Partly allowed

P.Shafi, v. State of Kerala

Kerala HC12 Mar 2021CRL.A/1398/2006

Case brief

AI extract

What is this about?

The High Court affirmed the conviction of the appellant under Section 489-B IPC for possessing counterfeit currency notes. While rejecting claims of excessive sentencing due to the passage of time, the Court reduced the imprisonment term from five years to three years, maintaining the fine.

What did the court decide?

Conviction confirmed; sentence reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment; fine maintained.

P.Shafi, Vs State of Kerala — Money Laundering | Kerala HC (2021)

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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 DR. KAUSER EDAPPAGATH

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FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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CRL.A.No.1398 OF 2006

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AGAINST THE JUDGMENT IN SC 533/2004 DATED 17-07-2006 OF SESSIONS COURT,KASARAGOD

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AGAINST THE ORDER/JUDGMENT IN CP 1/2004 DATED 13-01-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG

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APPELLANT/ACCUSED NO.1:

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P.SHAFI, AGED 33 YEARS S/O.MUHAMMED, C.H.NAGAR,, NEAR CRESENT SCHOOL, PALLIKARA,, NILESWARAM, KASARAGOD DISTRICT.

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BY ADV. SRI.JAWAHAR JOSE

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RESPONDENTS/COMPLAINANTS:

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1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 STATION HOUSE OFFICER NILESWARAM POLICE STATION.

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R1 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 0303-2021, THE COURT ON 12-03-2021 DELIVERED THE FOLLOWING:

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J U D G M E N T

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Dated this the 12^th day of March, 2021

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This is an appeal filed by the first accused in SC No. 533/2004 on the file of Court of Session, Kasaragod. He stands convicted and sentenced for committing offence punishable u/s 489-B of Indian Penal Code (for short I.P.C.).

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The prosecution case in short is that on 11/8/1999 at 6.00 p.m., PW1, Sub Inspector of police, Nileshwar, got a secret information and the same was recorded in the General Diary. Based on the same, he along with the police party proceeded to Sree Krishna Lottery Stall situated near Nileshwaram bus stand. PW2, salesman at Sree Krishna Lottery Stall, pointed out the appellant/accused No.1 to PW1. They took the appellant to a nearby police check post and on search by PW1 on the body of the appellant, seized 4 counterfeit currency notes of denomination of `100/-. On questioning the appellant, he told him that those currency notes were given by the 2^nd accused. PW1,

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then, arrested the appellant as per an arrest memo marked as Ext.P1. Thereafter, PW1 lodged the FIR, marked as Ext.P3. The appellant/accused was produced before the Court on the next day and he was remanded to judicial custody. On the basis of the said allegations, the prosecution was lodged against the appellant as well as the 2^nd accused.

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On receipt of summons, the appellant as well as 2^nd accused appeared before the Court below. After hearing both sides, the charge was framed against the appellant and the 2^nd accused for the offence punishable u/s 489-B r/w 34 of I.P.C. The charge was then read over and explained to both accused who pleaded not guilty.

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The prosecution examined PWs 1 to 4 and marked Exts.P1 to P5. MOs 1 to 4 were identified. The accused were questioned u/s 313 of Cr.P.C. They denied all the incriminating circumstances brought against them during the evidence. They submitted that they are innocent. No defence evidence was adduced. Considering the evidence on record, the Court below found the appellant/1^st accused guilty u/s 489-B of I.P.C. The

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appellant/1^st accused was convicted and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of `5,000/-, in default to suffer simple imprisonment for one year u/s 489-B of I.P.C. The 2^nd accused was found not guilty and he was acquitted. Aggrieved by the said conviction and sentence, the appellant/1^st accused preferred this appeal.

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Heard the learned counsel for the appellant as well as the learned Public Prosecutor.

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The learned counsel appearing for the appellant impeached the findings of the Court below on appreciation of evidence and resultant finding as to guilt. The counsel submitted that there are much contradictions with respect to the oral testimony of PW1 as compared to the evidence of PWs 2 and 3. The learned counsel further submitted that Ext.P5 expert report has not been legally proved by the prosecution. It was argued that the conclusion of the Court below leading to the conviction of the accused u/s 489B is contrary to law and the reason stated by the Court below to hand down such order of conviction is unsustainable. The counsel added that, at any rate, the sentence

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awarded is excessive. The learned Prosecutor supported the findings and verdict handed down by the Court below and argued that necessary ingredients of S.489-B had been established and the prosecution has succeeded in proving the charge beyond reasonable doubt.

