1. Thomman Kunju Naina, accused 3 in Sessions Case No. 7 of 1951 on the file of the Quilon Sessions Court, has preferred this appeal against his conviction and sentence by that Court. Together with four other persons he was tried by the Additional Sessions Judge, Quilon, for commission of various offences relating to counterfeit currency notes. There was also a charge against him that he had entered into a criminal conspiracy with accused 1 and 2 to manufacture and traffic in counterfeit currency notes, The learned Judge found the conspiracy charge not proved and acquitted accused 1 to 3 of that charge. Accused 4, Kurumpa Kochikka who was a kept mistress of accused 1 and was charged for being in possession of counterfeit currency notes and various implements to manufacture them was found not guilty and acquitted. The learned Judge, however, found that accused 1 to 3 and accused 5 were guilty of the various specific offences with which they are charged and they were accordingly convicted and sentenced to undergo various terms of imprisonment.
There were three heads of charges against the appellant and they were (i) using as genuine forged or counterfeit currency notes (Section 492B, T.P.C.) (ii) possession of forged or counterfeit currency notes (Section 492D). These form offences under Sections 489B, 489C and 489D, Indian Penal Code. The learned Judge found the appellant guilty on all these counts and sentenced him to undergo three years' rigorous imprisonment under each section with the direction that the sentences should run concurrently. In respect of the offence under Section 492D a fine of Rs. 500/-was also imposed upon the appellant and in default to pay the same he is to undergo rigorous imprisonment for a further period of six months. The appeal is from the above conviction and sentence.
2. This appeal was heard along with the appeals preferred by accused 1, 2 and 5. While reserving our judgment in this for this date, subject to a modification of the sentence passed against accused 2 all those appeals were dismissed the day after the hearing concluded.
3. The appellant herein was represented by counsel and in view of the elaborate arguments addressed at the bar we thought it proper to take time to consider them.
4. The prosecution case has been summarised as follows by the trial Court in para. 2 of its judgment:
The 1st accused Raman Padmanabhan Asari, a native of Chengannoor, is a master craftsman in making machinery and instruments for forging counterfeit currency notes as well as in manufacturing such spurious notes. The second accused Geevarghese Mathai alias Thampi who is also called Mathew and Oonnunni, a native of Kunnathoor, was a regular trader in counterfeit notes especially in districts on the other side of the Ghats. Accused 1 and 2 for their common nefarious object make trek with accused 3 Thommas Nainan alias Kunju Nainan Muthallali, a native of Kottara in Kottarakkara Taluk. For manufacturing notes they collected the necessary machinery, materials and other accessories in accused 3's Kochuputhen Veettil house at Kottara devoting the southern room of the house for the purpose. They thus began counterfeiting currency notes all of the five rupee denomination of 1938 pattern.
This work they commenced in 'Kanni' 1121 and continued up to 'Thulam' 1121, Accused 5 Kesavan Nilakantan Asari alias Neelappan Assari, a native of Kallooppara in Thiruvella Taluk, was an accomplice in the crime, employed mainly for the purpose of trafficking In the counterfeit notes in his place and places around. Accused 1 used to visit the house of P.W. 8, Kannan Padmanabhan Asari, at Vettikkavala in Kottarakara Taluk and it was under a jack tree these accused 1, 2 and 5 used to meet for passing on counterfeit notes and for other connected dealings. Accused 4 Kurumpa Kochikkaj an Ezhava woman of Mejila Pakuthy in Kottarakara Taluk, had been a mistress of accused 1. Accused 1 used to frequently visit that house and used to keep there the instruments and accessories for counterfeiting notes as also counterfeit currency notes. Accused 4 knowing that they were counterfeit notes had kept them in her possession at her residence.
