into picture, even as per his version, only when Pws.1 to 3 caught A1 at about 7.25 p.m. on 14.7.1991. As per the evidence of PW1, he verified and examined the counterfeit currency notes possessed by A1, when he was told about the said fact by Pws.1 and 2 and others. But in this case, it is came out in evidence through Pws.1 to 3 that, when one Appachan was running away from the shop of PW1, he fell down and when he ran away, the notes from his laps were fallen on the road and those notes were picked up by Pws.1 and 2 and others. Pws.1 and 2 were unanimous in their deposition that, the person who ran away from the shop of of PW1 is not A1 who is in the box. The name of the person who attempted to ran away is Appachan. There is no acceptable and reliable evidence to show that the

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person who attempted to ran away from the panshop of PW1 and the person at the dock is one and the same. Even if it is assumed that Pws.1 to 3 had attempted to salvage the real accused-A1, there is no evidence that A1 was found in possession of counterfeit notes, since when PW4 arrived at the spot, A1 was caught hold by Pws.1 to 3 and other people. PW4 has no direct knowledge to show that A1 was found in possession of counterfeit notes, since according to Pws.1 to 3, they picked up the counterfeit notes from the road which fallen from the body of a person, namely Appachan, who attempted to ran away from the spot. So, there is no direct and clinching evidence to show that the currency notes which examined by PW4 are the notes actually possessed by the accused or by the said Appachan. As per the evidence of PW4, A1 and the counterfeit notes, and PW1 and others were removed to the Vellathooval Police Station in the jeep at the instance of PW4 and it is thereafter the case was

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registered against A1.

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In this case, it is relevant to note that as per the prosecution allegation, A1 who approached the panshop of PW1 at about 7.30 p.m. on 14.7.1991 and immediately thereafter, the accused ran away from the spot as PW2 realised the fact that the note given by A1 was counterfeit note and thereafter A1 was caught hold by PW1 and others, and at that point of time, PW4 appeared in the scene. However, it is after 3 ½ hours of the incident, the accused as well as the counterfeit notes and the witnesses were produced before the Police Station and absolutely there is no explanation for taking that much time to reach in the Police Station. If there was no involvement of PW4, we can approve that the local people, particularly Pws.1 to 3, may not be aware of the procedure to be adopted. But in the present case, PW4 who is a Police Constable and who is expected to know the procedure to be adopted when a cognizable offence is came to his notice,

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particularly with respect to fake notes, he could have brought the police party at the spot after informing them and the seizure could be effected by the Police directly from the possession of the accused at the spot itself. No such course was adopted by PW4. No explanation from PW4 or from the part of the prosecution for the delay in effecting the seizure of 15 counterfeit notes from the possession of the accused in the Police Station. In view of the evidence of Pws.1 to 3 and particularly in view of the deposition of PW4, according to me, no evidentiary value can be attached to the so called seizure effected by PW18, after the search of body/person of the accused, since even PW18 and other prosecution witnesses were aware that A1 was entrusted with the counterfeit notes, including the fake notes collected from the road. So, according to me, the available evidence of prosecution is not sufficient to hold that the accused was found in exclusive possession of 16 counterfeit notes, so as to justify the arrest and custody

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of A1. Thus, the available evidence on record are insufficient to attract the ingredients of sections 489(B) and (C) of IPC, particularly in view of the decisions of this Court reported in 2002(3) KLT S.N. Page 48 Case No.68, 1976 Crl.L.J.228 paragraph 27 and 1987(2) KLT Page 730, which are cited supra, more particularly when the prosecution has failed to establish the identity of A1 with clinching and satisfactory evidence and due to the dearth of evidence to show positively that 16 counterfeit notes were recovered from the exclusive possession of A1-the appellant.

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In the light of the above finding and discussion, it can be seen that the custody of the accused right from 7.25 p.m. on 14.7.1991 and thereafter the arrest of the accused at about 11 p.m. on 14.7.1991, is absolutely illegal and improper. If that be so, no legal sanctity can be attached to the so called confession statement made by A1, during such illegal and improper arrest and custody.