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The prosecution relied on the oral testimony of PWs 1 to 4 to prove its case and to fix the culpability on the accused. PW1 is the detecting officer. PW2 and 3 are independent witnesses who witnessed the seizure and PW4 is the investigation officer. PW1 deposed that on 11/3/1999, while he was in the police station at 6.00 p.m, he received a secret information. The same was recorded in G.D. and based on the same, he along with the police party proceeded to Sree Krishna Lottery Stall situated near Nileshwar bus stand. PW2, the salesman at the lottery stall, pointed out the appellant and they intercepted him and took him to the nearby police check post. In the presence of the witnesses, he searched the body of the appellant and found 4 currency notes denomination of `100/- each from his shirt pocket. PW1 deposed that he examined those notes meticulously and

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convinced that those were fake notes. Then he arrested the appellant under Ext.P1 arrest memo. As to the seizure of 4 currency notes, he prepared Ext.P2 mahazar in the presence of witnesses. He identified MOs 1 to 4 as currency notes seized from the appellant. PW2 deposed that on 11/3/1999 at about 6.00 p.m., one person came to his lottery stall to purchase lottery ticket. He purchased two Jai Mathrubhumi lottery tickets costing 5/- each and he gave a currency note of denomination 100/-. He doubted its genuineness. Hence he gave back the currency note to that person and intimated the matter to the police over phone. PW1 and police party came there. He pointed out that person to the police. He identified the appellant before the Court. He further deposed that the currency note of denomination of `100/given by the appellant on the date of incident was like that of MO1 to MO4. PW3 is the owner of Sree Krishna Lottery Stall. He gave evidence that during the period of occurrence, PW2 was the salesman in his lottery stall. The police seized fake notes from the appellant in his presence. He signed in Ext.P1 arrest memo as a witness. In Ext.P2 seizure memo also, he stood as a witness. He

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also identified the appellant as the person from whom fake notes were seized by the police. PW4 is the successor of CW9 who conducted investigation at the first instance. CW9 is no more.

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On the basis of the testimony of PWs 1 to 3, search and seizure were proved to the satisfaction of the Court below. The Court below rightly acted upon such evidence. PW1 gave details about getting source of information, the search and recovery of counterfeit notes and attended factors. He stated that he received information from a secret source. Corroborating materials in the form of testimony of the policemen are trustworthy. The learned counsel for the appellant highlighted few contradictions in the evidence of PWs1 to PW3. PW1 deposed that the appellant possessed only 4 counterfeit notes and those were seized from the pocket of his shirt. On the other hand, PW2 deposed that the appellant possessed nearly 10 currency notes and the police recovered the currency notes from the pockets of his pant. PW3 deposed that the appellant possessed 6 to 7 currency notes and many other currency notes in the pocket of his pant and the police recovered the currency

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notes from the pocket of his pant. These contradictions are not at all significant and not fatal to the prosecution case. The Supreme Court in State of Uttar Pradesh v. Naresh and Others [(2011) 4 SCC 324] has held that minor contradictions, inconsistencies, embellishments or improvements are not fatal to the prosecution and that normal discrepancies are bound to occur due to normal errors of observations, errors of memory due to lapse of time etc., and marginal variations cannot be termed as improvements. The occurrence was on 11/3/1999. The witnesses were examined on 16/6/2006, after 7 years. Therefore, such discrepancies are bound to occur. In all material particulars, they have deposed truly and clearly. Having gone through the oral evidence, I do not see any material contradiction among any of the witnesses in relation to the information, search and recovery of counterfeit notes.

