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IN THE HIGH COURT OF CIRCUIT BENCH AT DHARWAD DATED THIS THE 16 TH DAY OF JULY 2013 BEFORE THE HON’BLE MR. JUSTICE N. ANANDA

CRIMINAL APPEAL No.497/2008 C/W CRIMINAL APPEAL Nos.545/2008 & 2520/2008

CRL.A.No.497/2008 BETWEEN: Basappa @ Basavaraj Mallikarjun Mavinkatti Aged about 30 years, Occ: Agriculture R/o. Koldur, Taluk & District: …Appellant

(By Sri G.M.Bhat, Advocate for Sri Bahubali A.Danawade, Advocate)

AND: The State of Karnataka By Hirebagewadi Police, Belgaum. …Respondent

(By Sri K.S.Patil, HCGP)

CRL.A.No.545/2008 BETWEEN: Suresh Basappa Bannakki Aged about 29 years Occ: Completed B.Com and working as lecturer in KLE Society’s College at Athani, R/o. , Taluk: Bailhongal District: Belgaum. …Appellant

(By Sri G.M.Bhat, Advocate for Sri Bahubali A.Danawade, Advocate) 2

AND:

The State of Karnataka By Hirebagewadi Police, Belgaum. ….Respondent

(By Sri K.S.Patil, HCGP)

Crl.A.No.2520/2008

BETWEEN:

Sri Yallappa S/o. Mallappa Harijan @ Madar Age: 45 years, R/o. Taluk: Bailhongal, District: Belgaum. …Appellant

(By Sri Santosh B.Malagoudar, Advocate)

AND:

The State of Karnataka By Hirebagewadi Police Belgaum Rep. by State Public Prosecutor Circuit Bench Building, Dharwad. … Respondent

(By Sri K.S.Patil, HCGP)

Crl.A.Nos.2520/2008, 497/2008 & 545/2008 are filed by accused 2 to 4 under section 374(2) Cr.P.C., praying to set aside the judgment dated 08.04.2008 passed in S.C.No.262/2006, on the file of Presiding Officer, FTC-II & Addl.Sessions Judge at Belgaum & etc.

These appeals coming on for final hearing this day, the court delivered the following: 3

J U D G M E N T

Criminal Appeal Nos.2520/2008, 497/2008 &

545/2008 are filed by accused 2 to 4 in S.C.No.262/2006, on the file of Presiding Officer, FTC-II & Addl.Sessions Judge at Belgaum, respectively. Accused 2 to 4 along with accused

No.1 were tried, convicted and sentenced for offences punishable under sections 489A, 489B & 489C IPC. Accused

No.1 has not filed appeal against impugned judgment of conviction.

2. I have heard Sri Santosh B.Malagoudar, learned counsel for accused No.2, Sri G.M.Bhat, learned counsel for accused 3 & 4 and Sri K.S.Patil, learned HCGP for State.

3. In brief, the case of prosecution is as follows:-

On 22.06.2006 at about 12 in the noon, PW15-

Rajshekhar B.Mestri, PSI of Hirebagewadi Police Station received information from PW9-Basalinga C.Wali that one person had come to his arrack shop to circulate counterfeit currency notes of Rs.100/- denomination as genuine 4

currency notes and that person also offered 11 counterfeit currency notes of Rs.100/- denomination in exchange of

Rs.500/- genuine currency notes. Therefore, PW15-

Rajshekhar B.Mestri, PW12-Maruti B. & PW13-

Balappa S.Hadaginal proceeded to the arrack shop of PW9.

PW15 seized two counterfeit currency notes of Rs.100/- denomination from possession of PW9. On enquiry, PW9 showed accused No.1, who was near the arrack shop adjacent to Hirebagewadi-Bailhongal Bus Stop. Accused

No.1 was apprehended by PW12 & PW13. PW15 searched the person of accused No.1 and found 151 counterfeit currency notes of Rs.100/- denomination. PW15 secured panchas and seized 151 counterfeit currency notes of

Rs.100/- denomination under panchnama as per Ex.P.1.

