Both these appeals are directed against the judgment of conviction passed by the court of the Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram in S.C. No.130/1996. The appellant in the former appeal was the second accused and the appellant in the latter appeal was the first accused, therein. They were tried for the offence punishable under section 489 C read with section 34 of the Indian Penal Code (for short 'the IPC') and convicted under section 489 C, IPC without the aid of section 34, IPC and sentenced to undergo rigorous imprisonment for five years each and to pay a fine of `10,000/- each. In default of payment of fine they were directed to undergo simple imprisonment for a period of one year, each. 2. The case of the prosecution is that on 21.4.1991 while PW1 was conducting patrol duty, at about 6.15 pm he found the first accused at Thirumala with 35 numbers of 10 rupee forged currency notes (MO3 series). He was arrested and questioned. Thereafter, the houses of the first and second accused were searched. 151 forged notes of the denomination 10 rupee were found concealed in the house of accused No.1 and 17 such counterfeit currency notes were found concealed in the house of accused No.2. They were seized respectively under Exts.P4 and P3 search lists. After completing the investigation final report was filed before the Court of the Judicial First Class Magistrate-II, Thiruvananthapuram and it was committed to the Court of Session, Thiruvananthapuram. After assigning the number as S.C.No.130/1996 it was made over to the Court of Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram for trial and disposal. The appellant/accused appeared before the court and after hearing both sides charge under section 489 C read with section 34, IPC was framed, read over and explained to the accused. They pleaded not guilty and claimed to be tried.
3. To bring home the charge against the appellants/accused the prosecution had examined PWs 1 to 5 and got marked Exts.P1 to P9. MO I to MO III series were also identified. Upon closing the prosecution evidence the appellants were examined under section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances put to them. The appellant in the former appeal viz., the second accused additionally stated that he was an agent of newspapers in Poojappura area and when reports appeared in the newspapers about the misdeeds of the officials in the Poojappura Police Station he was summoned to the station on several times and was warned. According to him, he was trapped to wreck vengeance on the mistaken belief that he was the concerned reporter of such news. The appellant in the latter appeal viz., the first accused additionally stated that he was working in an advertising company in Thycaud. A dispute arose between himself and his employer and certain political leaders intervened in the matter and at that point of time PW1 an acquaintee of his employer warned him that he would be booked in a non-bailable offence and that he is absolutely innocent. Finding that the appellants herein were not entitled to be acquitted under section 232, Cr.P.C they were asked to enter on their defence. However, besides getting marked a portion of 161 statement of PW1 as Ext.D1 during the examination of PW1 they did not adduce any evidence. On a careful analysis of the evidence, both oral and documentary, the trial court found them guilty of the offence under section 489 C, IPC and accordingly, without the aid of section 34 I.P.C., convicted and sentenced them thereunder as aforesaid.
4. I have heard the learned counsel for the appellants as also the learned Public Prosecutor.
5. The learned counsel for the appellants in Crl.A.No.1310/2003 contended, inter alia, that the search conducted under section 94 of the Code of Criminal Procedure (for short' the Cr.P.C.), allegedly culminated in seizure of MO I series of counterfeit notes under Ext.P3 search list, is illegal as it was conducted by an incompetent officer and that too, without following the procedures contemplated therefor. According to the appellant PW1 was not authorised to conduct such search. The learned counsel for the appellant in Crl.A.No.1292/2003 contended that evidence adduced in this case by the prosecution was too insufficient to attract the offence under section 489C, IPC and taking into account the discrepancies in the evidence of the prosecution witnesses the trial court ought to have held the charge against the appellant as not proved. It is also contended that the non-examination of the investigating officer who laid the final charge is fatal to the prosecution especially taking into account the fact that the documents, Exts.P6 and P9 were got marked subject to proof. In otherwords, according to the learned counsel when such documents are marked subject to proof, without further proof, the said documents ought not to have been relied on for finding them guilty and consequently, for their conviction. By the non- examination of the investigating officer rather withholding him, the appellant was deprived of the opportunity to contradict the evidence and therefore, Exts.P6 and P9 ought to have been considered against them.
