Allowed revision against conviction for counterfeiting. Found courts erred in relying on confession made while accused were not in police custody and failed to prove mens rea for circulation.
Conviction and sentence of three years rigorous imprisonment against appellants set aside.
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HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY
CRIMINAL REVISION CASE No.753 of 2005
Date: 03-08-2012
Between: Guttula Satyanarayana and 2 others.
..Petitioners/Appellants/A1 to A3
Versus The State of A.P., Rep. By its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent.
HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.753 of 2005
JUDGMENT:
This Criminal Revision Case is preferred against judgment, dated 04.05.2005, rendered in Criminal Appeal No.53 of 2003 on the file of VI Additional District and Sessions Judge (FTC), East Godavari, Rajahmundry, confirming conviction and sentence imposed in Sessions Case No.8 of 2002 dated 07.03.2003 on the file of Assistant Sessions Judge, Amalapuram.
2. The Petitioners are A-1 to A-3 in the Sessions Case and appellants 1 to 3 in the appeal, whereas the respondent is the complainant in the Sessions Case and also in the appeal. For the sake of convenience, I refer the parties as arrayed in the Sessions Case.
3. The prosecution case in brief is as follows. A-1 is a resident of Annampalli and a coconut plucker, A-2 is a resident of Thillakuppa and A-3 is a resident of Yanam. They are having no honest means of livelihood. A-1 to A-3 are close friends. They conspired together and hatched a plan to cheat innocent people and for the said purpose they secured two fake hundred-rupee notes each bearing No. 9 FD 549752 only and one fake ten-rupee note bearing No.68P 398137 from one unknown person at Yanam. They also secured one black paper, which is used in photo studios, which was cut in Rs.50/- note size into 20 bundles, two chemical bottles, one album for keeping the fake notes and one Panasonic phone. On 23.03.2001, on receipt of a phone message, P.W.5-Sub Inspector of Police, Mummidivaram, rushed to the house of A-1 at Annampalli along with his staff, P.Ws.1 and 2, and
also V.A.Os., at 4.30 P.M and arrested A-1 to A-3 and got recorded their confessional statements and seized the 20 bundles of black paper, Panasonic phone and album from the possession of A-1 and two fake hundred rupee notes and one hundred rupee notes from the possession of A-2 and two bottles containing some liquid from the possession of A-3 under cover of a mediators report in the presence of mediators. He examined one Vithanala Malleswararao and P.W.3 at the house of A-1, prepared rough sketch of the scene of offence, brought the seized property and the accused to the police station and registered the case on the basis of the mediators report in Crime No.40 of 2001 under Section 489 (c) read with Section 34 of I.P.C. and sent the accused for judicial remand. During the course of investigation, P.W.5 got examined the fake notes and liquid bottles by the Assistant Director, FSL, Hyderabad, who opined that the two hundred rupee notes were counterfeit notes and ten rupee note was not a counterfeit note and the liquid was tincture of iodine. 4. After the appearance of A-1 to A-3, a charge under Section 489 (c) read with Section 34 of I.P.C. was framed, read over and explained to them in Telugu, they denied the charge and claimed to be tried.
5. For the prosecution, P.Ws.1 to 5 were examined and got marked Exs.P1 to P5 and M.Os.1 to 8. On behalf of the defence, no oral or documentary evidence was adduced. After the closure of the prosecution evidence, A-1 to A-3 were examined under Section 313 Cr.P.C. regarding incriminating evidence recorded against them which they denied.
6. After considering the evidence adduced, the trial Court found A-1 to A-3 guilty of the offence punishable under section 489 (c) read with Section 34 of I.P.C. having accepted the arrest of A-1
to A-3 and seizure of the contraband material from their possession and also their confession of committing the offence. It is the observation of the trial Court infact that when A-1 to A-3 made the confession of committing the offence, they were not in the custody of the police and as such the confession was admissible in evidence. Accordingly, the trial Court convicted A-1 to A-3 under Section 235 (2) Cr.P.C. for the said charge and sentenced them to undergo Rigorous Imprisonment for a period of three years vide judgment, dated 07-03-2003, whereas against the said conviction and sentence, A-1 to A-3 filed the Criminal Appeal No.53 of 2003 on the file of VI Additional District and Sessions Judge (FTC), East Godavari, Rajahmundry, which was dismissed and challenging the same, A-1 to A-3 have preferred this Revision.
7. Learned Counsel for A1 to A3 would contend that by virtue of Section 25 of the Indian Evidence Act confession made by an accused person to a police officer while he is not in the custody of the police officer is not admissible in evidence. Learned Counsel has not touched about the question of arrest of the accused and seizure of the contraband material from them. He further contends that in order to convict A1 to A3 for the offence punishable under section 489 (c) read with Section 34 of I.P.C. it should be established that they got mens rea to circulate the counterfeit currency notes to others with a dishonest intention, which is absent here. He has placed reliance upon a decision of the Supreme Court in Umashanker V. State of Chhattisgar h[1] in this context.
