Dismissed

James, S/O. Thomas, v. State of Kerala,Rep.by the

Kerala HC6 Jun 2023CRL.A/524/2006

Case brief

AI extract

What is this about?

Court dismissed criminal appeal challenging conviction for possession of counterfeit currency notes. It held that contemporaneous documents and corroborative witness testimony established guilty knowledge and overruled claims regarding inconsistencies and delay.

What did the court decide?

Appeal dismissed confirming conviction and sentence of two years rigorous imprisonment and fine of Rs.2,000 each.

James, S/O. Thomas, Vs State of Kerala,Rep.by the — Cheque Dishonour | Kerala HC (2023)

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 6TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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CRL.A NO. 524 OF 2006

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[AGAINST THE JUDGMENT IN S.C.NO.85/2005 DATED 14.2.2006 ON THE FILE

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OF THE ADDITIONAL SESSIONS JUDGE, KOTTAYAM]

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APPELLANT/ACCUSED NOS.1 AND 2:

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1JAMES, S/O. THOMAS,
ANASSERIYIL VEEDU, NELLITHANATHUMANA KARA,, KURICHITHANAM
VILLAGE, KOTTAYAM DISTRICT.

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2KURIAKOSE @ JOY @ SUNNY
PLACKAL VEEDU, PINNAKKANADU BHAGOM, PADINJATTUMALA KARA,
KONDOOR VILLAGE, KOTTAYAM.
BY ADVS.
SRI.T.D.ROBIN
SRI.R.ANUP

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RESPONDENT/S:

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STATE OF KERALA,REP.BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY ADV.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2023,
THE COURT ON 06.06.2023 DELIVERED THE FOLLOWING:

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CRL.A. No.524 /2006 2

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JUDGMENT

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The appellants in this case are accused Nos.1

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and 2 in S.C. No.85/2005 on the file of the

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Additional Sessions Court, Kottayam. The aforesaid
Sessions Case arose from Crime No.42/2002 of
Kuravilangadu Police Station, which was registered
for the offences punishable under sections 489B &
489C r/w.34 of the Indian Penal Code (IPC) against
three accused persons.

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2.The prosecution case is as follows:

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On 6.2.2002 at about 1.30 p.m., the Circle

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Inspector of Police, Pala, got the information
that two persons, including one James and one
Kuriakose, who were at the relevant time at the

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Bar hotel named ‘Zodiac’ and consuming alcohol,

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had counterfeit currency notes in their

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possession. Thereupon, the Circle Inspector of
Police, Pala, went to the Sub Inspector of Police,

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CRL.A. No.524 /2006 3 Kuravilangadu and they, along with the police party, reached the Zodiac Bar. Thereupon, it was found that the 1^st and 2^nd accused, who matched the

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description in the information received by the
Circle Inspector of Police, were consuming alcohol
by sitting on the south-western corner of the bar.
When the 1st accused was interrogated, a plastic
bag he held at the relevant time was handed over
to the 2nd accused, who attempted to move away with
the same. Both of them were apprehended, and upon
opening the plastic cover, it was found that one
dhoti and bath towel were kept in the bag. Upon
examining the dhoti kept in the bag, they could
recover 30 currency notes of 100 denominations and
three currency notes of 50 denominations. On
examination, it was found that the currency notes
were counterfeit; accordingly, both were arrested,

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and articles seized. During the course of
investigation, the appellants herein revealed that

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CRL.A. No.524 /2006 4

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they got the currency notes from the 3rd accused,
and thereupon, further investigation conducted,
during which, the 3rd accused was arrested on
14.03.2002. Later, during the search conducted at
the house of PW5, the 2nd wife of 3rd accused, the
police could recover two counterfeit currency
notes of 100 rupee denomination. Thereafter, the
investigation was taken over by the Crime Branch
CID and after completing the same, a final report
was submitted for the offence mentioned above
against the accused persons. The said report was
taken into the file as C.P.No.22/2004 by the
Judicial First Class Magistrate Court, Pala and
later, the same was committed to the Sessions
Court, Kottayam. The trial of the said case was
conducted before the Additional Sessions Court,
Kottayam, as S.C.No.85/2005.

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3.PWs.1 to 7 were examined in support of the

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prosecution case. Exhibits P1 to P19 were marked,

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CRL.A. No.524 /2006 5

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and material objects 1 to 13 were identified. The
contradictions in the statement of CW8/PW3 were
marked as Exhibit D1 and D3, and the remand

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extension report dated 28.5.2002 of the accused
persons was marked as Exhibit D2. After completion

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of the prosecution evidence, accused persons were
examined under section 313 of the Code of Criminal
Procedure (Cr. PC) and the incriminating materials
brought out during the trial were put to all the
accused persons. They denied the same and pleaded
that they were falsely implicated in the said
case.