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The material evidence on record in the form of oral testimony regarding search and seizure and documentary evidence as well as the recovered articles are proved through cogent evidence. They correlate and connect the material

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particulars regarding the commission of the crimes charged. The seizure was followed by appropriate preservation, labelling, sealing and other due processes which enabled the recovered articles being preserved tamper proof and made available for examination by the expert. Such examination led to Ext.P5 report of the expert, which has been admitted in evidence and its contents were believed and acted upon, on due examination by the Court below. As per the report of the expert, the referred currency notes were found to be counterfeit notes. The learned counsel for the appellant argued that Ext.P5 had not been legally proved by the prosecution. I cannot subscribe to the said argument. Ext.P5 is the report of examination of the counterfeit currency notes by the Government of India, Bank Note press. This is admissible u/s 292 Cr.P.C without examining the expert. This report refers to the counterfeit currency notes seized by PW1 as per mahazar. The report shows that on examination at the Bank Note Press, the notes received were identified as counterfeit notes. It is pertinent to note that the genuineness of Ext.P5 report stands not challenged. There is no reason to denounce the

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evidentiary value of the expert's report. Insofar as the material witnesses are concerned, there is adequate corroboration and there is no contradiction worthy enough to dislodge the credibility of the testimony of the witnesses. Not only that, the police officials who were involved in the process are not shown to have any particular interest, hostile to the accused persons. I do not find any legal infirmity or error in the appreciation of the evidence by the Court below in that regard.

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The learned counsel for the appellant argued that even if the seizure stands proved, the prosecution failed to establish that the appellant had received or possessed the currency notes and used the same as genuine with the knowledge that it was forged or counterfeit notes. The counsel added that mere possession of the counterfeit notes is not sufficient to attract S.489B of I.P.C. and the prosecution has to further prove that possession was with reasonable belief and knowledge, which they miserably failed. The learned counsel has cited a decision of the Supreme Court in Umashanker v. State of Chhattisgarh [(2001) 9 SCC 642] in support of his argument.

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It is true that to attract the offence u/s 489-B, mere possession of the counterfeit note is not enough. There must be evidence to show that the accused sells or buys, or receives from any other person or otherwise traffics in or use as genuine, any forged or counterfeit note or bank note, knowing or having reason to believe that same to be forged or counterfeit. Adverting to the material evidence on record and the findings of the Court below, it can be seen that the interception, search and recovery were on the basis of secret information. On questioning the appellant at the spot, he stated that the counterfeit notes were given to him by the 2^nd accused. However, the appellant did not offer any explanation when questioned u/s 313 of Cr.P.C. regarding the possession of counterfeit notes nor did he adduce any evidence in defence to explain the possession of counterfeit notes. He did not explain his relationship with the 2^nd accused. He also did not explain for what purpose and under what circumstances the notes were handed over to him by the 2^nd accused. S.106 of the Evidence Act enjoins that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon

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him. In terms of S.106 of the Evidence Act, the burden of proof of acts within the knowledge of the appellant regarding the nature of possession of counterfeit notes was not discharged. That apart, the Court below perused MO1 to MO4 and satisfied that a mere look at those notes would convince anybody that they were fake notes. From these facts and circumstances, it can be inferred that the appellant knew that MO1 to MO4 in his possession were counterfeit notes and he made an attempt to sell one of those notes to PW2. For these reasons, the conviction of the appellant stands and accordingly I affirm the finding of guilt and the conviction of the appellant by the Court below.

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The next question is regarding sentence. The Court below has imposed rigorous imprisonment for 5 years and to pay a fine of `5,000/- in default to suffer simple imprisonment for one year. The learned counsel for the appellant submitted that sentence imposed is excessive. No previous conviction is reported against the appellant. The detention was in the year 1999. 22 years have been elapsed since the date of detention. On consideration of various aspects, I am of the view that

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substantive sentence imposed by the Court below can be reduced to rigorous imprisonment for three years.

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In the result, the appeal is allowed in part. The conviction against the appellant u/s 489-B of I.P.C. is confirmed. However, the substantive sentence imposed by the Court below u/s 489-B of the I.P.C. will stand modified and reduced to rigorous imprisonment for 3 years. The fine imposed by the Court below is maintained, with default sentence thereof. The appellant shall surrender before the Court below within four weeks from this date to suffer the modified sentence, and to make payment of the fine

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amount, failing which, steps shall be taken by the court below to enforce the modified sentence and to realise the amount of fine, or enforce the default sentence.

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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P.Shafi, v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.Shafi, v. State of Kerala

Case brief

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What did the court decide?

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