D.A. ABDUL LATHEEF v. NONE

SRI. B. M. MOHAMMED HANEEF @ HANEEF S/O. LATE B. MOHAMMED KUNHI, AGED ABOUT 48 YEARS, TIMBER MERCHANT, R/AT BASAVESHWARA EXTENSION, KUSHALANAGAR, - 3 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR NATIVE OF BELLARE VILLAGE, SULLIA TALUK-574 201. (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE) ...APPELLANT AND: STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560 001. (BY SRI. B. LAKSHMAN, HCGP) ...RESPONDENT THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 05.04.2013 PASSED BY THE S.J., KODAGU, MADIKERI IN S.C.NO.52/2007- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 489C,489B AND SEC.120B OF IPC AND ETC. THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA - 4 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR ORAL COMMON JUDGMENT Both appeals arise out of the judgment of conviction and order on sentence passed by the Sessions Judge Kodagu, Madikeri in S.C.No.52/2007 dated 05.04.2013.

2. Parties are referred to as per their rank before the trial Court.

3. Brief facts leading to these appeals are that the Inspector of Police, Kushalnagara Circle, submitted charge sheet against the accused for the offence under Section 489-B, 489-C, 120B read with Section 34 of IPC.

4. It is alleged by the prosecution that on 02.09.2006, PW4, B. R. Lingappa, then working as an Inspector in District Crime Detection Branch, Kodagu, received a credible information that two persons in Byachanahally were trafficking counterfeit currency notes and were likely to come near Sathish canteen in that village. On information, he went there with CWs.7 to 10, Head Constables attached to the Crime Detection Branch along with driver, PW.3 and two Panchas CW.3 and CW.4. When they were waiting near the canteen, they found - 5 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR two persons moving in a suspicious manner. The police informants told them that they were the persons who were trafficking counterfeit currency notes. Accordingly, police officials surrounded those persons. One of them disclosed his name as Muhammed Haneef and other as Latheef. They are accused Nos.1 and 2 who have faced the trial in this case. When accused No.1 was searched, in his pant pocket there were 10 counterfeit currency notes of face value of Rs.1,000/- each and ten more such notes of the face value of Rs.500/- amounting to Rs.15,000/- in all. When enquired, the accused No.1 told police officials that he, accused No.2 and one Suresha @ Ashoka, Deepak, Akash, Kalam and others were trafficking in counterfeit currency notes. The notes which were found with accused No.1 were seized. Both the accused were taken to the Kushalnagara police station and produced before PW.8-PSI. PW.4 gave complaint as per Ex.P2 and also produced the Mahazar as per Ex.P.1, under which the counterfeit notes were seized. When the accused were searched, two mobile sets were also found and they were also seized. The mobile sets were also produced before P.W.8. On the basis of the complaint, PW.8, registered a case in Crime No.100/2006 for the - 6 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR commission of alleged offence. He arrested the accused and produced them before the Court. He handed over further investigation PW.10, Circle Inspector Police, Kushalanagar. After investigation, I.O. has submitted the charge sheet against the accused for the alleged commission of offences. After filing the charge sheet, case was registered in C.C.420/2007 and the same case was committed to the Court of Sessions. Case was registered in S.C.No.52/2007.

5. On hearing the charges, the trial Court framed the charges against the accused for the alleged commission of offences. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.

6. To prove the guilt of the accused, in all, 10 witnesses were examined as PWs.1 to 10, 5 documents were marked as ExsP.1 to P.5 and 24 material objects were marked as M.O.Nos. 1 to 24.

7. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. Accused have totally denied the evidence of prosecution witnesses. The mother of - 7 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR the accused No.1 is examined as DW.1. On hearing the argument, trial Court convicted the accused for the offence under Section 489-B and 120-B of IPC. Accused No.1 is found guilty of offence under Section 489-C and both the accused found guilty for offence under Section 489-B and Section 120-B of IPC and passed the sentence to undergo rigorous imprisonment for 7 years and pay a fine of Rs.25,000/- each for the offence under Section 489-B and 120-B of IPC and further, accused No.1 to undergo rigorous imprisonment for a period of 3 years and to pay ₹10,000 for the offence under Section 489-C of IPC. Being aggrieved by the judgment of conviction and order on sentence, accused No.1 has preferred the appeal in Crl.A.No.418/2013 and accused No.2 has preferred the appeal in Crl.A.No.618/2013.