Of the three heads or counts of charges for which the appellant was tried we may at once state that we cannot sustain the conviction for the offence under Section 492B, i.e., using as genuine forged or counterfeit currency notes. The sole evidence against the appellant with regard to that charge consists of the testimony of P.W. 1, a next door neighbour to the house where according to the prosecution the appellant was residing with his wife and children and where-from a very large number of incriminating materials were recovered. That witness is a vendor in jaggery and his evidence is to the effect that some two years before the detection of the case the appellant had at about nightfall one, day taken a counterfeit five rupee currency note to him for the purchase of jaggery. The witness swears that he suspected the genuineness of the note as it contained no water mark. It is also said that the note was soiled.
Apart from the fact that it would be highly unsafe to found such a serious charge as an attempt to pass off a counterfeit currency note as genuine on the uncorroborated evidence of a solitary witness, we venture to observe that the lower Court's finding cannot be maintained unless We blindly adopt the witness's opinion, that the note was a counterfeit one. That note is not before the Court. Nobody heard of this story before this case and even if the incident be true the witness's opinion that the note was a counterfeit one need not necessarily be true. It may well be that he refused to accept it because it was soiled. Whatever that be, we are not prepared to sustain the conviction of the appellant on this count in the charge and accordingly set aside the order of conviction there under and acquit the appellant of the said offence.
5. The other charges are that he was to possession of counterfeit currency notes and that he had also in his possession instruments or materials for forging or counterfeiting currency notes. To a large extent the maintainability of the convictions entered by the learned Judge under these two heads will depend upon whether the appellant was living in the house known as Kochuputhen Veettil house in Kottara Muri, Veliyom Pakuthy, Kottarakara Taluk as alleged by the prosecution or whether Kodathu Puthen Purakkal Veedu in Kottara Muri was his residence as contended for by him.
6. Pursuant to the information P.W. 26 received from accused 1 while the former arrested him at Courtallam for being in possession of counterfeit currency notes and materials to counterfeit such notes on 22.10.1947 a party of the Travancore Police headed by P.W. 28 (Inspector of Police, Kottarakkara) raided Kochuputhen, Veettil house on forenoon of the next day (23.10.1947) and recovered a large number of counterfeit currency notes of the five rupee denomination and a variety of articles for the manufacture of such notes. Earlier in the morning of that date the house of accused 4 was raided and similar incriminating materials were also recovered from there. That raid also was made on account of the information P.W. 26 had received from accused the previous day. P.W. 26 was at that time an Inspector of Police, Madras, C.I.D. Branch.
As a large scale traffic in currency notes of the five rupee denomination was reported from the southern districts of that state he was deputed on special duty to find out the source wherefrom these notes proceeded. During the course of his enquiries he came to know that accused 1 was a master-mind behind that nefarious activity and he had powerful associates both in Travancore and outside to assist him. By a ruse P.W. 26 got accused 1 decoyed, to Tenkasi and succeeded to effect his arrest while he had in his possession as many as five blocks to counterfeit five rupee currency notes (M.Os. 65 to 69), six numbering blocks (M.Os. 71 to 76)) one Kings head metal piece (M.O. 70) and two counterfeit five rupee notes. It was while he was arrested with these things in his possession that accused 1 told P.W. 26 that similar incriminating materials could be found in the house of accused 3 and accused 4.
P.W. 26 was also present when these two houses were searched and Ex. F. is the recovery-list relating to articles recovered from Kochuputhen Veettil House alleged to have been at that time in the occupation of the appellant, his wife and children. The lower Court found that the articles recovered from the house of accused 4 were placed there by accused 1 and that he had custody and control over them. As for the articles recovered from Kochuputhen, Veettil house the finding is they were in the joint possession of accused 1 and accused 3.
In Criminal Appeal 224 which was the appeal preferred by accused 1 we affirmed the lower Court's finding regarding the recovery from the, house of accused 4. We also upheld the finding that accused 1 was responsible for taking many of the incriminating articles recovered from Kochuputhen Veettil house to that place and that he had control over them jointly with others. Who those others are is the question for decision in this appeal. The attempt the defence made was to make out that if at all it was only the appellant's wife who had any joint control or possession with accused 1 over the articles recovered under Ex. F. The burden is certainly on the prosecution to show that the appellant was occupying Kochuputhen Veettil house and that he had joint possession or control over them with accused 1 or at least that they were brought there with his knowledge and consent.
