IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 2500 of 2006()
1. RAVEENDRAN,
... Petitioner
Vs
1. THE STATE OF KERALA.
... Respondent
For Petitioner :ADV.MANJU ANTONEY(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :28/05/2007
O R D E R
V.RAMKUMAR, J.
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Crl.A. No. 2500/2006
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Dated this 28th day of May, 2007
JUDGMENT
In this appeal preferred from the Central Prison,
Viyyoor, the appellant who was the accused in the Sessions
Case No.422/2004 on the file of the Additional Sessions Court,
North Paravur for offences punishable under Sections 489B
and 489C read with Section 34 IPC, challenges the conviction
entered and the sentence passed against him by the said
Court for the aforesaid offences.
2. The case of the prosecution can be summarized as
follows:-
3. On 10.7.1999 at about 8.15 p.m., inside the Alankar
bar near the Aluva railway station, accused Nos. 1 and 2
(Abdul Salam and Ravindran) were each found in possession
of a counterfeit note of Rupees five hundred denomination
and knowing the same to be forged, the accused persons gave
the said counterfeit notes at the bar for purchasing foreign
liquor. The accused have thereby committed offences
punishable under Sections 489B and 489C read with Section
34 IPC.
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4. Out of the two accused persons, the second
accused, Ravindran, (the appellant herein) alone stood trial
since the first accused was allegedly absconding.
5. On the appellant pleading not guilty to the charge
framed against him by the Court below for the
aforementioned offence, the prosecution was permitted to
adduce evidence in support of its case. The prosecution
altogether examined eight witnesses as PWs1 to 8 and got
marked five documents as Exts. P1 to P5 and two material
objects as Mos 1 and 2.
6. After the close of the prosecution evidence, the
appellant was questioned under Sec. 313 (1) (b) Cr.P.C. with
regard to the incriminating circumstances appearing against
him in the evidence for the prosecution. He denied those
circumstances and maintained his innocence.
7. Since the Court below did not consider this a fit
case for recording an order of acquittal under Sec. 232
Cr.P.C. the appellant was, therefore, called upon to enter on
his defence and to adduce any evidence which he might have
in support there of. He did not adduce any defence evidence.
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8. The learned Addl. Sessions Judge, after trial, as per
judgment dated 7-6-2006 found the appellant guilty of the
offences punishable under Secs. 489B and 489C IPC and
sentenced him to rigorous imprisonment for 5 years for the
conviction under Section 489B IPC and to rigorous
imprisonment for three years for the conviction under Section
489C IPC. The sentences were directed to run concurrently.
It is the said judgment which is assailed in this appeal.
9. I heard Advocate Sri. Manju Antony the learned
counsel who defended the appellant on State Brief and
Advocate Sri. K. S. Sivakumar, the learned Public Prosecutor
who defended the State.
10. The only point which arises for consideration in
this appeal is as to whether the conviction entered and the
sentence passed against the appellant are sustainable or not ?
THE POINT:-
11. P.W.1 was the barman at Alankar bar, Aluva, where
the occurrence allegedly took place. P.W.2 is the Assistant
Manager of the said bar. He is an attestor to Ext.P1 mahazar
prepared by the Sub Inspector while seizing the counterfeit
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notes (Mos 1 and 2) PW3 was the waitor in Alankar bar. He
turned hostile to the prosecution. P.W.4 was the room boy in
the tourist home attached to Alankar bar. He is also the
signatory to Ext.P1 mahazar. PW5 was the police constable
attached to Aluva police station. He came in the company of
PW6, the Sub Inspector. PW6 was the Sub Inspector of
police, Aluva, who has arrested the accused persons and
seized Mos 1 and 2 under Ext.P1 mahazar. PW7 was the
detective Inspector, CBCID, who inter alia deposed that both
the accused persons had told him that it was one Baby who
had supplied the counterfeit notes to them. PW8 is the officer
who conducted further investigation of the case and laid the
charge.
