w w w . L a w y e r S e r v i c e s . i n



Muhammed Koya & Others v/s State of Kerala, Rep. by The Deputy Superintendent of Police, CBCID, CFS, Ernakulam, (Cr.No. 269 of 1998 of Pala Police, Station), Through The Public Prosecutor, High Court of Kerala, Ernakulam & Another


    CRL.A. Nos. 225 & 211 of 2008

    Decided On, 20 May 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

    For the Appellants: Sunil Cyriac, Anitha Ravindran, M.G. Aishwarya, V. Hari Krishnan, S. Meera, V.K. Sunil, Ajey Thomas, Advocates. For the Respondents: B. Jayasurya, Sr. PP.



Judgment Text


1. These two appeals are filed by accused Nos.1,3 and 4 in Sessions Case No.184 of 2005 on the files of the Additional Sessions Court, Kottayam. The appellant in Crl.Appeal No.211 of 2008 is the 3rd accused and appellants in Crl.Appeal No.225/2008 are accused numbers 1 and 4 in the above case. The above case is charge sheeted against the appellants and 4 others alleging offences punishable under Sections 489B and 489C r/w Section 34 of the Indian Penal Code (IPC) by the Deputy Superintendent of Police, C.B.C.I.D., C.F.S., Ernakulam in Crime No.269 of 1998 of Pala Police Station. The appellants in Crl.Appeal No.225 of 2008 are the 2nd and 6th accused in the original charge sheet. The appellant in Crl.Appeal No.211 of 2008 is the 5th accused in the original charge sheet. Since the original accused numbers 1 and 4 were absconding during the course of the committal proceedings, their case was re-filed and the case of the original accused Nos.2,3 and 5 to 7 are committed to the Sessions Court. Accused No.2,3, and 5 to 7 are arrayed as accused Nos.1 to 5 by the learned Additional Sessions Judge, Kottayam in S.C. No.184 of 2005. Pending trial, the original 3rd accused who is arrayed as 2nd accused in S.C. No.184 of 2005 died and his case was abated. Original accused Nos.2,5,6 and 7 faced trial before the lower court (hereinafter appellants are mentioned as per their rank in the original charge sheet).

2. To substantiate the case, the prosecution examined PWs.1 to 7. Exhibits P1 to P17 are the exhibits on the side of the prosecution. M.O. 1 to M.O.54 are the material objects marked in this case. After going through the evidence and documents, the trial court found that the 7th accused had not committed any offence and he was acquitted. A1 (original accused No.2), A3 (original accused No.5) and A4 (original accused No.6) were found guilty for the offences punishable under Sections 489B and 489C r/w. Section 34 of IPC. Accused Nos.2, 5 and 6 are sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1,000/- each under Section 489B IPC. In default of payment of fine, they are directed to undergo rigorous imprisonment for three months. For the offence under Section 489C, accused Nos.2,5 and 6 are sentenced to undergo rigorous imprisonment for three years.

3. The prosecution case in nutshell can be stated as follows:

Accused in furtherance of their common intention possessed counterfeit currency notes having denomination of 100/- and forged Saudi Riyals having denomination of 500/- for the purpose of trafficking the same and they possessed it for the purpose of using it as genuine, knowing the same to be counterfeit and possessed the same intending to use the same as genuine. It is alleged that accused Nos.1 to 3 were found using M.O.1 counterfeit currency notes having denomination of Rs.100/- and M.O.2 to M.O.4 series forged Saudi Riyals having denomination of 500 as genuine on 05.06.1998 in room No.109 of River Palace Hotel situated at Pala and on the same day accused Nos. 4 to 6 found in possession of counterfeit currency notes and forged Saudi Riyals for the purpose of using it as genuine in room No.210 of K.N.S. Lodge at Attingal. PW5, the Sub Inspector of Police, Pala arrested accused Nos.1 to 3 from room No.109 of River Palace Hotel situated at Pala. PW3, the Circle Inspector of Police, Kaduthuruthy arrested accused Nos.4 to 6 from room No.210 of K.N.S. Lodge, Attingal. MO1 to M.O.4 are seized from room No.109 of River Palace hotel, Pala. M.O.8 series to M.O.17 and M.O.19 were seized from room No.210 of KNS lodge, Attingal from where accused Nos.4 to 6 are arrested. Accused No.7 was arrested on 08.06.1998 by the charge witness No.15 who is the Dy.S.P., C.B.C.I.D. PW5 registered the Crime and prepared F.I.R. PW6 conducted part investigation and PW7 verified the charge and submitted final report.

