The appellant in Crl.A.No.147 of 2009 is A1 and the appellant in Crl.A.No.149 of 2009 is A2 in S.C.No.513 of 2003 on the file of the learned Additional Sessions Judge, Fast Track Court No.I, Chennai. There were totally 7 accused in the above case. During committal, A7 absconded and as such case as against him came to be split up. The other accused were committed to the court of sessions for trial. There were four charges framed as against the accused. The first charge is against A1 for offence under Section 489-B, 489-C, and 471 of IPC and A2 for offence under Section 489-B and 489-C; the second charge is against A3 for offence under Section 489-B r/w 109 of IPC; third charge is against A4 for offence under Section 489-B of IPC; and the fourth charge is against A5 & A6 for offence under Section 467, 471 r/w 467 of IPC. The accused denied the charges and hence, they were put to trial. Pending trial, A4 - Shahul Hameed died and charges against him stood abated. The learned Additional Sessions Judge, after full-trial, found A1 and A2 alone guilty of offence punishable under Section 489-C of IPC and convicted and sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for six months thereunder and, however, found them not guilty of any other offences. The learned Additional Sessions Judge, found A3 to A6 not guilty of any of the charges and acquitted them from all the charges.
Challenging the conviction and sentence imposed on A1 and A2 they are before this court with these criminal appeals.
2. The case of the prosecution in brief is as follows:- On 20.07.1999, pursuant to a reliable source of information that a group of person were indulged in circulating counterfeit currencies in and around Vallalar Nagar area, P.W.6, the then Inspector of Police, Counterfeit Currency Wing, CB CID, rushed to the place with his team. When he himself and his team were keeping vigil, at about 11.30 a.m. he spotted A1 and A1, whose identity came to be known later on, roaming around Vallalar Nagar Bus Stand in a suspicious manner. Immediately, when P.W.6 intercepted them and made a body search one after the other, he found that A1 was in possession of 25 Indian currencies with the face value of rupees five hundreds and A2 was found in possession of 100 Indian currencies with the face value of rupees five hundreds [later they were proved to be counterfeit currencies]. P.W.6 therefore, detained them with the contraband currencies. He officially arrested A1 and A2 and recovered the counterfeit currencies under a cover of two different seizure mahazars Ex.P.1 and P.2 respectively in the presence of P.W.1 and P.W.2. Then, during interrogation by P.W.6, A1 and A2 voluntarily gave a confession statement one after the other. Pursuant to the confession of A1, P.W.6 took A1 to his house where at the instance of A1, P.W.6 recovered 75 Nos. of Five Hundred Rupee currencies; 18 Nos. of Hundred Rupee currencies;
60 Nos. of Saudi riyal; 40 Nos. of US Dollars [which were later proved to be counterfeit currencies] and also Two Nos. of unfiled Demand Drafts of State Bank of India, Mumbai Branch under cover of a mahazar in the presence of the same witnesses. Then, on returning to the police station, he registered a case in Crime No.6 of 1999 for offence under Section 120B r/w 489-B, 489-C and 467 of IPC. Ex.P.15 is the FIR. Thereafter, he forwarded A1 and A2 to the Court for judicial remand. Then, on the order of the learned Judicial Magistrate, he took police custody of A1 from 29.07.1999 to 02.08.1999 and on 02.08.1999 P.W.6 forwarded A1 back to the court for judicial remand. He was in search of A1. Then, he forwarded the currencies to the court with a request for examination by experts. In the mean time, on the order of the Higher Police Officers, the investigation was transferred to P.W.7.
3. P.W.7 taking up the case for further investigation, was in search of the absconding accused. During investigation, he came to know that A5 & A6 were in central prison in connection with another CB CID case. He obtained reports from the Forensic Science Lab, examined the Experts and few more witnesses and on completing investigation, P.W.7 laid charge sheet against the accused.
4. Based on the above materials, the trial court framed as many as four charges against the accused. The accused denied the charges and wanted trial. Accordingly, they were put on trial. In order to prove its case, the prosecuting agency has examined as many as 7 witnesses and marked 19 documents and 12 material objects.
5. Out of the above said witnesses, P.W.1 and P.W.2, who were stated to be the witnesses to the recovery of 25 Nos. of counterfeit currency with the face value of 500 rupees from the possession of A1 and 100 Nos. of counterfeit currency with the face value of 500 rupees from the possession of A2, turned hostile and they did not support the case of the prosecution in any manner. P.W.3 , the then Assistant of the Chief Metropolitan Magistrate, has spoken about the fact that, on the orders of the learned Chief Metropolitan Magistrate, she forwarded the currencies for examination to Indian Security Press, Press, Nashik in Maharashtra State and the foreign currencies to CBI Interpol Wing, New Delhi separately. P.W.4, the then Supervisor, Currency Note Press and in charge of Counterfeit Currencies Detection Laboratory, Nashik, has spoken about the examination conducted on the currencies in question and the report. According to him, the currencies received for examination were all counterfeit. Ex.P.11 are the Experts opinion on counterfeit currencies. P.W.5, the then Assistant, XVII Metropolitan Magistrate Court, Saidapet, Chennai, has spoken about the report received from the expert from Currency Notes press. P.W.6, the investigating officer, has spoken that on receipt of a secret information that counterfeit currencies are circulated in the area, he formed a team and was in vigil in the area. He has further spoken about the interception and detention of A1 and A2 when they were found moving in a suspicious manner. P.W.6 has further spoken about the recovery of currencies from the possession of A1 and A2 individually in the presence of P.W.1 and P.W.2; recovery of some more Indian counterfeit currencies, foreign currencies and fake bank demand drafts from the house of A1 pursuant to his confession; arrest of the other accused and the filing of charge sheet against the accused.
