Allowed

P.O.Sukumaran @ Kunhukunhu v. the Sub Inspector of Police

Kerala HC14 Jan 2016CRL.A/1829/2004

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal, set aside the conviction and sentence under Section 489(C) IPC, and acquitted the appellant. The court held that the prosecution failed to prove possession with requisite mens rea and that procedural violations in the search vitiated the evidence.

What did the court decide?

Conviction and sentence under Section 489(C) IPC set aside; appellant acquitted under Section 489(B) IPC due to failure of prosecution to prove case.

P.O.Sukumaran @ Kunhukunhu Vs the Sub Inspector of Police — Cheque Dishonour | Kerala HC (2016)

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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 P.D.RAJAN

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THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937

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CRL.A.No. 1829 of 2004 (C)

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AGAINST THE JUDGMENT IN SC 126/2000 of ADDITIONAL SESSIONS JUDGE (ADHOC), KALPETTA DATED 04-10-2004

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APPELLANT(S)/ACCUSED::

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P.O. SUKUMARAN @ KUNHUKUNHU S/O. THEVAN, KOTTAPPURATH HOUSE, AMBALAVAYAL AMSOM, S. BATHERY

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BY ADV. SMT.K.V.RESHMI

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RESPONDENT(S)/COMPLAINANT/STATE::

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1. THE S.I. OF POLICE, AMBALAVAYAL, WAYANAD DISTRICT.

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2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

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ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

acd

'C.R.'

P.D. RAJAN, J.

Crl.Appeal No.1829 of 2004

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Dated this the 14^th day of January, 2016

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JUDGMENT

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This appeal is filed by the 1^st accused against the

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judgment of conviction and sentence in S.C.126/2000 of the

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Additional Sessions Judge, Adhoc, Kalpetta under Section

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489 (C) r/w.34 of the Indian Penal Code ('IPC' for short). The charge against the accused is that on 19.1.90 at 6.10 pm,

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accused was found in possession of 107 counterfeit currency notes of denomination of 10 in his house, No.AP 4/54 of₹ Ambalavayal grama panchayat by the Sub Inspector of Police, Mananthavady. He was arrested and the counterfeit notes

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were seized, thereafter registered a case against the

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accused. The investigation was subsequently entrusted to

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CBCID, Kozhikode and Dy.S.P, CBCID (CFS Unit), Kozhikode

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Crl. Appeal No.1829/2004

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who completed investigation and laid charge before Judicial First Class Magistrate, Sultan bathery under Section 489(B) and 489(C) IPC. A2 and A3 were absconding, their case was split up and refiled as CP 44 of 2000. Hence the case of A1 was committed to Sessions court Kalpetta for trial.

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In pursuance of the charge, prosecution

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examined 12 witnesses and marked Ext.P1 to P8 as documentary evidence. The material objects MO1 to

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3 were admitted as evidence in the trial court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Sessions Judge convicted the accused under Section 489(c) and sentenced to rigorous imprisonment for four years and fine of Rs.10,000/-, in default simple

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Crl. Appeal No.1829/2004 3

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imprisonment for one year. Being aggrieved by that

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he preferred this appeal.

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Smt. Reshmi K.V. the learned counsel for

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the appellant contended that prosecution failed to prove that the appellant was in possession of counterfeit notes knowing them to be forged or counterfeit notes. The detecting officer violated the benevolent provision of search and seizure and there

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is no independent evidence to prove the possession

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and ownership of the house and counterfeit notes.

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Sri. Dhanesh Mathew Manjooran, the

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learned Public Prosecutor contended that the Sub Inspector, Mananthavady prepared a search

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memorandum and sent it to the court and thereafter

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proceeded to the place of occurrence, conducted

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search and seizure.

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The allegation is possession of counterfeit

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currency notes or forged notes. The word

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“counterfeiting” has been explained under Section 28

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IPC and the main ingredients of the word counterfeiting

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laid down in the Section are:

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(1) causing one thing to resemble another thing; (2) intending by means of that resemblance to practise deception.

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(3) knowing it to be likely that deception will thereby be practised.

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Therefore, it is clear that “Counterfeit” in the Section

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does not mean an exact reproduction of the original

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counterfeited. Explanation 2 of Section 28 is of great

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significance which lays down a rebuttable presumption

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where resemblance is such that a person might be

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deceived thereby, in such a situation the intention or the

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knowledge is presumed unless the contrary is proved. In

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this context, what the court has to see is that whether

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one thing is constituted to resemble another

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thing and if that is so and if the resemblance is such that

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a person might be deceived by it, there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved. Here, parties have no dispute about the resemblance of the note but they are disputing the possession and its knowledge.

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6. Possession of counterfeit currency note

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knowing the same to be forged is an offence under

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S.489C IPC. The Section reads as follows:

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“Possession of forged or counterfeit currency notes or bank notes.- Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

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The expression 'currency note' mentioned in S.489

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as well as the currency notes issued by any other

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country in the world and there is no restrictive expression in the Section. This provision will protect people from being deceived by others while accepting any currency-note by exchanging for goods or services and while using as genuine a forged or counterfeit currency-note or bank-note and possessing a forged or counterfeit currency-note or

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bank-note. Apex Court in Umashanker v. State of Chhattisgarh [(2001) 9 SCC 642] held as follows:

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“7. Sections 489A to 489E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary

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possessors or users.”