6. As noticed hereinbefore, the prosecution got examined PW1 to PW5. PW1 was the then Sub Inspector of Police, City Crime Squad, Thiruvanathapuram and he would depose that on 21.4.1991 while doing patrol duty at about 6.15 p.m., he saw the first accused near the bus stop at Thirumala with 35 numbers of counterfeit currency notes of 10 rupee denomination and thereupon the first accused attempted to conceal the said notes. He further deposed that the first accused was then arrested and the notes found in his possession were seized after describing them in Ext.P1 mahazar. Ext.P7 is the report prepared therefor. Thereafter, the first accused was brought to Poojappura Police Station and Crime No.79/91 was registered. After questioning the first accused, based on his statement, search was conducted in his house as also in the house of the second accused. Pursuant to such search MO I series viz., 17 counterfeit currency notes of 10 rupee denomination were seized under Ext.P3 search list from the house of the second accused and 151 counterfeit currency notes of 10 rupee denomination were seized from the house of first accused under Ext.P4 search list. He filed Ext.P5 report to the court informing about the investigation being conducted against the accused. PW1 further deposed that the investigation was subsequently transferred to CBCID (CFS) as per the direction of the Deputy Commissioner of Police. As per the prosecution PW2 is the attesting witness to Ext.P1 mahazar and Ext.P3 search list. He turned hostile to the prosecution. He would depose that he came to the police station on coming to know of the arrest of the first accused and believing that it was in connection with a scuffle and further that at the police station himself and the brother of the first accused were to sign on some papers for the purpose of enlarging the first accused on bail. PW2 has further deposed that he was not at all informed of the fact that the first accused was actually arrested in connection with the commission of an offence relating seizure of forged currency notes. Admittedly, the signature of PW2 is not there in Ext.P3 search list though he has been shown there as a witness. PW3 was the Police Constable who accompanied PW1 at the time of detection of the offence. He would depose that he accompanied PW1 when search was conducted in the houses of first and second accused and he identified his signature in Exts.P1, P3 and P4. He corroborated the version of PW1. PW4 was the Head Constable then attached to the Poojappura Police Station and he was in charge of the Poojappura Police Station at about 8 p.m on 21.4.1991. He would depose that when the first accused was brought to the police station he registered Crime No.79/1991 of Poojappura Police Station based on Ext.P7 report and Ext.P1 mahazar. Ext.P8 is the FIR. After registering the crime, evidently, the investigation was also conducted initially, by PW1 who detected the offence. According to PW1 he was authorized to conduct the investigation by the Deputy Commissioner of Police and subsequently, the investigation was handed over to CBCID (CFS). PW5 is the occurrence witness to the detection of the offence as also the arrest of the first accused. He turned hostile to the prosecution and deposed that he did not know the accused persons. CW9 was the investigating officer who completed the investigation and laid the final report. However, he was not examined by the prosecution and a medical certificate indicating that he was not then in a position to give evidence due to cognitive impairment was produced. In the case of Cws 7 and 8 their presence could not be procured despite the issuance of repeated process and thereafter, their examination was dispensed with. In the context of the contentions it is relevant to refer to the points framed for consideration by the trial court. They read thus:-
1. Whether the accused Nos. 1 an 2 committed the offence under section 489 C of the I.P.C?
2. Whether the offence alleged in this case was committed by accused Nos. 1 and 2 in furtherance of their common intention?
