Moula vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable u/s 489-C of IPC on a trial held by the Sessions Judge. Bangalore Rural.

The facts relevant for the purpose of this appeal are as under:

PW. 1 the ASI Whitefield Police Station, Bangalore, received reliable information on 27.5.1994 at about 1.00 p.m. that some persons are circulating counterfeit notes at Valepura Janatha Colony within the limits of Whitefield Police Station. and he alongwith the Head Constables'' and three independent witnesses PWs. 2, 7 and 9 went to the house of the accused (the appellant herein) and was waiting near the house and at that time the accused came out of his house and after apprehending him on a search on his person seven counterfeit notes of Rs. Ten denomination were found in the shirt pocket and on enquiry the appellant disclosed that the said notes were given to him by Accused Nos. 2 and 3. He seized the said notes in the presence of the attesting witnesses under the mahazar Ex.P. 1 and arrested the accused and after returning to the Police Station he registered Crime No. 98/1994 for the offence punishable under Sections 240, 241, 242 IPC and sent the complaint and the FIR Ex.P.2 to the Magistrate and recorded the voluntary statement of Accused No. 1 as per Ex.P.4.

Further, the CPI PW.6 continued the investigation in respect of other accused persons also and recorded the statement of the witnesses. The seized notes were sent to the Works Manager, RBI, PW.12 who certified that the said notes which were seized from the appellant were counterfeit notes. After collecting all the documents, he filed the chargesheet against. Accused Nos. 1 and 2. The Trial Court after framing the charge recorded the evidence of PWs. 1 to 13 the prosecution witnesses and in their evidence, got marked the documents Exs.P. 1 to P. 16 and MOs. 1 to 29. The statement of the accused were recorded u/s 313 Cr.P.C. They took the defence of total denial. They have not. led any defence evidence The Trial Court on appreciation of the material on record after hearing convicted the appellant for the offence u/s 489-C IPC ordered to undergo imprisonment for three years and to pay fine of Rs. 5.000/-. Aggrieved by the conviction and the sentence the accused has approached this Court in appeal.

I have heard the learned Counsel for the appellant and also the learned High Court Government Pleader. The points that arise for my consideration is:

Whether the judgment and order convicting the appellant for the offence u/s 489-C IPC and the sentence thereon is illegal and perverse?

It is the contention of the learned Counsel for the appellant that the evidence led by the prosecution is insufficient to hold the accused guilty and except the interested version of the police officials and the attesting witnesses who are not from the nearby locality the evidence is insufficient to bring home the guilt of the accused. So also, it is his submission that existence of mensrea has not been proved and that the appellant, was not aware of the notes being counterfeit notes alleged to have been seized from his possession. Under the circumstances it is his submission that the conviction ordered by the Court below is illegal and perverse. Alternatively he submits that the sentence ordered is exorbitant and considering the number of notes seized and the age of the accused, the sentence may be reduced.

Per contra, the learned High Court Government Pleader has supported the judgment and order of conviction and claims that the appellant has not made out any grounds to warrant interference.

I have meticulously scrutinized the evidence led by the prosecution, the documents admitted in evidence and also the statement of the accused. So far as the proof of incident is concerned the prosecution relies upon the evidence of PW. 1 the complainant who is the ASI and he had reliable information about trafficking the counterfeit notes by Accused No. 1 and others. He went to the house of the accused alongwith the lead Constable and the attesting witnesses PWs. 2. 7 and 9 and when the appellant came out of the house he was apprehended and on search seven notes of Rs. 10/-denomination were seized from his pocket and they were found to be the counterfeit notes. The evidence of PW. 1 has been corroborated by the attesting witnesses PWs.7 and 9. They state having found seven counterfeit notes of Rs. 10/- denomination with the appellant and having drawn the mahazar Ex. P. 1 seizing the notes. Though another witness PW.2 has not supported the case of the prosecution, that itself cannot be a ground to discard the evidence relied by the prosecution. PW.13 was also the Head constable who was present at the time of the seizure of the notes under the mahazar Ex.P. 1 alongwith the attesting witnesses and he has also supported the version of the prosecution. So there is the evidence of Pws. 1, 7, 9 and 13 who were present at the time of the seizure of the notes and so far as the evidence regarding the counterfeit notes are concerned, the prosecution has examined PW.12 the Works Manager of the RBI and he states in his evidence that after the examination of the notes, they were found to be counterfeit notes.