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Apex Court in M. Mammutti v. State of Karnataka [AIR

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1979 SC 1705] held as follows:

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“If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In the circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentence passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him.

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In the alleged facts I have considered whether there

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is any evidence to show that the appellant had knowledge about the possession of the counterfeit notes and prosecution has established such knowledge

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of the accused in this case. If such knowledge is not proved, Apex Court held that the Court cannot convict the accused, on the other hand it shall acquit

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the accused.

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The case in hand is that on 19.1.1990 ASP,

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Kalpetta got information that appellant was keeping

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counterfeit notes in his house and he directed the S.I of Police, Mananthavady to conduct a search and seize the counterfeit currency notes. To prove the

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seizure, the Sub Inspector of Police, Mananthavady

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was examined as PW11 and his evidence shows that as

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per the direction of ASP, he prepared a search memorandum and sent it to the Court and proceeded to Meenangadi Police Station. He obtained the presence of Probation Sub Inspector and two Police Constables from that station and proceeded to Ambalavayal Police Station. At 4.30 p.m., he took one Head Constable and one Constable from Ambalavayal Police Station and searched the house No.IV/54.

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During search, he seized MO1 to MO3 from the bed

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room, which was taken into custody after preparing Ext.P1 search list. The seized articles were produced before Ambalavayal Police Station at 21.30 hours and prepared Ext.P8 report.

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The evidence of PW7 shows that he was

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present at the time of seizure of MO1 to MO3 from the house, but he did not see any document showing possession and ownership of the house. On a close scrutiny of this evidence, it is clear that both witnesses had spoken about the seizure of counterfeit notes but they did not know the ownership and possession of the house. Though in the cross examination defence counsel asked about the possession of the house, they failed to give any convincing evidence. PW6 the Secretary, Ambalavayal

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Panchayat deposed that as per Ext.P2, P. Hamsa is the

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owner of the property from 1988 to 1992. But

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prosecution examined V. Hamsa as the owner of the property, but no evidence had been adduced in the trial Court to show that P. Hamsa and V. Hamsa are

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one and the same person. Apart from the oral evidence of PW6, PW7, PW11 the official witnesses, no independent evidence is available to prove that point. PW1, PW2, PW3, PW4 and PW5 who are the independent witnesses did not support the possession and ownership of the house and they did not see the seizure of MO1 to MO3. The rule of prudence warrants that more convincing and corroborative evidence is necessary to prove the possession of

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counterfeit notes.

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The case was registered by PW8 Head

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Constable, Ambalavayal Police Station on 19.1.1990 at 21.30 hours. He deposed that PW11 produced the accused with Ext.P1 search list, on the basis of that, he prepared Ext.P3 FIR u/s.489(C) IPC. The seized articles were produced before Judicial First Class Magistrate, Bathery. The case was handed over to CBCID CFS Unit Kozhikode, during investigation PW9 added Section 489(B) r/w.34 IPC and added two persons as accused, for that he filed Ext.P4 report. PW10 & PW12 conducted investigation but they failed to produce any evidence to prove the possession of the house. MO1 note was examined in the Security Press, Nassik and obtained Ext.P7 report, appellant has no dispute with regard to the content of the report. But, there is no consistent version with regard to the seizure of MO1 counterfeit notes. PW11

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deposed that the seizure was at 18 hours from House

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No.IV/54, but PW7 stated that it was at 8 p.m. This inconsistency with regard to the time is relevant, when there is no independent evidence. According to PW11, MO1 was seized from a height of 2 metres and PW7 deposed that it was seized from a height of one metre. For a conviction under s 489B and s 489C, prosecution has to prove that the accused had either 'knowledge' or 'reasons to believe' that the currencynote or bank-note was forged or counterfeit when he sold, purchased, received, possessed or otherwise involved in trafficking in, or using as genuine, forged or counterfeit currency-note or bank-note. Mere possession of these notes in the absence of such requisite mens rea, is not sufficient to make out a case under s 489B or s 489C.

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Whenever an officer in charge of a Police

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Station or a Police Officer conducting investigation has reasonable grounds for believing that anything

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necessary for the purpose of an investigation into any offence, which he is authorised to investigate may be found within the limit of his Police Station and that such thing, cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specify in writing, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. While conducting a search without obtaining a search warrant the general provisions of searches contained

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in Section 100 and S.165 Code of the Criminal Procedure (in short 'Code') are applicable. S.165 of

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the Code must be followed in the matter of searches.

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Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search, if it is ignored the material part of the provisions governing searches are ignored and it cannot be said that the search was carried out in accordance with the provisions of the Code of Criminal Procedure. Here, PW11 failed to prepare search memorandum and not recorded his ground of belief before proceeding to search. That was omission to participate independent or respectful persons of the locality as to witness the search. That non-compliance with the provisions of Sections 100 and 165 would affect the weight of evidence in support of the search and seizure. The

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Court in such a case has to closely

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scrutinize the evidence of seizure and may refuse to

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act upon the solitary evidence of the police officer.