(6a) Before that question is examined we shall just advert as to the nature of the articles recovered under Ex. F. Those articles are M.Os. 1 to 3 & M.Os. 31 to 64. M.O. 1 is a hand press, M.O. 2 a brass plate and M.O. 3 a few wires with pointed ends. M.Os. 31 to 44 consist of small wooden planks, paints of various colours, different kinds of ink, a hand roller, tin tubes, iron plates, pieces of glass, spanner, scissors etc. M.O. 45 is a table from whose drawer as many as 425 forged notes of the five rupee denomination were recovered. Those notes are M.O. 47 series to M.O. 50 series. M.O. 51 to 64 are similar implements as articles M.O. 31 to 44 and also include some blotting paper and 57 pieces of paper cut to the size of five rupee notes.
Shri Ranga Reddi, currency expert to the Government of Madras examined as P.W. 34 gave evidence that the 425 five rupee notes recovered under Ex. F were all counterfeit notes and he has also given reasons therefor. He has further stated that the various articles and implements are of use to manufacture such false notes. His evidence further shows that these 425 like the notes recovered from the house of accused 4 and those recovered from the person of accused 1 at the time of his arrest at Tenkasi were all made with the aid of the blocks accused 1 had in his possession at the time of the arrest. From this evidence and the factum and circumstances (to be referred to hereafter) of the recovery it is clear that the person or persons who had possession of theses notes knew them to be forged or counterfeit and intended to use them as genuine or that it may be used as genuine. Likewise it is also clear that the implements and other articles were also possessed with the same criminal intent.
7. The next and the all important question in the appeal is whether the appellant is shown to have possession of the articles recovered under Ex. F. His case is that so early as 1110 he had assigned away all his properties including the Kochuputhen Veettil house and compound to his wife and children. Thereafter they were in sole possession of all those properties. It is further said that since 1120 he has not even been visiting his wife and children at the Kochuputhen Veettil house. On the other hand the prosecution case is that Kochuputhen Veettil house is and has always been in the possession of the appellant and that he resides there with his wife and children. The lower Court has disbelieved the defence version and has commented upon the appellant's failure to produce the sale deed or a copy thereof in proof of his case.
To counter that he has produced the sale deed in this Court, Though we do not desire to use it against him that would seem, if we may say so, to have given the whole show away. Under that document the appellant gave everything he had to his wife and children, but the original itself is produced by him and it was he who produced it for registration also. It may not, therefore, be far wrong to infer that it is a mere pocket instrument. Be that as it may, we shall decide the question as to whether the appellant was residing in the Kochuputhen Veettil house on the evidence let in before the lower Court.
8. P.W. 16 the appellant's wife and P.W. 17 his daughter have no doubt said that the appellant was living with his mother at Kodathu Puthen Purakkal Veedu. P.W. 16 was treated as hostile and cross-examined as such by the prosecution. A reading of these depositions would clearly show that the deponents are trying to help the appellant. It is only natural but there is overwhelming evidence in the case to show that the appellant was living in Kochuputhen Veettil house with his wife and children. P. W. 1 is a next door neighbour to Kochuputhen Veettil House. P.Ws. 5 and 7 are also neighbours. P.Ws. 15 and 19 are two respectable inhabitants of the locality who have attested Ex. F. All of them say that the appellant has all along been residing in the Kochuputhen Veettil House.
P.W. 19 though an attestor to Ex. F was by no means inclined to support the prosecution with his evidence as to the circumstances of the recovery. He would have it that he went there only when the 'mahazar' was being prepared; that is after the articles were already recovered. But on the point of the appellant's residence he has in unmistakable terms stated that he has been living there for the past fifteen or more years. He has also said that the appellant it is who looks after the properties. The evidence of P.W. 15 is equally definite. P.Ws. 5 and 7 go further and say that accused 1 and the appellant were close associates and were moving on very intimate terms. On, the above evidence we have little hesitation to agree with the trial Court that the appellant was residing with his wife and children in the Kochuputhen Veettil house.