4. As per Ext.P1 seizure mahazar, PW5 seized M.O.1 to M.O.6 and M.O.27 to M.O.54. Exhibit P2 seizer mahazar was prepared on 08.06.1998 by the charge witness No.15 Deputy Superintendent of Police, C.B.C.I.D., C.F.S., Ernakulam by which the room register of hotel River Palace, Pala was seized. Exhibit P3 is the mahazar prepared from K.N.S. Lodge, Attingal by PW3. M.O.7 to M.O.26 was seized from room No.210 of K.N.S. Lodge, Attingal. Exhibits P4 to P6 are the arrest memos of accused Nos.4 to 6 and Exhibits P11 to P13 are the arrest memos of accused Nos.1 to 3. Exhibit P14 is the arrest memo of the 7th accused. Exhibit P15 is the forwarding note prepared by charge witness number 15 Dy.S.P.,CFS, Ernakulam for getting expert opinion of 978 counterfeit currency notes with denomination of Rs.100/-. Exhibit P17 is the expert opinion. As per Ext.P17, the opinion of the expert is that the notes of Rs.100 denomination are counterfeit notes. The alleged forged Saudi Riyal was not forwarded for expert opinion.

5. Heard the learned counsel for the appellants and the learned Public Prosecutor.

6. The learned counsel for the original 6th accused (Ravi) submitted that, nothing is seized from his possession and even as per the prosecution case, he was only present in the room from where the counterfeit notes were seized. Hence, the learned counsel submitted that, there cannot be any conviction under Sections 489B and 489C IPC as far as the 6th accused is concerned. The learned counsel for the original 2nd accused (Muhammed Koya) submitted that the search and seizure of counterfeit notes are illegal and the evidence adduced by the prosecution is unsustainable. The learned counsel for the original 5th accused (Prasad), who is the 3rd accused in S.C. submitted that, even though the version of the prosecution is that he handed over 10 bundles of counterfeit note with denomination of 100, the same is not proved by the prosecution. Simply because the 5th accused produced 10 bundles of counterfeit note, it cannot be presumed that, he committed the offence under Sections 489B and 489C. The learned counsel also submitted that, the search conducted by the Police officials are illegal. No search memorandum is produced. In addition to that the counsel also submitted that the alleged seizure of the counterfeit notes are from room number 210 of K.N.S. Lodge, Attingal. Even though, the room register of the Hotel River Palace, Pala is seized as per Ext.P2 mahazar, the room register of K.N.S. Lodge, Attingal was not seized. He also contended that, the Manager of the said hotel turned hostile to the prosecution. These things, according to him, will improbabilize the case of the prosecution that the counterfeit notes were seized from room number 210 of K.N.S. Lodge, Attingal.

7. The learned Public Prosecutor submitted that it is a case in which sufficient evidence is there to prove the offence against accused numbers 2,5 and 6 who are the appellants in the above appeals.