PW15 brought accused No.1 to Hirebagewadi Police Station and registered Crime No.76/2006 and subjected seized property to property form and despatched first information report. PW15 handed over further investigation to PW17-

Guddappa M., who was the then Police Inspector of 5

Hirebagewadi Police Station. PW17 during further investigation found involvement of accused 2 to 4 and also learnt that accused 2 to 4 were arrested in connection with

Crime No.89/2006, registered by APMC Police Station at

Belgaum and they were in custody. PW17 secured accused 2 to 4 under body warrants and interrogated them. The voluntary statement given by accused No.2 led to recovery of

10 counterfeit currency notes from the house of accused

No.2. The voluntary statement given by accused No.3 led to recovery of 5 counterfeit currency notes from the house of accused No.3. The voluntary statement given by accused

No.4 did not led to any recovery. PW17 learnt that an Epson

Stylus CX1500v All-in-one Printer used for printing counterfeit currency notes and certain number of counterfeit currency notes had been seized from the shop of accused

No.4 in his shopping complex of Bailhongal in Crime

No.89/2006, registered by APMC Police at Belgaum.

4. The counterfeit currency notes had been sent to

Currency Note Press at Nasik for expert opinion. The expert 6

namely Sri M.K.Srivastava, Assistant Works Manager,

Gazetted Officer, Class-I, for General Manager, Currency

Note Press, Nasik Road (M.S.) furnished his opinion as per

Ex.P.18, wherein it is stated that counterfeit currency notes of Rs.100/- denomination, in all 177 are forged notes. The expert has given reasons for arriving at such conclusion. The defence has not controverted the contents of Ex.P.18. It is not the case of defence that counterfeit currency notes produced by prosecution are genuine currency notes.

5. The learned trial Judge, without scrutiny of investigation records has framed charges against accused 1 to 4 for offences punishable under sections 489A, 489B &

489C r/w 34 IPC. The investigation records do not reveal material to charge accused 1 to 3 of an offence punishable under section 489A IPC.

6. In order to bring home the guilt of accused, prosecution examined PW1 to PW17 and relied upon documents marked as Ex.P.1 to Ex.P.18 and material objects 7

marked as M.O.1 to M.O.12. The material objects consist of counterfeit currency notes and one Epson Stylus CX1500v

All-in-one Printer.

7. PW1 to PW11 did not support the case of prosecution.

They were treated as hostile witnesses and they were subjected to cross-examination by learned Public Prosecutor.

Even during cross-examination, they have stuck to their versions given in examination-in-chief. PW9, who according to the case of prosecution had given information to police about circulation of counterfeit currency notes by accused

No.1, did not support the case of prosecution. PW9 was also declared as a hostile witness and he was cross-examined by learned Public Prosecutor. Even during cross-examination,

PW9 has stuck to his version given in examination-in-chief.

PW10 & PW11 have not supported the case of prosecution.

8. At this juncture, it is relevant to state that PW10-

Basavaraj N.Hanchinmani was examined to prove that PW9 8

had gone to a telephone booth to inform police about circulation of counterfeit currency notes by accused No.1.

9. PW11-Shivanand Irappa Navi was running a barber shop, situate near the arrack shop where PW9 was working.

PW11 has not supported the case of prosecution.

10. PW14-Hanamanth D.Kelaginmani was examined to prove recovery of counterfeit currency notes from the house of accused No.2. PW14 has not supported the case of prosecution.

11. Therefore, prosecution has relied on the evidence of

PW12-Maruti B.Chinchewadi, the then ASI of Hirebagewadi

Police Station, PW13-Balappa, the then Police Constable of

Hirebagewadi Police Station, PW15-Rajshekhar

Basavanneppa Mestri, the then PSI of Hirebagewadi Police

Station, PW16-Shrinivas, the then Police Inspector of Camp

Police Station (APMC Police Station was coming under the

jurisdiction of PW16) and PW17-Guddappa, the then Police

Inspector of Hirebagewadi Police Station. 9

12. The evidence of PW12 regarding apprehension of accused No.1 and seizure of 151 counterfeit currency notes of Rs.100/- denomination from his possession and seizure of

10 counterfeit currency notes from PW9 has not been seriously controverted.