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When search was conducted after sunset, no search warrant was obtained and no search memorandum was prepared by the searching officer, the recovery devalues and the non-compliance with the searchprocedure would make the entry into the house as one

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without lawful authority.

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In State of Maharashtra v. Netwarlal

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Damodardas Soni [AIR 1980 SC 593] Apex Court held

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that even if search is illegal, it will not vitiate the

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seizure and further investigation. But when there is no connecting evidence to prove the search, it cannot be considered as illegality in the search. In another

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decision in State of Punjab v. Wassan Singh and others

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[1981 SC697] it was held that “mere omission on the part of

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the investigating officer to join with him some

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independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible. In Sunder Singh V. State of U.P. AIR 1956 SC 411 , it was held that non-compliance of Section 165 of the Code would affect the weight of evidence in support of the search and recovery. The court in such a situation has to scrutinise the evidence of seizure and refuse to act upon the solitary evidence of the Police Officer.” Here the entire procedures of search were violated by the detecting officer and omitted to include other independent witnesses to the search. Even though MO1 series were detected,there is no legal evidence to connect the accused with the alleged crime.

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The learned counsel has drawn my attention

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Crl. Appeal No.1829/2004 17

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towards the operative part of the judgment that the trial Court made a mistake at the time of deciding the matter that the accused was found guilty under Section 389(C) IPC alone, but no finding under Section 389(B). He urged that in such situation the doctrine of implied acquittal can be applied in such

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cases. It is true that the accused was charge sheeted by the trial Court under Section 389B and 389(C) IPC. But no finding under S.389(B) was recorded by the trial judge. It is the duty of the Judge to pronounce judgment in a case coming before him, which is self contained and would show that he had applied his mind to the facts of the case and the evidence therein. In a criminal trial the question is whether the accused at the trial is guilty of the crime with which he is charged. In arriving at the guilt of

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the accused, the Court has to analyse and discuss the

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evidence in the judgment. According to S.354 (1)(c) Cr.P.C, every judgment shall specify the offence (if any) of which, and the Section of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced.

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Where a charge has been framed against an

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accused person in a sessions case, the trial in that case would end either in acquittal or in conviction, but

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not in any other way. Therefore, laying a proposition that omission to record a finding on a charge amounts to implied acquittal is to mislead the correct law and it will put a premium on dereliction of duty on the part of the Sessions Judge. According to Section 354(3)

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(1) (c), of the Code, every judgment shall specify the

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offence (if any) of which and the section of the Penal

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Code or other law under which the accused is convicted and the punishment to which he is sentenced, if it be a judgment of acquittal the Court shall state the offence of which the accused is acquitted and direct that he be set at liberty. In the light of the mandatory provision of law, I am of the view that omission to record a finding is a flagrant breach of fundamental principles of writing judgment of acquittal or conviction. What is indicated is that an omission to record the decision of acquittal would frustrate the ends of justice. In my opinion a judgment delivered by a Court without due regard to the provisions of Section 354 of the Code, it is an imperfect judgment and the appellate court in exercise of its powers under Section 386 of the Code

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can direct the Sessions Judge to write a proper

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judgment in accordance with law.

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A Division Bench of Andhra Pradesh High Court in re K.V. Ayyaswamy, AIR 1965 Andhra 105 held that where facts do not exist from which an implied acquittal can be assumed, the Court would not be justified in treating the omission to record a finding on charge as being tantamount to an acquittal. The learned judges relied the decision of the Privy Council in Kishan Sing v. Emperor [AIR 1928 PC 254] in support of the above view.

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In the present case, accused was charged sheeted under Section 489 (B) and 489(C) Indian Penal Code and the trial Judge has not passed any order, either of conviction or acquittal in respect of

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the charge under S.489(B) r/w.34IPC, however the

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learned Sessions Judge convicted him under Section

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489(C) r/w.34 IPC alone. The omission of the Sessions Judge to convict the petitioner under

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Section 489(B), Indian Penal Code must in the circumstances, which cannot be held to mean that he was acquitted of that charge. Now the question is whether that omission was due to oversight or any other reason, which was not clear from the discussions. Analysing the facts and circumstances in this case omission in the judgment of the trial court itself is not a ground to remit the matter at this appellate stage. Prima facie no materials are available to convict the appellant under Section 489(B) IPC & 489(C). Remitting the matter to the Sessions Judge for writing proper judgment is vain exercise. Analysing the evidence in its totality, it is found that

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prosecution utterly failed to prove the case against the accused under Section 489(B) and 489(C) IPC.

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In the result, the conviction and sentence

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passed by the learned Additional Sessions Judge, Adhoc, Kalpetta under Section 489 (C) is set aside, at the same time prosecution failed to prove the case

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against the accused under Section 489(B) IPC and he is acquitted thereunder.

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This appeal is disposed of as above.

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P.D. RAJAN, JUDGE.

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acd

P.O.Sukumaran @ Kunhukunhu v. the Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

P.O.Sukumaran @ Kunhukunhu v. the Sub Inspector of Police

Case brief

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