8. First, I will consider the contention of the original accused No.6 (Ravi) who is the 2nd appellant in Crl.Appeal No.225 of 2008. According to the prosecution, original accused No.4 to 6 were present in room No.210 of the K.N.S. Lodge, Attingal when the Police party reached there. Exhibit P3 is the mahazar prepared by the Circle Inspector of Police, Kaduthuruthy. As per Exhibit P3 seizure mahazar, there is nothing to show that the original accused No.6 who is the 2nd appellant in Crl.Appeal No.225 of 2008 produced any counterfeit note or there was nothing to show that any counterfeit note is seized from him. The detecting officer stated in page 8 in Exhibit P3 mahazar that, when the body of the original accused No.6 (Ravi) was searched, 5 currency notes with denomination of Rs.100/-, 6 currency note with denomination of 50, 2 currency note with denomination of 10, Rs.1 two coins, Rs.2 one coin and two 25 paise coin was seen in the shirt pocket of the original 6th accused. The prosecution has no case that, seized notes are counterfeit notes. A Seiko watch was also saw by the Investigating Officer in his left hand. There was a silver bracelet also to the above mentioned Ravi who is the original 6th accused. No counterfeit note is seized from the possession of original 6th accused. It is true that the original 6th accused was present at the time of search by PW3. Simply because, the original 6th accused was present in the room from where counterfeit notes were seized, it cannot be presumed that the original 6th accused committed offence under Sections 489B and 489C IPC. Unless there is evidence to show that the accused sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, there cannot be a conviction under Section 489B IPC. Similarly, to attract the offence under Section 489C IPC, accused should be in possession of any forged 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 is necessary. Even if the entire prosecution case is accepted in toto, there is nothing to show that the original accused number 6 committed the offences under Sections 489B or 489C IPC. No ingredients of Sections 489B and 489C is made out by the prosecution against the original accused No.6 who is the 2nd appellant in Crl.Appeal No.225 of 2008. Simply because the original 6th accused, who is the 2nd appellant in Crl.Appeal No.225 of 2008 was present at the time of search by PW3 in room No.210 of K.N.S. Lodge, Attingal, it cannot be presumed that the original accused No.6/second appellant in Crl.Appeal No.225 of 2008 committed offences under Sections 489B and 489C. Therefore, I think, the original accused number 6 who is the 2nd appellant in Crl.Appeal No.225 of 2008 is entitled to the benefit of doubt.

9. Now I turn back to the original accused No.2 (Muhammed Koya) who is the 1st accused in S.C. No.184 of 2005 on the files of the Additional Sessions Judge, Kottayam and the 1st appellant in Crl.Appeal No.225 of 2008. As per the prosecution case, counterfeit note with denomination of Rs.100/- was seized from the physical possession of the original 2nd accused who is the 1st appellant in Crl.Appeal No.225 of 2008. The original accused No.2 was arrested from room number 109 of River Palace hotel, Pala by PW5, the Sub Inspector of Police. PW5, the Sub Inspector of Police prepared Exhibit P1 mahazar after arresting the original accused number 2 (Muhammed Koya). M.O.1 forged counterfeit note was seized from the original accused No.2 who is the 1st appellant in Crl.Appeal No.225 of 2008. As per Ext.P17 expert opinion, it is found that the same is a forged counterfeit note. M.O.1 forged currency note was kept inside M.O.5 suitcase in a polythene cover. As far as the original 2nd accused (Muhammed Koya) is concerned, the prosecution relying the evidence of PW1, PW2 and PW5. PW1 is the owner of the hotel from where the original 2nd accused was arrested with the counterfeit note. PW2 is the tenant of PW1. PW2 is conducting the hotel. PW5 is the Sub Inspector of Police. The evidence of PW5 is corroborated with the evidence of evidence of PW1 and PW2. It is true that the forged Saudi riyals were not seized from the possession of the original 2nd accused. Admittedly, there is no expert opinion regarding the forged Saudi riyals alleged to be seized. The Hon’ble Supreme Court in M.Mammutti v. State of Karnataka (AIR 1979 SC 1705) held that “Currency notes of such nature that mere look at them would not convince anybody that they were counterfeit”. Without any expert opinion, it is difficult to accept the case of the prosecution that M.O.2 to M.O.4 are forged Saudi riyals. But it has to be noted that M.O.1 is a forged counterfeit note of Rs.100 denomination. The original 2nd accused was found in possession of the same without any explanation. It was found in MO5 briefcase which was opened by second accused in the presence of the witnesses. The search and seizure of MO1 from the original 2nd accused is proved by the evidence of PW1, PW2 and PW5 along with Ext.P1 mahazar. Therefore, the possession of counterfeit note by the original 2nd accused, who is the first appellant in Crl.Appeal No.225 of 2008 is proved.