3. If found guilty, what should be the sentence or order?
7. Obviously, the complicity of the appellants was sought to be established by the prosecution with the aid of section 34, IPC. However, the finding of the trial court under point No.2 would reveal that after considering the evidence on record the court arrived at the conclusion that the prosecution has failed to establish the existence of common intention among the accused. While answering point No.2 against the prosecution as aforesaid the trial court observed that individual commission of the offence under section 489 C, IPC by the appellants/accused is perceivable from the evidence on record. In fact, a scrutiny of the judgment would not reveal any pointed consideration on the said question. Therefore, essentially the question is whether the prosecution has succeeded in establishing the fact that the first and second accused have committed the offence under section 489 C, IPC individually and independently. The learned Sessions Judge, answered point No.1 viz., whether the accused Nos. 1 and 2 had committed the offence under section 489 C, IPC in favour of the prosecution holding that they were found in possession of MO I to MO III series of forged notes. MO I series of counterfeit notes were allegedly found from the house of the second accused and MOII series of counterfeit notes were allegedly found from the house of first accused, and MOIII series were allegedly found from his possession. Admittedly, in this case after the seizure of MO1 to MOIII series those notes were not sent for examination by an expert. The trial court relied on a decision of the Hon'ble Apex Court in Mammutti v. State of Karnataka reported in AIR 1979 SC 1705 to hold that MO1 series to MO III series of notes were counterfeit currency notes. In the decision in Mammutti's case (supra) the Hon'ble Apex Court observed that if the note was of such a nature or description that a mere look at it would convince anybody that it was counterfeit such a presumption could reasonably be drawn. The trial court relied on the evidence of PW 1 and PW 3 to the effect that the currency notes, MO1 series were seized from the house of the second accused, MO II series were seized from the house of the first accused and MO III series of notes were found from the possession of the first accused at the time of his arrest from Thirumala bus stop. After perusing the notes the court arrived at the conclusion that the notes are forged notes from their very look and feel. The evidence of PW2 was also considered by the trial court. The trial court found that though his signature was not seen in Ext.P3 despite mentioning his name as a witness therein his version regarding his signature in Ext.P1 is unacceptable and further observed that his attempt is only to rescue accused No.1. The trial court considered the question regarding the ownership of the houses of the first and second accused which led to the recovery of MO I and MO II series respectively under Exts.P3 and P4 search lists. The trial court found that discovery of MO I and MO II under Ext.P3 and P4 search lists respectively coupled with the evidence of PWs 1 and 2 and the non-mentioning of the T.C numbers of their respective residences in the Vakalath by the appellants/accused were convincing materials as regards the search conducted in the houses of the appellants. The trial court in such circumstances held that the burden was on the accused to disprove that the recovery of MO I and MO II series was not made from their respective houses. After perusing the Vakalath filed on behalf of the appellant herein the trial court found that they have consciously avoided mentioning of the T.C. numbers of their respective houses in the Vakalath and in the light of the failure on the part of the appellants to prove that the houses referred in Exts.P3 and P4 do not belong to them and in the light of the oral testimonies of PWs 1 and 2 it would confirm the truthfulness of Exts.P3 and P4. While considering the question of culpability under section 489 C, IPC it was held that mens rea could not be proved through any direct evidence and in a case of this nature it has to be gathered from the attendant circumstances, mainly relying on the decision in Ashis Batham v. State of Kerala reported in 2002(3) KLT SN 103 (SC). It is ultimately found that there is adequate, unimpeachable, legally acceptable proof against the accused persons for arriving at the conclusion of possession of forged notes by them with the knowledge and having reason to believe that they are forged. Based on said evidence and discussion the appellants were found guilty under section 489 C, IPC.
8. The question is whether the above findings and conclusions of the trial court can be said to be perverse in the light of the evidence on record. The learned counsel appearing for the appellants contended that obviously, in this case the very prosecution case is that the first accused procured counterfeit currency notes from the second accused. At the same time, it is evident that the trial court has found against the prosecution the question regarding the existence of common intention among the appellants herein. In such circumstances the question is what is the impact of the said finding considering the very case of the prosecution? In the case of the first accused the case of the prosecution, as also the oral testimony of PW 1 and PW3 are to the effect that while they were conducting patrol duty on 21.4.1991 at about 6.15 p.m. they found the first accused in possession of 35 numbers of forged currency notes of the denomination of 10 rupee at Thirumala bus stop. It is also the case of the prosecution that on questioning the first accused passed information regarding the concealment of such notes in his house as also in the house of the second accused and then they were seized respectively under Exts.P3 and P4. It is the precise case of the prosecution that search was conducted in the house of the second accused based on the statement made by the first accused. When once the trial court found that the prosecution evidence is insufficient to establish their common intention how can the case of the prosecution that MO I series of notes were seized from the house of the second accused based on the alleged information given by the first accused be believed? If that cannot be believed the question is under what circumstances the house of the