9. He was the only adult male member of the family and it is impossible to believe that accused 1 would have been admitted there without his knowledge. As mentioned P.Ws. 5 and 7 say that accused 1 and the appellant were often seen together. The evidence of P.W. 22 also supports it He is a brother of P.W. 2 who made the hand press M.O. 1 for accused 1 and P.W. 22 swears that accused 1 and the appellant had gone to their house one night in search of P.W. 2. The evidence in the case leaves no room for doubt that accused 1 was an expert hand in making the tools and the machinery for counterfeiting currency notes and that he was actually making them. The prosecution case is the place where these were made was the Kochuputhen Veettil house. From the nature of the articles recovered from there that looks extremely probable. Why should such a person be given admission to the appellant's house? He is a stranger to the place and belongs to a different community altogether. Normally he could have had no community of interests with the appellant.
The articles which were kept there and which could easily have been noticed by any occupant thereof are not of the kind usually needed in an ordinary house-hold. The head of the house, or house-master as the appellant was could not and would not have tolerated accused 1 in the house unless he was himself a party or privy to the activities of accused 1. Even if accused 1 was originally admitted there innocently, so long as he was allowed to continue there and the appellant who had the liberty to turn him out did not do so, he can and has to be presumed to be an accessory to the activities of accused 1 and he may even be held to be in possession of the materials used in such activities.
10. At the bar a battle royal was sought to be waged between opposing counsel as to the much debated question whether where incriminating articles are recovered from a place in the occupation of more persons than one and it is not possible to fix the liability on any particular individual a Court is bound to hold that the said articles were in the possession or under the control of the head of the family. While we are in respectful agreement with the view taken in the Lahore Full Bench decision cited by the appellant's learned Counsel - Emperor v. Santa Singh AIR 1944 Lah. 339 (F.B.)(A), that where possession and criminal intents formed the essential elements of an offence there is no place for any presumption and that 'mens rea' or guilty knowledge must be established before a person can be convicted of such possession, the lower Court's finding that the appellant had possession of the incriminating materials recovered from the Kochuputhen Veettil house is not based on any such presumption at all. Every case must depend on its particular facts and the Courts must consider each case and come to a conclusion whether it is proved that incriminating article was in the possession of any particular person or in the possession of more than one person. It is fallacious to think that the possession must be exclusive; it might well be possession of two or more persons.
11. We have adverted to various circumstances to fasten guilty knowledge on the part of the appellant in the matter of allowing accused 1 to keep his articles for manufacturing counterfeit currency notes in his house. From facts proved in the case as against accused 1, his use of the Kochuputhen Veettil house, for a considerably long period and his close association with the appellant together with the circumstance that some of these articles were seen in places in which could not have escaped the notice or attention of any occupant of that house are sufficient to bring home the guilt to the appellant. (Their Lordships considered other evidence against the accused and proceeded :)
12-13. We accordingly confirm the conviction made by the lower Court for these offences. The learned Judge as mentioned earlier convicted the appellant under three counts and sentenced him to undergo rigorous imprisonment for three years under each count and also to pay a fine of Rs. 500/- in addition for the offence under Section 492D. In default to pay the fine the appellant is to undergo rigorous imprisonment for a further period of six months. The substantive sentences of imprisonment are to run concurrently. We have set aside the conviction under Section 492B but that will not give any material benefit to the appellant unless we reduce the period of the substantive sentence.
We cannot in the circumstances of the case persuade ourselves to hold that the sentence of three years' rigorous imprisonment for each count with a direction that they should run concurrently is at all severe. While we affirm it we set aside the fine the lower Court imposed on the appellant for the offence under Section 492D. No such fine was imposed on the three other accused convicted in the case and when a substantial term, of imprisonment has been awarded to the appellant we consider it unnecessary to add a sentence of fine to it. Subject to this modification in the sentence and the acquittal of accused for commission of the offence under Section 492B the appeal will stand dismissed.