12. After hearing both sides and after perusing the oral
and documentary evidence in the case, I am not inclined to
concur with the conclusions reached by the Court below in
support of the conviction entered and the sentence passed
against the appellant. As noted earlier, PW1 is the barman of
Alankar bar at Aluva. He deposed before Court that one
person came and gave a five hundred rupee note for
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purchasing liquor and PW1 entertained some suspicion
regarding genuineness of the note handed over by the said
person. His evidence further shows that thereafter the said
person went out and later came in the company of another
person and that the other person handed over another five
hundred rupee note which also aroused some suspicion in
PW1. Even though the case of the prosecution is that the
appellant, the second accused, was the person who
subsequently entered the tavern in the company of the first
accused and handed over the counterfeit note of rupees five
hundred denomination, PW1 who is the star witness for the
prosecution did not identify the appellant standing in the dock
to be the person who came subsequently in the company of
the person who had initially handed over the first counterfeit
five hundred rupee note. His testimony to the effect that
one of the two persons had a burn scar on his face does not
in any way advance the case of the prosecution since the
appellant was not identified as the person who had the burn
scar on the face.
13. The evidence of PW2, the Assistant Manager of
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Alankar bar, is also of no avail to the prosecution. First of all,
he reached the bar only after the two persons had handed
over the counterfeit notes to PW1. In other words, he does
not have any first hand knowledge of any of the two persons
handing over the currency notes to PW1 who was the barman.
His information is only through the narration made to him by
PW1. Even this witness had not identified the appellant
standing in the dock as the person who had subsequently
entered the bar.
14. PW3, the waitor of Alankar bar turned unfriendly to
the prosecution. Except saying that two persons were
restrained by the police for bringing fake notes, this witness
also did not identify the appellant standing in the dock as one
of the two persons who had allegedly brought the counterfeit
notes.
15. The position with regard to PW4, the room boy, is
also no better. First of all, this witness admitted that he was
the room boy in the tourist home which is distinct and
different from the bar. He would say that he signed Ext.P1
mahazar from the tourist home. But the case of PW6, the Sub
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Inspector, is that the mahazar was signed from the bar itself.
PW4 also has not identified the appellant standing in the dock
as the person who was one among the two persons who were
detained in the bar for having possessed counterfeit notes.
16. PW5, the police constable who accompanied the
Sub Inspector, no doubt, identified the appellant standing in
the dock as one of the two persons who were arrested on
10.7.1999. He also stated that the appellant has burn scars
on his face. But his knowledge about the appellant handing
over the counterfeit notes to PW1 is only hearsay as narrated
to him by PW1 himself who has not identified the appellant
standing in the dock as one of those two persons. PW5
confessed that when the police party reached the bar, the
counterfeit notes were in the hands of PW1 and it was from
PW1 that the police seized the counterfeit notes.
17. The testimony of PW6, the Sub Inspector, is also to
the same effect. What he has deposed is that PW1, the
barman, had detained two persons for allegedly keeping
possession of counterfeit notes. But Mos 1 and 2 counterfeit
notes were admittedly seized by PW6 from PW1 under Ext.P1
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mahazar. When PW6 has no direct knowledge regarding the
handing over of the counterfeit note by the appellant to PW1,
his testimony to the effect that the appellant was one among
the two persons detained in the bar does not in any way help
the prosecution.
18. Even if it were to be conceded that Mos 1 and 2 are
counterfeit notes, a conviction under Section 489C IPC can
legitimately be recorded only if it is proved that the accused
was found in possession of counterfeit currency notes
knowing or having reason to believe the same to be
counterfeit and intending to use the same as genuine or that it
may be used as genuine. Likewise, a conviction under
Section 489B is possible only if it is proved that the accused
sold to PW1 the counterfeit currency notes knowing or having
reason to believe the same to be counterfeit. When none of
the prosecution witnesses has deposed that it was the
appellant standing in the dock who handed over one of the
two counterfeit notes to PW1, the essential ingredient of both
the offences does not stand proved. The conviction recorded
and the sentence passed by the Court below overlooking the
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above vital aspect of the matter cannot therefore be
supported.
19. The appellant is accordingly found not guilty of the
offences punishable under Secs. 489B and 489C read with
Section 34 IPC and is acquitted thereunder. He is set at
liberty. He shall be released from prison forthwith unless his
continued detention is needed in connection with any other
case.
In the result, this Criminal Appeal is allowed as
above.
V.RAMKUMAR
JUDGE
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