8. Learned Additional Public Prosecutor has contended that pertinently the prosecution could be able to establish that the police arrested A1 to A3 and seized the contraband material from
them. The fact that they were in the possession of the counterfeit currency notes makes it very clear that they got intention to circulate the notes to others with dishonest intention. According to learned Additional Public Prosecutor, the Courts below properly examined the matter and there is no reason to interfere with the conviction and sentence imposed against A-1 to A-3.
9. Therefore, it is to be seen as to whether the ingredients of Section 489 (c) read with Section 34 of I.P.C. are established and the conviction and sentence imposed against A-1 to A-3 by the trial Court which were confirmed by the appellate Court are tenable or not?
10. There is good evidence to the effect that the police concerned arrested A-1 to A-3 and seized the contraband material from them. With regards to the question of confession as the basis for coming to the conclusion that there was mens rea on the part of A-1 to A-3 to circulate the counterfeit currency notes to others with dishonest intention, Section 25 of the Evidence Act provides that any confession made by a person to a police officer while he is not in the custody of a police officer is not admissible in evidence. On the other hand, Section 26 of the Evidence Act provides that any confession made by a person to a police officer while he is in the custody of a police officer is also not admissible in evidence. The Courts below clearly observed that A-1 to A-3 made confession to the police officer while they were not in the custody of the police officer. So the Courts below committed an error in holding that the confession made to the police officer while not in the custody of the police officer is admissible in evidence. Pertinently, the allegations made make it very clear that the police officer found A-1 to A-3 in possession of counterfeit currency notes and then A-1 to A-3 made confession and then he seized the
counterfeit currency notes and other material and then the mediators report was prepared. In order to say whether they were in the custody of the said police officer at the time of the seizure of the contraband material, the overall circumstances of the case are to be taken into consideration. In order to establish the question of mens rea of A-1 to A-3, the possession of currency notes with an intention to circulate them to the public with a dishonest intention also, the overall circumstances are to be taken into consideration. 11. There is no basis to show that A-1 to A-3 involved in the commission of alleged offence having necessary mens rea or were having an intention to prepare the currency notes using necessary material. M.Os.1 and 2 are the fake 100 rupee notes each bearing Nos.9 FD 549752. M.O.3 is the fake 10-rupee note bearing No.68 P 328136. M.Os.4 and 5 are the injection bottles. M.O.6 is the album. M.O.7 is the 20 bundles of black papers and M.O.8 is the Panasonic phone. The prosecution utterly failed to prove that A-1 to A-3 used M.Os.4 to 7 for the purpose of preparation of counterfeit currency notes. There is also no evidence to the effect that, in fact, the police officer found A1 to A3 while they were circulating the counterfeit currency notes with dishonest intention or otherwise. Under these circumstances it is very difficult to say that in fact A-1 to A-3 were in possession of the currency notes with a dishonest intention to circulate them to the public.
12. In the decision cited under similar circumstances, the Supreme Court observed as under:
“A perusal of the provisions extracted above, shows that mens rea of offences under Sections 489B and 489-C is, “knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit”. Without the aforementioned mens rea selling, buying or receiving from another person or
otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes, is not enough to constitute offence under Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency-notes or banknotes is not sufficient to make out a case under Section 489-C. In the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea.”
13. Therefore, for the foregoing reasons, I hold that the Courts below erred in coming to the conclusion that the ingredients of Section 489 (c) of I.P.C. were established. Therefore, the conviction and sentence imposed against A-1 to A-3 by the trial Court, which was confirmed by the appellate Court are liable to be set aside.
14. In the result, the Criminal Revision Case is allowed and the conviction and sentence imposed against A-1 to A-3 by the trial Court, which was confirmed by the appellate Court are set aside.
G. KRISHNA MOHAN REDDY, J
03.08. 2012. Gsn
[1] 2001 (2) ALD (Crl.) 717 (SC)
3 issues framed by the court
Whether the ingredients of Section 489(c) IPC were established given the lack of proof regarding mens rea.
Whether the admissibility of a confession made by accused not in police custody validates the conviction under Section 489(c) IPC.
Whether the police could establish possession of counterfeit notes with dishonest intention to circulate.
Colour shows how this judgement treated each authority
Umashanker V. State of ChhattisgarFollowed¶23
2001 (2) ALD (Crl.) 717 (SC)
2 provisions across 2 enactments
Guttula Satyanarayana
State of A.P
G. KRISHNA MOHAN REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