8. The learned counsel for the accused / appellant in Crl.A.No.418, Sri. Nishit Kumar Shetty, would submit that the impugned judgment of conviction and order on sentence passed by the Court below against the appellants for the offence under Section 489-B, 489-C and 120-B of IPC is highly illegal, unreasonable, and arbitrary. The trial Court has committed a serious irregularities and illegalities in appreciating - 8 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR the material evidence available on record and erred in convicting the appellants for the commission of alleged offences. The entire approach made by the trial Court into the matter in dispute is erroneous in law. The evidence placed on record by the prosecution suffers from contradictions, improvements, omissions and the Court below ought to have given the benefit of doubt in favour of appellants. None of the witnesses have deposed that appellants attempted to sell or were trafficking the counterfeit notes. At best, only the offence under Section 418-C would have been made against the appellant.

9. Further, it is submitted that the Court below has failed to appreciate the evidence of DW.1, who is the mother of the accused No.1. The manner in which the raid was conducted and the arrest was made etc. makes the case of the prosecution as highly doubtful. The prosecution has failed to record the statement of independent witnesses at the spot of arrest and seizure.

10. The proprietor or the workers of the canteen have also not been examined before the trial Court. Except the police - 9 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR officials and the panchas, no other independent witnesses have been examined in support of the case of the prosecution. Further, it is submitted that though the alleged offences are cognizable in nature, the I.O. has not registered the case, soon after the receipt of the information as to commission of offences. Further, he has pointed out that in the FIR which is marked as Ex.P5, it is shown by the police that the information is received at police station on 02.09.2006 at 16:10 hours and in General Diary Reference Entry No.(1), time is shown as 04:10 p.m. But, Ex.P1, the Mahazar dated 02.09.2006, reveals that the Mahazar is conducted on the same day between 11.45 a.m. to 02.15 p.m. and the FIR is submitted to the Court on

02.09.2006, at 09.15 p.m. The complaint Ex.P2, reveals that the Police Inspector in District Crime Investigation Unit, Kodagu District, Madikeri, has lodged a complaint on 02.09.2006 at 16:10 hours and on the basis of this complaint case was registered in Crime No.100/2006 for the offence under Section 489-B, 489-C and Section 120-B read with 34 IPC.

11. Before registration of the FIR, the investigation conducted by the I.O. is illegal and not sustainable under law. Further he would submit that, Ex.P2 reveals that, in all, 6 - 10 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR accused were involved in the commission of offence, but the I.O. has submitted charge sheet against only 2 accused. In the charge sheet, the I.O. has not explained anything that whether he has dropped the case against other accused or as to whether the I.O. has investigated against accused Nos.3 to 6. The same is left blank. The conduct of the I.O. will create doubt investigation. The Investigating Officer has mechanically, without proper investigation, has submitted the charge sheet against the accused, which is not sustainable under law.

12. Accused No.1 has given explanation in his statement recorded under Section 313 of Cr.P.C. stating that he is the timber merchant and since there was an enmity between the Police Inspector and himself, the Police Inspector has filed a false charge against him. The same has not been considered by the trial Court. DW.1 has clearly stated before the Court that the I.O took the accused from his house prior to registration of the case against him. On all these grounds he sought to allow the appeal. - 11 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR

13. To substantiate his argument, he has relied on the following decisions:- i) ii) Umashankar V/s. State of Chhattisgarh reported in (2001) 9 supreme court cases 642; State by Lashkar Police Station, Mysore V/s. M.V. Srinivasa, reported in 2003 SCC OnLine Kar; iii) State of Karnataka by town police station, Harihara V/s. Pinki and another in Criminal Appeal No.1252/2016 passed by Hon'ble High Court of Karnataka.

