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2011 DIGILAW 856 (GUJ)

KALUBHAI ALSIBHAI KARANGIA v. STATE OF GUJARAT

2011-12-26

JAYANT PATEL, PARESH UPADHYAY

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JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgment and order passed by the learned Sessions Judge in Sessions Case No.104/03, they are being considered simultaneously. 2. Criminal Appeal No.147/06 is preferred by the original appellant-accused no.1 (hereinafter referred to as “A1”) against the judgment and the order passed by the learned Sessions Judge dated 11.08.2004 in Sessions Case No.104/03, whereby A1 has been convicted for the offence under sections 489A, 489C and 489D of IPC and the sentence has been imposed upon him for 10 years RI with the fine of Rs.10000 for the offence under sections 489A and 489C of the IPC and 3 years RI with fine of Rs.2000 for the offence under section 489D of IPC. However, as by the very judgment and order of the learned Sessions judge, the other accused Nos.A2 to A10 were acquitted by the learned Sessions Judge, the State has preferred Criminal Appeal No.1946/04 against the order of acquittal for original accused Nos.2,3,4 and 8. 3. It appears that as per the prosecution case, PI, Local Crime Branch, Jamnagar, Shri Rajsi Rathod, PW 10, received information that one Kalu Alsibhai Karangia Ahir (A1) residing in the building owned by Dhanabhai Ahir was counterfeiting the currency note and putting into circulation and was also in possession of the fake currency note and therefore, he called two panchas and raided the house of A1 wherein 9 fake notes of denomination of Rs.50 were found from the pocket of the shirt of A1 and 10 fake notes of the denomination of Rs.100 were found from the pocket of the pant of A1 and those notes were recovered. Further in the room, below the bedding, 23 fake currency notes bearing denomination of Rs.100 were also found and were recovered. Further, inside the bedding 9 printing image of notes on one side were found on the blank paper having denomination of Rs.100 each and 4 notes printed on the other side having denomination of Rs.100 were found and other stationary bearing 8 notes of denomination of Rs.100 and 3 notes of Rs.50 were found. Therefore, complaint was filed (exhibit 45) on 02.07.2003 by the said police officer. 4. Therefore, complaint was filed (exhibit 45) on 02.07.2003 by the said police officer. 4. The complaint was investigated by the police officer and thereafter, the charge sheet was filed against in all 11 accused, the relevant for the purpose of present appeals are that the appellant of Criminal Appeal No.147/06 was A1 and the respondents of Criminal Appeal No.1946/04 preferred by the State were A2, A3, A4 and A8. The matter was thereafter ultimately committed to the learned Sessions Judge being Sessions Case No.104/03. The prosecution in order to prove the guilt of the accused, examined 39 witnesses and led the oral evidence, the details of which are mentioned at paragraph no.3 in the judgment of the learned Sessions Judge. The prosecution also produced the documentary evidence of 47 documents, the details of which are also mentioned at the very paragraph in the judgment of the learned Sessions Judge. The learned Sessions Judge thereafter recorded the statement of the accused under section 313 of the Cr.P.C., wherein the accused denied the evidence against them and in the further statement, they only stated that they are innocent and they have not committed any offence. The learned Sessions Judge thereafter, heard the prosecution as well as the defence and found that the prosecution has been able to prove the case against A1, but has not been able to prove the case against A2 to A11 for the offence charged against them. Therefore, the learned Sessions Judge found A1 guilty for the offence under sections 489A, 489C and under section 489D of the IPC and thereafter convicted A1 and imposed sentence as referred to hereinabove. However, the learned Sessions Judge acquitted accused nos. A2 to A11 for the alleged offence. 5. Under the circumstances, the appellant-convict (A1) has preferred appeal against the order of conviction whereas the State has preferred the appeal against the order of acquittal, but limited to the acquittal granted to A2, A3, A4 and A8. There is no appeal against the order of acquittal against the remaining accused. 6. The learned counsel appearing for both the sides have taken us to the entire evidence on record of oral as well as documentary evidences and we have considered the judgment and reasons recorded by the learned Sessions Judge. There is no appeal against the order of acquittal against the remaining accused. 6. The learned counsel appearing for both the sides have taken us to the entire evidence on record of oral as well as documentary evidences and we have considered the judgment and reasons recorded by the learned Sessions Judge. We have heard the learned counsel Mr.Madansinh Barod appearing for the appellantA1 against the order of conviction and Mr.Pandya, learned APP for the State and we have also heard the learned APP for the State in the appeal preferred by the State against the order of acquittal. However, the respondents-original accused Nos.A2, A3, A4 and A8 in the said appeal, though served, have not appeared nor anybody has remained present on their behalf. Hence, we also find it proper to further examine the merit of the appeal of the State against the order of acquittal. 