10. Now, we can turn to original accused No.5 who is the 3rd accused in S.C. No.184 of 2005 on the files of the Additional Sessions Judge, Kottayam who is the sole appellant in Crl.Appeal No.211 of 2008. As per the prosecution case, he was present in room No.210 of K.N.S.Lodge, Attingal on 05.06.1998 when PW3, the Circle Inspector of Police, Kaduthuruthy searched the said room. Exhibit P3 is the seizure mahazar prepared by PW3 after arresting the original accused Nos.4 to 6 from room No.210 of K.N.S. Lodge, Attingal. A perusal of Ext.P3 mahazar, it is clear that, the appellant in Crl.Appeal No.211 of 2008, who is the original 5th accused in the case produced a polythene cover to PW3, the Circle Inspector of Police, Kaduthuruthy in which there was 10 bundles of Rs.100 denomination counterfeit note. The counterfeit note was produced by the original 5th accused before the Seizing Officer which was contained in a polythene cover. Exhibit P17 expert opinion will show that, they are counterfeit notes. So the possession of the counterfeit note by the original 5th accused is proved by the evidence of PW3 and as per Ext.P3 mahazar. Moreover, the evidence of PW3 is corroborated with the evidence of PW4, the Manager of the K.N.S Lodge, Attingal to some extend. Of course, he was declared hostile but the presence of the Police in the lodge on the particular day is deposed by PW4. The counsel for the original accused No.5 contended that, the 5th accused produced counterfeit notes to PW3 is highly unbelievable. According to me, there is nothing to suspect the evidence of PW3 regarding the seizure of the counterfeit note from the original 5th accused and the preparation of the seizure mahazar. The learned counsel for the original 5th accused raised several contentions to set up a case that the entire prosecution case is vitiated because there is an illegal search. It is a well settled position that, even if there is illegal search, if there is strong oral evidence and other circumstances, the illegal search will not vitiate the prosecution case. The counsel for the original 5th accused submitted that the hotel register of room No.210 of K.N.S.Lodge, Attingal is not seized. It is true that, no records are seized from the particular hotel. That does not mean that, the entire evidence of PW3 is to be rejected on that ground. Here is a case where, as per Ext.P3 seizure mahazar, 10 bundles of counterfeit notes contained in a polythene cover was handed over by the original 5th accused to PW3, C.I. of Police, Kaduthuruthy and the same is recorded in Ext.P3 mahazar. As per Ext.P17, notes seized are counterfeit notes. In the said circumstances, the contention of the original 5th accused that the entire prosecution case is unbelievable cannot be accepted. Hence, it is proved that the original accused No.2 (Muhammed Koya) and the original accused No.5 (Prasad) were in possession of counterfeit notes. The trial court convicted both of them under Section 489B and 489C IPC.

11. The question to be decided is whether Section 489B is attracted in this case. For easy reference, it will be beneficial to extract Section 489B IPC.

Section 489(B). Using as genuine, forged or counterfeit currency-notes or bank-notes:

“Whoever sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

To attract the offence under Section 489(B), mere possession of counterfeit note is not enough. The Section says that, if the accused sells it, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note, or bank-note, knowing or having reason to believe the same to be forged or counterfeit alone is punishable as per the said Section. Therefore, there must be evidence to show that the accused sells to or buys, or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. In this case the prosecution has no case that, the accused sells counterfeit notes or buys, or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, except the case that, they were in possession of the counterfeit note. When there is no evidence to show that, the accused sells it or buys, or receives from any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, no offence under Section 489B IPC is made out. But in such cases, offence under Section 489C may attract. Section 489C says that 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, is punishable. The difference between 489B and 489C is that, as per Section 489B whoever sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, is punishable. On the other hand Section 489C says, whoever has in his possession any forged or counterfeit currency-note, or banknote, 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, is punishable. In this case, except the fact that the original accused No.2 (Muhammed Koya) and the original accused No.5 (Prasad) were in possession of counterfeit notes knowing or having reason to believe the same to be counterfeit and knowing to use the same as genuine, there is no case to the prosecution that these accused sells it or buy, or receives from any other person or otherwise traffics in or uses as genuine any forged or counterfeit currency-note or bank-note knowing or having reason to believe the same to be forged or counterfeit. Therefore, according to me, in this case original accused No.2 (Muhammed Koya) and original accused No.5 (Prasad) are liable for the offence punishable under Section 489C IPC and not under Section 489B IPC. As far as original accused No.2 is concerned, MO1 counterfeit note is seized from his suitcase. Morevoer, based on his statement, the search was conducted at Room No.210 of K.N.S. Lodge, Attingal, from where huge number of counterfeit notes are seized. As far as original 5th accused is concerned, he is producing 10 bundles of counterfeit notes to the detecting officer. To attract Section 489C, in addition to the possession of counterfeit notes, there should be evidence to show that, possession with knowledge that it is counterfeit note or having reason to believe that the same to be counterfeit note or forged and intending to use the same as genuine or that it may be used as genuine, is necessary. “Reason to believe” is defined in Section 26 of the Indian Penal Code which reads as follows: “A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise”. The prosuection should prove also the “reason to believe” the things mentioned in Section 489C IPC to convict a person. But this proof need not be necessarily by direct evidence. The various circumstances leading to the seizure of forged notes and the manner in which the accused came into possession of these notes are important circumstances. In this case original accused No.2 gave statement which leads to the recovery of huge quantity of counterfeit notes from Attingal Lodge. From his suitcase MO1 is seized. Moreover, original accused No.5 handed over 10 bundles of counterfeit notes to PW5 and there is no explanation to him for possessing the same. Hence, these are strong circumstance against A2 and A6 to show that they are in possession of the counterfeit notes with knowledge that the same is counterfeit notes intending to use the same as genuine or it may be used as genuine. Hence, an offence under Section 489C is made out against A2 and A6

12. Therefore, the conviction and sentence imposed on the sole appellant in Crl.Appeal No.211 of 2008 and the 1st appellant in Crl.Appeal No.225 of 2008 under Section 489B IPC is unsustainable and hence set aside.

13. Hence, in the result, the conviction and sentence imposed on the 2nd appellant in Crl.Appeal No.225 of 2008 (Original

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accused No.6–Ravi) as per the judgment dated 24.01.2008 in S.C. No.184 of 2005 on the files of the Additional Sessions Judge, Kottayam is set aside. The conviction and sentence imposed on the 1st appellant in Crl.Appeal No.225 of 2008 (Original accused No.2 –Muhammed Koya) and the conviction and sentence imposed on the appellant in Crl.Appeal No.211 of 2008 (Original accused No.5- Prasad) under Section 489B IPC as per the judgment of the lower court referred to above, is set aside. The conviction and sentence imposed on the 1st appellant in Crl.Appeal No.225 of 2008 and the sole appellant in Crl.Appeal No.211 of 2008 under Section 489C IPC as per the judgment of the lower court referred to above, is confirmed. 14. Now regarding the sentence to be imposed on the 1st appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 is to be decided. The trial court imposed rigorous imprisonment for 3 years under Section 489C to them. In this case, the offence under Section 489 C is a lesser offence when considered to the offence under Section 489B IPC. Section 489C is a bailable offence. Section 489C IPC deals the possession of counterfeit note. No previous conviction is reported against these appellants. Moreover, the offence alleged to be committed in this case was on 05.06.1998. Now 22 years elapsed. At this distance of time, the appellants need not be sent to jail again. Moreover, the substantive sentence of imprisonment is not mandatory as per Section 489C IPC. In the last paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koaya is entitled to set off for the period from 5.6.1998 to 14.7.1998 and the accused Prasad is entitled to set off from 5.6.1998 to 12.7.1998. Since they already underwent imprisonment for some period, I think, that is enough. In addition to that a fine also can be imposed. Hence, the 1st appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 of 2008 are directed to undergo Rigorous Imprisonment for one month each and to pay a fine of Rs.50,000/- each under Section 489C IPC. In default of payment of fine, appellants will undergo simple imprisonment for a period of three months. Appellants are entitled set off for the period they already undergone. With these observations, these Crl.Appeals are allowed in part.
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