6. When the above incriminating materials were put to A1 to A3, A5 and A6under Section 313 of Cr.P.C. they denied the same as false, but however, they did not choose examine any witnesses nor did they mark any documents.
7. Having considered the above, the trial Judge found A1 and A2 guilty of offence under Section 489-C alone and accordingly convicted and sentenced them thereunder as indicated in the first paragraph of this judgment. A1 and A2 were acquitted of the other charges; A3, A5 and A6 were acquitted of all the charges and charges against A4 stood abated as he died pending trial. Aggrieved by their conviction and sentence A1 and A2 have preferred the present appeal.
8. I have heard the learned counsel for the respective appellants and the learned Government Advocate [Criminal Side] for the State.
9. The learned counsel for the appellants would submit that absolutely there is no independent evidence on record to show that the appellants were in possession of the counterfeit currency as P.W.1 and P.W.2 have turned hostile and they did not support the prosecution case in any manner. P.W.1 and P.W.2 were not even able to identify the accused in court. When the trial court did not accept the recovery made under Section 27 of the Evidence Act at the instance of A1, it ought not to have acted upon the hostile testimonies of P.W.1 to base conviction.
10. The learned counsel for the respective appellant further submitted that even assuming that the appellants were found in possession of counterfeit currencies as alleged by the prosecution, mere possession of counterfeit currency notes or bank notes by itself is not an sufficient to make out an offence under Section 489-C IPC in the absence of mens rea on the part of the accused.
11. Per contra, the learned Government Advocate has submitted that possession of fake currency notes by A1 and by A2 by itself is an evidence that they were carrying the fake notes to use them as genuine. The trial court while partly disbelieving the recovery of Indian as well as Foreign counterfeit currencies, accepted the possession of counterfeit currency notes in the possession of A1 and A2 and found them guilty of possession of counterfeit currencies. He has further submitted that failure of the appellants to explain such huge recovery from their possession is also an evidence that the appellants had mens rea to use fake currency notes as genuine.
12. I have considered the rival submissions and also perused the records carefully.
13. In the instant case, admittedly, neither there is evidence for possession of counterfeit currencies with A1 and A2 nor are there evidence for recovery of counterfeit Indian and foreign currencies and fake demand drafts at the instance of A1 from his house. P.W.1 and P.W.2 the alleged witnesses for the recovery of counterfeit currencies from both A1 and A2 turned hostile and they did not support the prosecution case in any manner. According to P.W.1 and P.W.2 they were called by the police to come to CB CID Office and they signed the seizure mahazar in the evening at CB CID office as requested by the police. When P.W.1 and P.W.2 were cross examined by the Public Prosecutor, they admitted that at the time when they were asked to sign the statements at 06.00 p.m. in the Office of the CB CID, P.W.6 was not preset there. P.W.6 in his cross examination has tacitly admitted that the mahazar and the statement of witnesses were prepared at the office of the CB CID. Thus, it is clear that mahazar was not prepared at the spot where the accused were intercepted and detained for the alleged possession of counterfeit currencies. However, as rightly pointed out by the learned counsel, though the trial court disbelieved the recovery of counterfeit currencies made under section 27 of the Evidence Act, going by the demeanor of the witnesses, proceeded to convict A1 and A2 alone holding that the prosecution has proved the possession of counterfeit currencies by A1 and A2. Even assuming that the appellants were found in possession of counterfeit currencies, that by itself, would not bring home the guilt of the accused.
14. There is no material before me to show that the appellant had the requisite knowledge that the five hundred rupee notes found from his possession were fake notes nor there is nothing to suggest that with the knowledge that the currencies were fake he intended to use. No specific question was put to the accused when they were examined under Section 313 of Cr.P.C. with regard to the currency notes being fake or counterfeit. It is the settled law that 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 of IPC in the absence of the mens rea.
15. In the light of the above discussion, this court has no option except to hold that the prosecution has failed to prove the charges under Section 489-C of IPC also. Thus, the judgment of the trial court requires interference at the hands of this court and the appellants are entitled for acquittal.
16. In the result, the criminal appeal is allowed; the conviction and sentence imposed on the appellants/A1 and A2 by the trial court are set aside and the appellants/A1 and A2 are acquitted of the charge under Section 489-C of IPC also. Fine amount already paid, if any, shall be refunded to A1 and A2. Bail Bonds executed by the appellants/A1 and A2 shall stand terminated.
08.11.2017 kmk To
1. The Additional Sessions Judge, Fast Track Court-I, Chennai.
2. The Inspector of Police, CB CID, Chennai.
3. The Public Prosecutor, High Court of Madras, Chennai 600 104.
V.BHARATHIDASAN.J., kmk Criminal Appeal Nos.147 & 149 of 2009 08.11.2017