second accused was searched and what sanctity could then be attached to the seizure of MO I series under Ext.P3 search list especially due to the non-examination of independent witness as also of the Investigating Officer? As noticed hereinbefore, there is no case for the prosecution that PW1 and the others conducted search in the house of the second accused on that day pursuant to the receipt of information from any other source. So also, it is pertinent to note that no evidence whatsoever was tendered by the prosecution to show that the search was conducted in the presence of the second accused. In Ext.P3 search list it is shown that the inspection was conducted under section 94 Cr.P.C. In view of the provisions under section 94 Cr.P.C. to conduct a search under that section a police officer above the rank of a constable must have been authorised by a warrant by a District Magistrate, Sub Divisional Magistrate or Magistrate of the First Class after satisfying the requirements thereunder. At the same time, it is to be noted that the evidence of PW1 would reveal that actually search was not conducted under section 94, Cr.P.C. According to him, while he was doing patrol duty on 21.4.1991 at about 6.15 p.m. he found the first accused with 35 numbers of 10 rupee counterfeit notes near the bus stop at Thirumala and after his arrest and questioning, based on the information furnished, search was conducted in the houses of the first and second accused after sending a search memorandum to the court. Non- examination of the independent witness to the search and seizure of MO1 series makes it unreliable in the said circumstances. It is also pertinent to note at this juncture that though PW1 deposed to the effect that search memorandum was sent to the court before conducting search of the houses of the first and second accused the search memorandum was not legally brought on record. If such a memorandum was sent why the search that led to MO1 series under Ext.P3 was attempted to be shown as a search under section 94, Cr.P.C ? The fact that the learned Sessions Judge held the question of existence of common intention between the accused persons as not proved and the consequential finding that they could not be convicted with the aid of section 34, IPC would undoubtedly suggest that the court had declined to accept the case of the prosecution that it was the statement of the first accused that led to the search and seizure of MO I series from the house of the second respondent. When that part of the prosecution is disbelieved by the court what was the conclusive material available for holding culpability against the second accused? In the aforesaid circumstances, certain other aspects also assume relevance.
Evidently, PW1 and PW3 deposed that the first accused/ the appellant in the latter appeal, was taken to his own house for effecting discovery of MO2 series of notes and also to the house of accused No.2/the appellant in the former appeal for discovery of MO1 series of notes. In the light of their evidence regarding conduct of search the decision of the Hon'ble Apex Court in Musheer Khan v. State of Madhya Pradesh reported in AIR 2000 SC 762 assumes relevance. The distinction between the search proceedings and discovery has been considered therein. The entire gamut of proceedings under chapter VII, Cr.P.C is based on compulsion whereas the very basis of facts deposed by an accused in custody must be voluntary and the discovery under section 27, Evidence Act takes place only pursuant thereto. In the light of the findings of the trial court regarding the common intention and applicability of section 34, IPC as aforesaid, the materials allegedly recovered cannot be said to be materials discovered under section 27 of the Evidence Act especially in view of the indisputable position that the second accused was never been in custody before the alleged discovery of MO1 series of notes from his house. Discovery of MO1 series of notes was claimed to have been made from the house of the second respondent based on the information of the first accused. In the light of the decision of this Court in Kunnummal Mohammed and Another v. State of Kerala reported in AIR 1963 Ker. 54 discovery made on the information of one accused cannot be used against another. In the said circumstances, and also in view of the indisputable fact that prior to the seizure of MO1 series of notes the second accused was never been in police custody on being made as accused in any offence also assume relevance. A perusal of section 27, Evidence Act would reveal that certain conditions have to be satisfied to bring operation of section 27 of the Evidence Act and to make an information admissible thereunder. Firstly, the discovery of a fact, albeit a relevant fact must be in consequence of the information received from a person accused of an offence. Secondly, the discovery of such fact must be deposed to and thirdly, at the time of the receipt of the information the accused must be in police custody. If all such conditions mentioned in section 27, Evidence Act are fulfilled 'so much of the information' as relates distinctly to the fact relevant to the case thereby discovered is admissible. As regards the first accused also the prosecution has failed to establish that MO2 series of notes were discovered based on any disclosure statement admissible under section 27 of the Evidence Act. In the circumstances, now, I will consider, in view of the evidence on record and in the light of the provisions under section 489 C, IPC whether their conviction thereunder without the aid of section 34, IPC could be maintained? In order to attract the offence under section 489 C, IPC the mere possession of forged currency notes is not sufficient. Section 489 C, IPC reads thus:-
“489C. Possession of forged or counterfeit currency-notes or bank-notes.- 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, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.”
Thus, a bare perusal of section 489 C, IPC would reveal the ingredients to attract the said offence as hereunder:-
(1) the note in question must be a currency note or a bank note
(2) such note was forged or counterfeit
(3) the accused was in possession of the currency notes of bank notes
(4) the accused intended to use the same as genuine or that it might be used as genuine and, the accused knew or had reason to believe that the notes to be forged or counterfeit.
