LAWS(KER)-2019-3-202

B K ABDUL REHIMAN Vs. STATE OF KERALA

Decided On March 06, 2019
B K Abdul Rehiman Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The appellants are the two accused in S.C.No.205/2005 of the Court of Session, Kasaragod. They faced trial before the learned Sessions Judge, Kasaragod under Sections 489B and 489C IPC on the allegation that at about 1.30 p.m. on 20.2.2001, at the fish market at Kasaragod, they were found possessing and using counterfeit currency notes for purchasing fish. They were seen using such fake currency notes by a nearby trader, who, with the help of the others, caught the two accused and informed the police over telephone. On getting information, the Additional Sub Inspector of Police, Kasaragod came at the fish market, and he saw the two accused being caught by informant and others. The two accused were handed over to the custody of the Additional Sub Inspector, who, on search, saw one counterfeit currency of Rs.500/- in the possession of the 2nd accused, and two torn currency notes of Rs.500/- in the possession of the 1st accused. The Additional Sub Inspector arrested the two accused on the spot, and seized the counterfeit currency notes as per a mahazar. On the basis of the arrest and seizure, a crime was registered at the Police Station. Another Sub Inspector took over investigation, and later, investigation was taken over by the CBCID. After investigation, the CBCID submitted final report in court.

(2.) The two accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against them. The prosecution examined six witnesses, and proved Exts.P1 to P6 documents in the trial court. The counterfeit currency notes were identified as MO1 and MO2. The two accused projected a defence of total denial. They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.5,000/- each under Section 489B IPC, and to undergo another term of rigorous imprisonment for one year each and to pay a fine of Rs.2,000/- each under Section 489C IPC. Aggrieved by the judgment of conviction dated 27.1.2007, the two accused have come up in appeal.

(3.) On hearing both sides, and on a perusal of the materials, I find no reason for interference in the findings or the conviction made by the court below against the appellants under Section 489C IPC, but, the conviction and sentence under Section 489B IPC is liable to be set aside. Two independent witnesses examined by the prosecution in the trial court turned hostile. Both are the local traders doing some trade at the fish market. They are PW2 and PW3. Of them, PW2 is the person, who informed the police. These two witnesses are the attestors to the detection mahazar. There is nothing to show that anybody had seen the two accused in any manner using the counterfeit notes at the fish market. Of course, the prosecution case is that PW2 and PW3 had seen the two accused using counterfeit currency notes for purchasing fish at the market, and the two accused were in fact caught by them, and later, they handed over the accused to the police. But the two witnesses did not support the prosecution. The evidence of the Sub Inspector, who detected the offence would prove only the seizure of counterfeit notes from the possession of the accused, and that will prove only the offence under Section 489C IPC. Mere possession of counterfeit currency, with the knowledge that it is counterfeit, and also with the object of it being used for some purpose is punishable only under Section 489C IPC. To sustain the conviction under Section 489B IPC, there must be evidence to show that the two accused had in any manner used the counterfeit notes. When such evidence is not there, or when the material witnesses examined by the prosecution to prove this aspect turned hostile, the conviction under Section 489B IPC will have to be set aside.