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4.After appreciating the materials placed on
record, the learned Sessions Judge concluded that
the 3rd accused is not guilty of any of the
offences alleged against him and was acquitted. As

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regards accused Nos.1 and 2, who are the
appellants herein, the learned Sessions Judge

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found them guilty of the offence under section

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CRL.A. No.524 /2006 6

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489C r/w. 34 of the IPC and found them not guilty
under section 489B of the IPC. Accordingly, the
appellants were sentenced to undergo rigorous
imprisonment for two years each and to pay a fine
of Rs.2,000/- each under section 489C r/w. 34 of

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IPC with a default sentence to undergo simple
imprisonment for three months. This appeal is

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filed challenging the conviction and sentence
imposed against the appellants.

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5.Heard Sri.T.D.Robin, the learned counsel

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for the appellant and Sri.Sudheer Gopalakrishnan,
the learned Public Prosecutor for the Stae.

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6.The learned counsel for the appellants
submits that the prosecution miserably failed to
establish the guilt of the accused. It is
specifically pointed out that the crucial evidence
that was relied on by the prosecution is that of
PWs.1 and 2, who are Circle Inspector of Police
and Sub Inspector of Police. There are certain

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CRL.A. No.524 /2006 7

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material contradictions between their evidence as

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to the manner in which the seizure of the articles
and the arrest of the appellants were affected.

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Besides the same, there are serious discrepancies
and embellishments in their evidence about the

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details of the information received by PW1 based
on which they conducted the search. It is also

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pointed out that there is no proper corroboration

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of the evidence of PWs.1 and 2. It was also

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contended that the evidence given by PW3, which
was relied on by the prosecution as an independent
witness, was not trustworthy. The further
contention was that there was a delay in recording
the statement of PW3 by the investigation officer.
It is also pointed out that, even if it is assumed
for the argument's sake that articles were seized
from the possession of the accused persons, that
by itself is not sufficient to hold the appellants
guilty as there is nothing to indicate their

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CRL.A. No.524 /2006 8

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conscious possession over the article.

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7.On the other hand, the learned Public

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Prosecutor would oppose the aforesaid contentions.

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It is pointed out that the evidence of official
witnesses viz. The evidence of PW3, an independent
witness, corroborated the evidence of PWs. 1 and
2. The contemporaneous documents, such as Exhibit
P1 search memorandum, Exhibit P2 seizure mahazar,
Exhibit P3 FIR, and the evidence of PWs.1 to 3,

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would establish the prosecution case beyond
reasonable doubt. In such circumstances, there is
no interference in the findings of the learned

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Sessions Judge is warranted, contends the learned
Public Prosecutor.

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8.I have gone through the records. One of the

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crucial contentions raised by the learned counsel
for the appellants is concerning the inconsistency
in the evidence of PWs.1 and 2. PW1 is the Circle
Inspector of Police, Pala, and his evidence is to

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CRL.A. No.524 /2006 9 the effect that on 6.2. 2002 at about 1.30 p.m., he got an information that the accused persons were at Zodiac Bar at Uzhavoor, and they were in possession of counterfeit currency notes. Immediately thereafter, as there was no time to obtain a search warrant from the court, he prepared a search memorandum and sent the same to

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the court. Exhibit P1 is the said search
memorandum, and thereafter, he, along with PW2 Sub
Inspector of Police, Kuravilangadu and the police
party went to the Zodiac Bar, where they could
find the accused persons sitting in the bar hotel.
Upon approaching the 1st accused, he immediately
handed over the plastic cover, which contained an
endorsement ‘Munch’, to the 2nd appellant, who in
turn tried to move away from the place. However,
both of them were apprehended, and the bag was

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inspected. Thereupon, they could recover
counterfeit currency, as mentioned above.

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CRL.A. No.524 /2006 10

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9.PW2 is the Sub Inspector of Police,
Kuravilangadu Police Station, who accompanied PW1
while conducting the search and affecting the

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arrest of the accused persons. His evidence is

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more or less the same to that of PW1. No
inconsistency is seen in his evidence, but the
only difference is that even though PW2 had stated
that, upon being interrogated, the 1st appellant

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handed over the plastic cover to the 2nd
appellant, he did not mention that the 2nd

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appellant attempted to move away from the place,
and instead, he stated that the plastic cover was
examined by PW1. Even though the learned counsel
for the appellants highlighted the same as a
inconsistency in their depositions, I am of the
view that this is not a serious aspect which
affects the credibility of the said witnesses. The
learned counsel for the appellants vehemently
contends in this regard by placing reliance upon