14. Sri. Nishit Kumar Shetty, the learned counsel for the appellant in Crl.A.No.418/2013, would submit that the I.O. has not recovered any currency notes from the possession of the present appellants and the accused No.2 has no knowledge as to the possession of currency notes as alleged by the prosecution and even in his statement under Section 313 of Cr.P.C., he has clearly stated that the charge sheet filed against the accused is with malafide intention and sought to allow the appeal. On all these grounds learned counsel for appellants sought to allow this appeal. - 12 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR

15. Learned High Court Government Pleader Sri. B. Lakshman, would submit that the Trial Court has properly appreciated the material on record and that there are no grounds to interfere with the impugned judgment of conviction and order on sentence, and sought for dismissal of appeals.

16. Having heard the arguments on both sides and on perusal of materials, the following points would arise for my consideration. i. Whether the Trial Court is justified in convicting the accused for the offence under Section 489B and 489C of IPC and Section 120B of IPC? ii. What order?

17. My answers to the above points are as under: Point No.1: Negative, Point No.2: As per final order. Regarding Point No.1:

18. I have examined the materials placed before this Court. It is the case of the prosecution that on 02.09.2006 at Byachanahalli within the limits of Kushalnagara Police Station in - 13 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR furtherance of the common object, the accused entered into criminal conspiracy and agreed to do illegal acts namely circulation of counterfeit currency notes and on the same day accused Nos.1 and 2 in furtherance of their common object forged and possessed the counterfeit currency notes having knowledge that the said currency notes were counterfeit notes. With an intention of being in possession of forged or counterfeit currency notes and also believing that the same are forged and counterfeit currency notes, have intended to use and circulate them as genuine currency notes, thus the accused have committed the alleged offence. To prove the guilt of the accused, the prosecution has examined 10 witnesses and 5 documents were marked as Ex.Ps1 to P5 and 24 material objects marked as M.O.Nos.1 to 24.

19. This case arises out of the complaint Ex.P2 filed by Police Inspector, who is examined as PW4-B.R. Lingappa in which it is stated as under: “ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ: SÉÆÃmÁ £ÉÆÃlÄUÀ¼À ZÀ¯ÁªÀuÉAiÀÄ DgÉÆæUÀ¼À «gÀÄzÀÞ ªÉÆRzÀݪÉÄ zÁR®Ä ªÀiÁr vÀ¤SÉ PÉÊUÉƼÀÄîªÀ §UÉÎ. G¯ÉèÃR: ªÉƺÀdgÀÄ ¢: 02/09/2006. - 14 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR DgÉÆæUÀ¼ÀÄ

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20. On the basis of this complaint, case was registered in Crime No.100/2006 for the offence under Section 489B, 489C and 120B Read with Section 34 of IPC and the FIR was submitted to the Court on 02.09.2006 at 09.15 pm., as per Ex.P5. In Ex.P2, it is clearly stated that this complaint was received on 02.09.2006 at 16.10 hours, same is also mentioned in FIR Ex.P5 in column No.3B that the information received at police station dated 02.09.2006 time 16.10 hours. In the general diary in entry No.1, time is shown as 04.10 pm. The Ex.P1 is the Seizure mahazar dated 02.09.2006 reveals that the police have conducted this mahazar between 11.45 am. to

2.15 pm. It is the case of the prosecution that the police have seized the counterfeit currency notes under mahazar Ex.P1.

21. PW4-B.R. Lingappa has deposed in his evidence that on 02.09.2006 when he was in the police station, he had received the information as to trafficking of counterfeit notes in Kushalnagar from some informants. He left the police station along with his staff in the departmental vehicle at 9.30 am. and - 16 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR reached Kushalnagar at 11.00 a.m. Though PW4-Police Inspector has received the information on 02.09.2006 at 09.30 pm., he has not mentioned the same in the station diary and though the alleged offence are cognizable in nature, however PW4 has not registered the case prior to seizure of these notes, though he had received information on 02.09.2006 at 9.30 am. In view of para No.1194 of Chapter XXVII of Karnataka Police Manual, information coming under any of the following headings received at a police station, shall be registered in the First Information Report book (Form No.126), which is the book prescribed under Section 154, Criminal Procedure Code, 1973: (1) cognizable cases including those referred to the Police by Magistrates for investigation or inquiry under Sections 156(3) and 202 Criminal Procedure Code; (2) fires, missing of cattle and all other occurrences where there is reason to suspect the commission of a cognizable offence; (3) non-cognizable cases endorsed to the Police by Magistrates for investigation or inquiry under Sections 155(2) and 202 Criminal Procedure Code; - 17 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR (4) cases under Sections 41, 102, 107 to 110 of the Code of Criminal Procedure, only one First Information Report being issued if more than one person is involved in a case; (5) reports made to Magistrates with a view to action being taken under Sections 144 and 145 of the Code of Criminal Procedure. (6) cases under Section 182 or 211 IPC when it is proposed to prosecute the complainant for false complaint, although not investigated under Section 155(2) of the Code of Criminal Procedure. Note.- Cases received on transfer from other Police Stations should be re-registered at the receiving Station.