The prosecution examined PW.3 the Police Constables so far as the seizure of the notes from other accused under Ex. P.6 and PW.4 is the attesting witness for Ex. P.8 the seizure of the notes from another accused and PW.5 is the Police official who apprehended Accused No. 2. PW. 10 is the Head Constable in respect of the mahazar Ex. P.8 regarding the seizure of notes from Accused No. 2. PW. 11 is the KEB official who states regarding the electric meter standing in the name of the accused and he has issued the certificate Ex.P. 16.

So the scrutiny of the evidence of the above witnesses reveal the seizure of seven notes of Rs. 10/- denomination from the appellant has been proved satisfactorily from the evidence of PWs. 1. 7, 9. 13 and the evidence of PW. 12 is sufficient to prove that the notes were counterfeit notes.

It is relevant to note that all these notes which were in the pocket of the appellant were counterfeit notes. If there were another genuine notes, there could have been some doubt as to whether the appellant was having the knowledge about the notes being counterfeit or otherwise. When all these notes which were in the pocket were counterfeit notes an inference could be drawn that the accused/appellant was aware of the fact that the notes were counterfeit notes.

Further the learned Counsel for the appellant has placed reliance on the decision of the Apex Court reported in Umashanker Vs. State of Chhattisgarh, wherein the accused was 18 years old student and he was alleged to have been paid fake currency notes of Rs. 100/- denomination to the shop keeper and 13 more fake currency notes were received from him and there was no material on record to show that the accused had requisite mensrea, the Apex Court held that merely on the basis of the evidence of the shop keeper and other witnesses that they were able to make out that currency note alleged to have been given to the shop keeper was fake, mensrea cannot be presumed. There was no specific question with regard to the currency note being fake and in such circumstances the Apex Court held that the accused is entitled to acquittal. The facts on hand differ a lot. and the appellant herein is not a student or a person aged about 18 years and furthermore, when it is once proved from the evidence of PW. 12 that the notes seized were counterfeit notes and the evidence of other witnesses reveal that they were seized from the pocket of the appellant invoking the provisions of Section 106 of the Evidence Act. it was for the appellant to explain the circumstances in which he came in possession of the said counterfeit notes.

The perusal of his statement recorded u/s 313 Cr.P.C. is one of denial. He denies having been in possession of the notes. So when the evidence led by the prosecution is acceptable to prove the possession of the notes with the accused and the accused does not offer any explanation, ail adverse inference to be drawn which also comes in favour of the prosecution and even to the question that has been posed as to whether he has anything to say before the Court, the accused says that he has nothing to submit to the Court.

So in the context of these circumstances and the material placed on record I am of the opinion that the decision relied upon by the learned Counsel for the appellant does not apply to the facts on hand. So the re-appreciation of the evidence of the witnesses reveal that it is consistent cogent trust worthy and the Trial Court has not committed any error in accepting the said evidence. Hence, I am of the opinion that the conviction awarded by the Trial Court for the offence u/s 489-C IPC does not call for interference.

Further, the counsel for the appellant submits that the sentence ordered is on higher side and taking into consideration that there are no criminal antecedents and the age of the appellant being 26 years at the time of the incident, he submits that a lenient view be taken by reducing the sentence. It is no doubt true that the accused has been facing these proceedings since from the year 2000. Furthermore, he was convicted by the Trial Court and was ordered to undergo imprisonment for three years. He was aged 26 years at the time of the incident. It is submitted that the appellant has to look after his parents and other family members and as submitted by the counsel and the High Court Government Pleader there are no criminal antecedents. So taking into consideration all these circumstances. I am of the opinion that the sentence awarded is on the higher side and it has to be reduced. In the circumstances, I answer the point partly in affirmative and partly in negative and proceed to pass the following:

ORDER

The appeal is allowed in part confirming the conviction of the appellant for the offence u/s 489-C IPC. The sentence is modified and the imprisonment is reduced to simple imprisonment for six months and the fine as ordered by the Trial Court is confirmed. The counsel submits that the fine is already deposited. In the circumstances, the Trial Court is directed to secure the presence of the accused to undergo the sentence. The appellant is entitled to the benefit of set off u/s 428 Cr.P.C. The appeal is accordingly disposed of.