7. Before we proceed to examine the facts of the present case, we may state that section 489A of IPC is made as an offence punishable, if a person is counterfeiting or knowingly performs any part of the process of counterfeiting any currency note or bank note and if such offence is proved, he may be punished with imprisonment for life or with imprisonment of either description which may extend to 10 years and shall also be liable for fine. As per section 489C, if any person is found to be in possession of any forged counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intends to use or actually uses as genuine, such is made punishable with the imprisonment of either description for a term which may extend to 7 years or with the fine or both. As per section 489D, if any person possesses instrument or machinery or any material for the purpose of being used or knowingly or having reason to believe that it is intended to be used for forging or counterfeiting of any currency note or bank note, then such offence if proved is made punishable with the imprisonment for life or the term which may extend to 10 years and shall also be liable to fine. It is in light of the aforesaid three charged under section of IPC, the evidence on record is to be examined. 8. It is in light of the aforesaid three charged under section of IPC, the evidence on record is to be examined. 8. First we may deal with the aspects of possession of the counterfeit currency notes as provided under section 489C of IPC. The prosecution has examined Deepak Kanaiyalal, PW1, Exhibit 30 for supporting its case of raiding the premises in occupation of A1 and recovery made of counterfeit fake currencies. The said witness has supported the case of the prosecution on the aspects that he was called as pancha and he has accompanied the police together with other panchas and when the house was knocked, the person found was A1. He has admitted the signature on the panchnama. He has also deposed that the currency notes of Rs.100 denomination shown to him as muddamal were recovered by the police in his presence. He has also deposed that on a white blank paper, the printed currency notes on the front side of Rs.100 denomination was also recovered by the police in his presence and he also admitted his signature. The other printing image on the white paper of Rs.50 denomination printed on one side were also recovered in his presence. In the cross examination of the said witness, nothing has come out to the contrary. The panchnama, exhibit 31 which has come through the evidence of panch witness fully supports the case of the prosecution. Rajsi Chandrasinh Rathod, p.w.10, exhibit 44, is the Police Inspector, LCB who raided the premises has been examined and the said witness has fully supported the case of the prosecution. Through his evidence, the complaint has come on record, exhibit 45 and he has fully supported the say and he has deposed of the complaint having been filed, the raiding of the premises, the recovery of the fake currency from the pocket of A1 and also the recovery of printed fake currency from the premises of A1. The fake currency recovered from the possession of A1 and premises of A1, were sent to FSL and the FSL report has come on record at exhibit 126 and as per the FSL report, all the fake currencies were found and it is observed that such fake currency appears to have been prepared with the help of Nato inkjet printer. 9. 9. In this manner, the prosecution has been able to prove that the currencies which were recovered from the pocket of A1 as well as from the premises of A1 were found as counterfeit or fake currencies as per the scientific evidence. The aforesaid evidence of the prosecution of raiding the premises is further supported by the testimony of Rambhai Vashrambhai, LCB Head Constable, PW 32, at exhibit 92. He has fully supported the case of the prosecution of raiding the premises by LCB PI Shri Rathod, presence of panchas, recovery of the currency notes from the pocket. The testimony of Dharmendrasinh Lakhubha Zala, PW 36, exhibit 101 also supports the case of the prosecution for raiding and preparation of panchnama of the house of the A1. The prosecution has been able to prove the premises in occupation of A1 as per the testimony of Makhi Bhavan, p.w. 9, exhibit 43 who is the neighbor and he has deposed before the Court that he is doing business of milk and his house is adjacent to the house of Dhanabhai Vira and in the said premises Kalubhai, A1 was staying. The aforesaid evidence, if considered, it shows that the prosecution has been able to prove the case of counterfeit and fake currency notes found from the pocket and the premises of A1. It is not only certain fake currencies found but the same is with the further evidence of the prosecution that half printed fake currencies are also found from the premises which was in possession of A1. 