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CRL.A. No.524 /2006 11 the fact that, in the statement given by PW1 to the investigating officer (PW6), he had not stated about the fact that, at the time of questioning the 1st appellant, he handed over the plastic cover to the 2nd appellant who in turn attempted to move away from the spot. Therefore, it is pointed out that the evidence of PW1 cannot be

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believed at all. The learned counsel for the
appellants relies on the decision rendered by the
Hon’ble Supreme Court in Sukhram v. State of M.P.
[AIR 1989 SC 772]. Another decision rendered by
the Madhya Pradesh High Court in Neeraj v. State
of M.P. The principles laid down in the aforesaid
decisions are with regard to the inconsistency in
the evidence of two witnesses, and it was observed
that when the witness has not been treated as
hostile by the prosecution, discrepancies in their
evidence have serious ramifications as regards the
prosecution case. When I apply the principles laid

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CRL.A. No.524 /2006 12

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down in the decisions referred above to the facts
and circumstances of this case, I am unable to
find any specific discrepancy in the evidence of
PWs.1 and 2. The only difference, as mentioned
above, is that PW2 has not reiterated some parts
of the statement given by PW1. But merely because
of that reason, it cannot be treated as an
inconsistency as such. As rightly pointed out by
the learned counsel for the appellants, the
statement of PW1 is to the effect that upon

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handing over the plastic cover to the 2nd
appellant, he attempted to move away from the
place. Such a statement is not made by PW2.
However, merely because of that reason, the

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evidence of these witnesses cannot be discarded as

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such. This is mainly because contemporaneous
documents such as Ext.P1 search memorandum, Ext.P2
seizure mahazar and Ext.P3 FIR contain statements
to that effect. It is also true that such a

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CRL.A. No.524 /2006 13

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statement is not there in the Section 161

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statement given by PW1 to PW6. However, as is
revealed from Exts.P1 to P3 right from the

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inspection, the specific case of the prosecution
was to the effect that upon being questioned, the

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1st accused handed over the plastic bag to the 2nd
accused, who in turn attempted to move away from
the place immediately thereupon. Therefore, I do
not find any reason to discard the evidence of PW1
with respect to this. This is mainly because the
evidence of PW2 supports the version of PW1 upto
the stage where the 1st accused had handed over
the plastic cover to the 2nd accused. Thus, when
all the aspects are considered, I do not find any
discrepancy in the evidence of PWs.1 and 2, and
therefore the contention put forward by the
learned counsel for the appellants in this regard
is not legally sustainable.

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10.There is yet another aspect which fortifies

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CRL.A. No.524 /2006 14

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the view taken above. PW3 is the Manager of the

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Bar, and his evidence is that on 6.2.2002, he

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found PWs.1 and 2 entering the bar, and when he

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reached inside the bar, he found that the
appellants were being questioned. He also

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witnessed the recovery of the articles, and he is
a party to Exhibit P2 mahazar and signed it. He

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supported the case of the prosecution. Thus it is
evident that PW3 corroborates the evidence of PWs.
1 and 2 to a greater extent.

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11.Another contention put forward by the

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learned counsel for the appellants is concerning

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the delay in recording the statement of PW3. It is

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pointed out that the statement of PW3 was taken

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three months after the incident. Reliance was also
placed on the decision rendered by the Hon’ble
Supreme Court in Bhagwan and another v. State of

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M.P.[AIR 1980 SC 1750]. However, the factual

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circumstances under which the decision rendered by

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CRL.A. No.524 /2006 15 the Hon’ble Supreme Court differs from that of this case. That was a case in which the statement of one of the crucial eyewitnesses was recorded

¶101

much belatedly, which compelled the Hon’ble
Supreme Court to make such observations. However,

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the said judgment was rendered on the factual
circumstances of that case. As far as the factual
situation, in this case, is concerned, the crucial
aspect to be noticed is that accused persons were
caught red-handed along with counterfeit currency
notes. The seizure of articles and the arrest of
the accused persons were established by the

¶103

evidence of PWs.1 and 2 coupled with the
contemporaneous documents such as Exts.P1 and P2.