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So, Ext.P3(a) confession statement and the consequent seizure cannot be termed as a proper recovery under section 27 of the Evidence Act and no legal sanctity can be attached to the same.

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It is also relevant to note that Pws.7 and 8 are the attestors to Ext.P3 seizure mahazar, but they turned hostile towards the prosecution. The seizure was allegedly effected from the house of PW9 who also turned hostile towards the prosecution. When PW18 was examined, he had deposed that the accused is the paramer of PW9. However, PW9 is not made as a co-accused of A1 in spite of the prosecution claims and allegations that counterfeit notes were seized from the house of PW9. The prosecution has no case that A1 kept those counterfeit notes in the house of PW9 without her knowledge or consent. If that be so, PW9 ought to have been arrayed as an accused in the present case. But no explanation is forthcoming on this aspect. So the entire case of the prosecution about the

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subsequent recovery is also rendered as doubtful. In Ext.P3(a) confession statement, the exact place of concealment of counterfeit notes is not seen recorded or not seen disclosed by A1. As per Ext.P3 and Ext.P3(a), according to the prosecution, the counterfeit notes were concealed in the house of PW9. But in the present case, the counterfeit notes, as per the prosecution, were recovered from the thatched portion of the house of PW9. So, Ext.P3(a) confession statement does not disclose and refer to the exact place where the counterfeit notes were concealed. In the light of the decision of this Court reported in Damodran Damu Vs. State of Kerala [ 1990 (1) KLT 305 ] , it has held as follows:-

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“The fact embraces the place from which the object is produced and the knowledge of the accused as to this Kottaya v. Emperor -- AIR 1947 P.C.67). The fact discovered is the fact that the article was kept concealed there by the accused (Jaffer Hussain v. State of Maharashtra -- AIR 1970 S.C.1934). The recovery of the

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physical object only lends assurance to the correctness of the information given by the accused. That assurance can be had otherwise also. But it is necessary to show that the knowledge was exclusive to the accused, it was first derived from him and it was not known to the police from any other source (Jaffer Hussain' case -- AIR 1970 S.C.1934). It is that exclusive information, the correctness of which is assured by the discovery of the fact, that gives sanctity to it and connects the accused with the crime. That alone is the relevance of the openness of the place. Even in an open place, an object can be kept concealed, say underground or in a traffic umbrella in a public road, with the information exclusively remaining with the accused who is the author of concealment. Here authorship of concealment and exclusive knowledge are there and the evidence is acceptable as incriminating when the weapon is proved to have been used for the offence.” [Emphasis supplied]

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Hence, on the basis of the decision cited supra, according

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to me, no evidentiary value can be attached to the recovery effected, based upon the incomplete and incorrect statement allegedly made by the accused. For

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the above reasons, according to me, the subsequent recovery of the counterfeit notes in the present case no way helpful for the prosecution and therefore it cannot be said that the 266 counterfeit notes of `10/- denomination were within the exclusive possession of the appellant/1^st accused.

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In the light of the above discussion and in view of the evidence and materials on record, I am of the view that, the prosecution has miserably failed to establish the essential ingredients of sections 489(B) and (C) of IPC against the appellant and the prosecution evidence and materials are not sufficient to establish that the accused was found in exclusive possession of 282 counterfeit notes of `10/- denomination beyond reasonable doubt. Therefore, the benefit of such doubt certainly goes in favour of the appellant/accused. Thus, extending the benefit of doubt in favour of the appellant/accused, the findings and the conviction recorded by the trial court

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against the appellant/accused for the offence under sections 489(B) and (C) of IPC are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 30.8.2003 in S.C.No.72/00 of the court of Additional Sessions Judge (Ad hoc-1), Thodupuzha, and the bail bond if any executed by the appellant/accused stand cancelled and he is set at liberty.

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Sd/-

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V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Narendran v. State of Kerala

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Narendran v. State of Kerala

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