22. In the case on hand, on the basis of the information received by PW4, he has not registered the case in first information report book and submitted the FIR to the Court as required under Section 154 of Code of Criminal Procedure,

1973. The entry made in Ex.P.5-FIR, is contrary to the evidence of PW4 for the reason that when PW4 has received the credible information as to the possession of counterfeit notes by some person, he ought to have entered the same in the general diary reference entry at 9.30 am. Instead of that, he has shown in the FIR that the general dairy reference entry number is

02.09.2006 at 4.10 pm. Before registration of this case, the IO - 18 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR has seized the properties under mahazar-Ex.P1 which is not permissible under the law and the same is also against the provisions of Section 154 of Code of Criminal Procedure and paragraph No.1194 of the Karnataka Police Manual.

23. Ex.P2 - Complaint reveals that PW.4 - Complainant has lodged a complaint against accused No.1 - B.M.Mohammed Haneef, accused No.2 - D.A.Abdul Latheef, accused No.3 - Ashoka @ Suresh, accused No.4 - Aakash, accused No.5 - Deepak and accused No.6 - B.M.Abdual Kalam. Accused Nos.3 to 5 are residents of South Canara and accused Nos.1, 2 and 6 are residents of Bellare Village, Kushalnagara. Though PW.4 has lodged a complaint against six accused, the Investigating Officer has submitted the charge sheet only against accused Nos.1 and 2. In the charge sheet, the IO has not shown any reason or information about accused Nos.3 to 6. In view of Column Nos.6 and 7 of the charge sheet, it is the duty of the IO to show in the charge sheet that as to steps taken against accused. If accused Nos.3 to 6 have not committed any offence, he has to mention the same in the charge sheet that he has to drop the case against the other accused for want of - 19 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR sufficient evidence or he has to file a 'B' report or 'C' report. The IO has not whispered anything as to not taking steps against accused Nos.3 to 6 though PW.4 - Police Inspector has shown the name of accused No.3 to 6 with address. Accused No.1 has given explanation in his statement under Section 313 of Cr.P.C that he is a timber merchant. Since there is an enmity between the police inspector and himself, the police inspector has filed the charge sheet against him.

24. The IO has not properly investigated the case in accordance with the Cr.P.C., and has mechanically submitted the charge sheet against accused, which is not sustainable under law. The Trial Court has not properly appreciated the evidence on record in proper perspective. Accordingly, prosecution has failed to prove the guilt of the accused beyond all reasonable doubts. Hence, the Trial Court is not justified in convicting the accused for the alleged offence. Hence, I answer point No.1 in the negative. Regarding Point No.2 :

25. For the aforesaid reasons and discussion, I proceed to pass the following: - 20 - NC: 2026:KHC:4900 CRL.A No. 618 of 2013 C/W CRL.A No. 418 of 2013 HC-KAR i) ii) ORDER The appeals are allowed. The judgment of conviction and order on sentence passed by the District and Sessions Judge, Kodagu, Madikeri SC.No.52/2007 dated 05.04.2013 is set aside. iii) The appellants are acquitted of the offence under Section 489-B, 489-C and 120-B of IPC. iv) The fine amount, if any, deposited by the appellants shall be returned to them in accordance with law. Registry is directed to send a copy of this judgment along with the Trial Court records to the concerned Court. SD/- (G BASAVARAJA) JUDGE LDC,BN,PHM List No.: 1 Sl No.: 38