During cross-examination of PW12 by learned counsel for accused No.1, nothing was elicited to discredit his evidence. The cross-examination of PW12 is mere suggestive cross-examination.

13. The evidence of PW13-Balappa is more or less similar to the evidence of PW12.

During cross-examination of PW13, apart from eliciting that counterfeit currency notes seized by

Investigating Officer were bearing similar serial numbers,

who in fact supported the case of prosecution, nothing has been elicited to discredit the evidence of PW13. 10

14. As already stated, PW15 is the PSI of Hirebagewadi

Police Station. On receipt of information, he proceeded to the place and apprehended accused No.1 and seized 151 counterfeit currency notes of Rs.100/- denomination from possession of accused No.1 and 11 counterfeit currency notes from possession of PW9. PW15 has deposed about preparation of first information report and registration of case against accused No.1. As already stated, accused No.1 has challenged the impugned judgment. The impugned

judgment as it relates to accused No.1 has attained finality.

Therefore, it is necessary to appreciate incriminating

evidence adduced by the prosecution against accused 2 to 4.

15. At the out set, it is necessary to state that accused 2 &

3 were not found in physical possession of counterfeit currency notes. It is the case of prosecution that voluntary statement given by accused No.2 led to recovery of 10 counterfeit currency notes of Rs.100/- denomination from the house of accused No.2 in Harijan Keri of village, 11

Bailhongal Taluk. The voluntary statement given by accused

No.3 led to recovery of 5 counterfeit currency notes of

Rs.100/- denomination from his house in Koldur Oni. The

Investigating Officer (PW17) had learnt from accused 1 to 3 that accused No.4 had printed counterfeit currency notes in his computer centre situate in a shopping complex at

Bailhongal. Accused No.4 had circulated counterfeit currency notes. These statements were made by accused 1 to

3 when they were in police custody. Therefore, the proof of case of prosecution necessarily depends upon appreciation of evidence of PW17 and recovery of counterfeit currency notes and other incriminating material.

16. Before adverting to appreciation of evidence of PW17, it is necessary to state that accused No.2 was arrested in

Crime No.89/2006 by APMC Police Station at Belgaum.

Accused No.3 was arrested on 27.07.2006 in relation to same crime number by APMC Police Station at Belgaum.

Accused No.4 was arrested on 27.07.2006 in relation to same crime number by APMC Police at Belgaum. In the 12

instant case, they were secured by PW17 under body

warrants. The evidence given by PW17 against accused No.4 is the replica of evidence given against accused No.6 in

S.C.No.27/2007.

17. The learned trial Judge has held that accused No.4 in the instant case, who is accused No.6 in S.C.No.27/2007

was found in possession of Epson Stylus CX1500v All-in-one

Printer and other incriminating material and they were used by him to prepare counterfeit currency notes. The learned trial Judge has held that as many as 21 counterfeit currency notes were seized from possession of accused No.6 (accused

No.4 in the instant case). The judgment of conviction and sentence of accused No.6 in S.C.No.27/2007 has been confirmed by this court in Criminal Appeal No.546/2008.

The evidence adduced by prosecution in the instant case is the replica of evidence adduced by prosecution in

S.C.No.27/2007. Therefore, evidence of PW17 is hardly sufficient to prove offences alleged against accused No.4, as counterfeit currency notes, Epson Stylus CX1500v All-in-one 13

Printer and other material had already been seized by

Investigating Officer in Crime No.89/2006 on 27.07.2006.

18. Now adverting to the evidence adduced against accused 2 & 3, the prosecution has relied on evidence of

PW17, who has deposed that accused 2 & 3 had been arrested on 26.07.2006 and 27.07.2006 in Crime

No.89/2006 and they were in judicial custody. PW17 secured them under body warrants. PW17 has deposed that on 18.08.2006, he took accused No.2 to police custody.

Accused No.2 gave voluntary statement as per Ex.P.13 that if he is taken to his house, he will hand over counterfeit currency notes.

The voluntary statement of accused No.2 (Ex.P.13) is in the nature of confession statement. In Ex.P.13, accused

No.2 has not stated that he had kept or concealed counterfeit currency notes in his house.