Thus it is obvious that the mere possession of forged or counterfeit notes would not bring the action within the purview of section 489 C, IPC and apart from possession of such notes it should further be established that at the time of possession the accused knew the notes to be forged or counterfeited or had the reason to believe that the same to be forged or counterfeited and he intended to use the same as genuine or that they might be used as genuine. The position whether a mere possession of counterfeit notes is an offence under the Penal Code was considered by this Court in the decision in Karunakaran Nadar v State reported in 2000 Cri.LJ 3748 (Ker). Going by the said decision, as also in view of the very provision of law referred above, if there was nothing to show that the accused had intention to use the same as genuine or that it might be used as genuine the offence would not be attracted. In short, for a successful prosecution for the offence under this section the most important ingredient that the accused intended to use it as genuine or that it might be used as genuine besides the possession of such notes has to be proved. The onus lies on the prosecution to prove circumstances which lead clearly, indubitably as also irresistibly to the inference that the accused had the intention to foist the notes on the public. Certainly, such intention can be proved by any collateral circumstances. No such evidence was adduced against the second accused. In his absence, allegedly 17 numbers of counterfeit notes were seized under Ext.P3 search list after describing them thereunder from a house where the second accused was also residing. It is also relevant to note what is stated in the search list . It reads thus:-
“ ] ] ÿ 10 r ] ] ] ] U ] ] r r] N ] U N ] ]U ] U ] ] ] U r ] U ] r ] V U .
] ] ] ÿ r ] (10 17 U) ] V U ] .”
Thus, the seizure of 17 numbers of notes of 10 rupee denomination, of the aforesaid nature, allegedly from the house of the second accused, in his absence would not be sufficient to attract the said offence against the second accused. Obviously, no evidence or circumstances whatsoever to establish the intention to use the notes in question viz., MO1 series was proved by the prosecution. When it comes to the question whether 'the notes in question might be used as genuine' certainly it cannot depend solely on the knowledge of the accused regarding the fact that they are counterfeit but, also depends upon the question whether it would appear to others as genuine. Going by the very description in Ext.P1 mahazar and Exts. P3 and P4 search lists it is evident that MO 1 to MO III series of notes could not have been, under the normal circumstances, be used as genuine and therefore it could not be said that they might be used as genuine. If owing to the defects/peculiarities as mentioned earlier the notes in question are easily identifiable as not genuine notes, merely by looking at them, how could it be said that they might be used as genuine notes. The description of the notes itself would reveal that there was absolutely no reason to believe that they might be used as genuine. Because of the underweight of the papers used, the spreading of the ink as also the difference in the size of the digits all, even according to the prosecution, made them appear as counterfeit notes on the mere look at them. If the notes in question, on a mere look at them, could be identified as not genuine, where is the chance that they might be used as genuine. Add to it, even if the evidence of the official witnesses are sufficient to show that the first respondent was in possession of MO3 series of noted the prosecution had failed to establish that the said notes were kept in the possession by the accused with the intention to foist them as genuine notes in public. When that be the nature of the notes seized by PW1 in the absence of a specific allegation and proof that those notes found in the possession were intended to be used as genuine or might be used as genuine or that might be used as genuine notes I am of the view that that commission of offence under section 489 C could not be found as proved in the case of the first accused, as well. At that point of time the first accused was aged only 19 years. Add to it, it is pertinent to note that his parents and siblings were also living in the same house. That apart, going by the very case of the prosecution the first accused obtained such notes from the second accused. Evidently, the learned Sessions Judge found that the prosecution had failed to show that the first accused procured those notes from the second accused. In the light of the aforesaid circumstances the finding that the first accused is guilty under section 489 C, IPC, also cannot be sustained. These aspects which are very relevant were not taken into account properly by the trial court. Taking into account all the said circumstances, I am of the considered view that it would unsafe to convict the accused based on the oral testimonies of PW1 and PW3. The long and short of the discussion is that the appeals are liable to be allowed, and accordingly they are allowed. The judgment of the court of the Additional Sessions Judge Fast Track (Adhoc) No.II, Thiruvananthapuram in S.C. No.130/1996 is set aside. The bail bonds of the appellants stand cancelled.
Sd/- C.T.RAVIKUMAR,JUDGE.
dlk // true copy // Sd/-
P.S. To Judge