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The deposition of PW3 is a corroborative piece of
evidence supporting the version of Pws 1 and 2.
Considering the materials placed on record, I do
not find that the delay in recording the statement
of PW3 is a serious discrepancy which warrants

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CRL.A. No.524 /2006 16 interference in the finding entered by the learned Sessions Judge. This is mainly because, in the light of the contemporaneous documents referred to

¶106

above and the evidence of PWs.1 and 2, the
possibility of getting a manipulated statement of
PW3 is much less and therefore, I do not find any
reason to accept the contention raised by the
learned counsel for the appellants in this regard.
Even though the learned counsel for the appellants
contended that PW3 could not be treated as an
independent witness, there are no materials which
affect his independent status as a witness.
Similarly, the learned counsel for the appellants
also raised a contention about the credibility of
PW6, the investigating officer who conducted a
substantial part of the investigation. It was
contended that he was a person accused of a
heinous offence and was later found guilty.
However, even if the criminal background of PW6 is

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CRL.A. No.524 /2006 17

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accepted, that by itself cannot be a reason to
hold that the investigation conducted by him is
liable to be discarded as such. In this case, the
prosecution case is established by the evidence of
Pws.1 and 2, the police officers, who detected the
offence. Their evidence is corroborated by the
evidence of PW3, and their version is further
fortified by the contemporaneous documents such as
Exhibits P1 and P2. In such circumstances, it is

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to be noticed that the mere fact that the officer
who conducted the investigation has criminal
antecedents cannot be a material aspect affecting
the prosecution case. Thus, the aforesaid
contention raised by the learned counsel for the
appellants is also liable to be rejected.

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12.The further contention of the learned

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counsel for the appellants is concerning the
conscious possession of the articles by the
accused persons. In this regard, the learned

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CRL.A. No.524 /2006 18 counsel for the appellants places reliance upon the judgment rendered by the Hon’ble Supreme Court in M.Mammutti v. State of Karnataka [AIR 1979 SC 1705]. It is true that in the said decision, the Hon’ble Supreme Court has categorically held that mere possession of counterfeit currency notes by itself cannot be treated as ground to hold the accused guilty of the offence under section 489B or 489C of IPC. It is observed therein that if a

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mere look at them would convince anybody that they
were fake notes, it could be presumed that the
accused had knowledge or reason to believe they
were counterfeit currency notes. It was pointed
out by the learned counsel for the appellants that

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there is nothing in this case to indicate the
characteristics of the currency are such that, a
mere look would convince any person of ordinary
intelligence that it was a fake currency note.
Therefore, unless the prosecution clearly

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CRL.A. No.524 /2006 19

¶116

establishes the knowledge of the appellants with

¶117

regard to the fakeness of the currency notes, no
conviction could be sustained, contends the
learned counsel for the appellants. Indeed, Pws.1
and 2 have not mentioned in their depositions that
a mere look at the currency note would make any
person of ordinary intelligence understand the

¶118

falseness of currency notes. However, there are
certain other glaring aspects which indicate the
knowledge of the appellants as to its fakeness. It
is discernible from the materials placed on record

¶119

that at the time of the seizure of counterfeit
notes, the same were kept concealed in a plastic
cover held by the 1st accused, even though he was
carrying a purse, which contained an original
currency note of Rs.100/-. Immediately upon being
questioned, the 1st accused handed over the plastic

¶120

cover to the 2nd accused, who attempted to flee

¶121

from the said place. When all these aspects are

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CRL.A. No.524 /2006 20 considered, it pinpoints the knowledge of the accused persons regarding the false nature of the currency notes. Besides the same, in the bag containing the MO1 and MO2 series of currency notes, no genuine currency notes were kept. Thus, it is evident that the appellants were possessing the said currency notes with the specific knowledge of its fakeness, and the contentions raised by the learned counsel for the appellants are only to be rejected.

¶123

13.Thus, from all the above aspects, it is

¶124

evident that the prosecution was able to establish
the case against the appellants as far as the
offence under section 489C of IPC is concerned,
beyond any reasonable doubt. As mentioned above,

¶125

the evidence of Pws.1 and 2 establishes the
sequence of events that led to the recovery, which
is corroborated by the evidence of PW3. Exhibits
P1 to P3, which are contemporaneous documents,

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CRL.A. No.524 /2006 21

¶127

supports their version. Currency notes were found
to be counterfeit as per Ext.P14 report of the
expert. Thus all the ingredients of the offence

¶128

under section 489C IPC are established.

¶129

In such circumstances, I do not find any
merits in this appeal. Accordingly, it is

¶130

dismissed by confirming the conviction and
sentence imposed by the learned Additional

¶131

Sessions Judge, Kottayam, in S.C.No.85/2005.

¶132

 Sd/-

¶133

ZIYAD RAHMAN A.A. JUDGE

¶134

pkk

James, S/O. Thomas, v. State of Kerala,Rep.by the

Case brief

What is this about?

What did the court decide?

James, S/O. Thomas, v. State of Kerala,Rep.by the

Case brief

What is this about?

What did the court decide?

What the court decided

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