19. The evidence of PW17 in proof of recovery of 10 counterfeit currency notes from the house of accused No.2 does not inspire confidence. 14

20. PW17 has deposed after the recovery of tainted currency notes from the house of accused No.2, he prepared a contemporaneous record (panchanama). The original of such contemporaneous record was not produced before the trial court. The prosecution has not produced documents to show that on 18.08.2006, accused No.2 was in police custody. The independent witnesses examined to prove alleged recovery have not supported the case of prosecution.

Above all, accused No.2 had been arrested on 27.07.2006 in

Crime No.89/2006. If accused No.2 had kept counterfeit currency notes in his house, the Investigating Officer in

Crime No.89/2006 would have searched the house of accused No.2. The evidence of PW17 and the contents of seizure mahazar do not reveal that accused No.2 was in exclusive possession of house from where recovery of ten counterfeit currency notes took place. In Crime No.89/2006, accused No.2 was arrested on 26.07.2006. Accused No.2 had not made voluntary statement in Crime No.89/2006. In the circumstances, it looks improbable that accused No.2 gave 15

voluntary statement after a period of 21 days, that too after he was secured under a body warrant.

21. PW17 has deposed that on 15.09.2006 he took accused No.3 to police custody under body warrant. On the same day, accused No.3 gave voluntary statement as per

Ex.P.14.

The voluntary statement as per Ex.P.14 is in the nature of confession statement. Accused No.3 has not stated he had concealed counterfeit currency notes in his house.

22. PW17 has deposed the entire confession statement made by accused No.3. The learned trial Judge has recorded evidence of PW17 without regard to restrictions contained under section 27 of the Evidence Act. The evidence of PW17 in proof of recovery of 5 counterfeit currency notes from the house of accused No.3 under panchnama marked as Ex.P.3 does not inspire confidence. The original of Ex.P.3 was not produced before the trial court. The prosecution has not 16

produced documents to prove that as on 15.09.2006, accused No.3 was given to custody of PW17.

23. As per the evidence of PW17, accused No.3 in the instant case was arrested on 27.07.2006 in Crime

No.89/2006 by APMC Police. In the aforestated crime, accused No.3 of the instant case had not given any voluntary statement. In the circumstances, the evidence of PW17 that accused No.3 in the instant case gave voluntary statement after he was secured under a body warrant on 14.09.2006, after a period of 54 days from the date of his arrest looks improbable. The independent witnesses examined to prove recovery of 5 counterfeit currency notes in the house of accused No.3 have not supported the case of prosecution.

The evidence of PW17 and the contents of recovery mahazar do not reveal that house from where alleged counterfeit currency notes were recovered was in exclusive possession of accused No.3. 17

24. The learned trial Judge, without noticing these discrepancies and basic infirmities in the evidence adduced by prosecution has erroneously held accused 2 to 4 guilty of offences punishable under sections 489A, 489B & 489C IPC.

The learned trial Judge has failed to notice that evidence adduced against accused No.1 and evidence adduced by prosecution in proof of offences alleged against accused 2 to

4 is entirely different to prove offences alleged against accused 2 to 4. The learned trial Judge has reiterated confession statements recorded in the form of voluntary statements of accused 2 to 4. The learned trial Judge appears to have been swayed by the confessional statements of accused 2 to 4, without bearing in mind the extent of admissibility of such statements under section 27 of the

Evidence Act. Therefore, the impugned judgment as it relates to conviction of accused 2 to 4 for offences punishable under sections 489A, 489B & 489C IPC cannot be sustained. 18

25. In the result, I pass the following:-

ORDER

Criminal Appeal Nos.2520/2008, 497/2008 &

545/2008 are accepted. The impugned judgment as it relates to conviction of accused 2 to 4 (in S.C.No.262/2006) is set aside. Accused 2 to 4 are acquitted of offences punishable under sections 489A, 489B & 489C IPC in S.C.No.262/2006, on the file of Presiding Officer, FTC-II & Addl.Sessions Judge at Belgaum. The bail bonds executed by accused 2 to 4 stand cancelled. If accused 2 to 4 have deposited fine amount, the same shall be refunded to them.

SD/- JUDGE SNN