10. In view of the aforesaid evidence on record, merely because at the later stage, one panch witness Dipak, p.w.1, exhibit 30 has stated that when he went to the police station, the accused was present and the accused was sitting in the police station and the panch witness had gone to the house of accused, would not be sufficient to completely discard the reliable evidence led by the prosecution of the fake and counterfeit currency found from the actual possession of A1 as per panchnama from his pocket as well as from the premises in his occupation. In our view, even if the evidence is re-appreciated on the aspect of possession of fake currencies, it can be said that the prosecution has been able to prove the case for the offence under section 489C of IPC. 11. In our view, even if the evidence is re-appreciated on the aspect of possession of fake currencies, it can be said that the prosecution has been able to prove the case for the offence under section 489C of IPC. 11. However, the aforesaid view cannot be expressed for the alleged offence under sections 489A and 498D of the Code. We may first examine the aspect of section 489A for which the charge upon the accused was that he not only knowingly printed the currency but used for putting into circulation as genuine. The prosecution to prove the guilt of A1, on the aforesaid aspect, has examined the witnesses from whom the computer and the printer are said to have been purchased but the relevant and important aspect is that the eye witness Palabhai Devangbhai, PW 29 whose deposition is at exhibit 84 has not at all supported the case of the prosecution and has also been declared hostile. In his cross examination, the prosecution has not been able to show that he had witnessed the incident of printing the currency by A1. On the contrary, the said witness has denied of such statement made before the police for witnessing of the said incident. Therefore, there is no direct evidence led by the prosecution, viz., of any eye witness deposing before the Court that he has seen A1 printing fake currency or any currency with the help of the computer or printer or otherwise. The other most crucial aspect is that the computers and printers which are discovered at the instance of A1 were sent to FSL for the opinion as to whether the muddamals of currency notes of denomination of Rs.50 and Rs.100 which have been recovered and sent to FSL as mark A to M have been printed through the computer system marked “O” (O1 to O6) and marked “N” (N1 to N6). The said communication to FSL is produced at exhibit 122. The opinion of the FSL is dated 08.12.2003 produced with the same exhibit 125 of the FSL dated 10.12.2003. As per the said opinion and the observation made by FSL for computer system of “N” comprising of N/1 to N/5, CPU N/2 which was found in working condition and the image of the currency of Rs.500 and of Rs.50 and of Rs.10 were found. As per the said opinion and the observation made by FSL for computer system of “N” comprising of N/1 to N/5, CPU N/2 which was found in working condition and the image of the currency of Rs.500 and of Rs.50 and of Rs.10 were found. But the pertinent aspect is that as per the FSL opinion, in CPU N/2, no printer has been loaded. Meaning thereby, the CPU did not contain any printer loaded. Therefore, in any case, even as per the opinion of FSL, CPU N/2 could not be said as used for printing. The other opinion given by the FSL to the effect that keyboard of N/3 was not matching/fitting to CPU N/2 when FSL connected copier N/6, it was receiving “error message”. 12. Even for the other computer system of “O” comprising of O/1 to O/6, the observation and the opinion of FSL are that CPU O/2 was not functioning. Therefore, the hard disk was taken out and in the hard disk of CPU O/2, no file was found of currency notes. It has also been further opined that the printer of the system O/4 and the scanner O/5 have not been loaded to the hard disk of CPU O/2. It has also been opined on the aspects of currency notes by the FSL in the same report that the serial number of the currency notes of Rs. 50 and Rs.100 whose images were found in CPU N/2 were not tallying by serial number of currency notes which were recovered as mudammal (A to M) bearing denomination of Rs.50 and it has been further stated in the report that mudammal A to M did not contain any currency note of Rs.500 or Rs.10. 13. The aforesaid opinion of FSL clearly goes to show that mudammal sent for scientific investigation contained fake currency notes of denomination of Rs.100 and Rs.50 only and not of Rs.500 or Rs.10. Further, if no printer was found to have been loaded in the CPU N/2 and if no printer O/4 or scanner O/5 were found to have been loaded in the hard disk of another CPU O/2, it cannot be said beyond reasonable doubt that the computer discovered during the investigation and of which the evidence has been led by the prosecution were the same used for counterfeiting or printing of the currency notes. The said aspect is coupled with the circumstance that the currency notes recovered did not tally with the serial number with the image found of the currency in CPU of N/2. Under these circumstances, we find that even if the evidence produced on behalf of the prosecution for discovery of both the computer systems at the instance of A1 is accepted, such computer system discovered by the police are not as per the opinion of the FSL used for printing of any currency nor the image found in one of the CPU of N/1 of the currency tally by serial number with the muddamal of the currency recovered by the police from A1. As observed earlier, there is no eye witness to the incident of printing currency notes by A1 through which it can be said that the prosecution has been able to prove the case. On the contrary, as observed earlier, the eye witness has not supported the case of the prosecution at all. Therefore, the only other evidence as available to the prosecution was to show the link for printing of the currency notes with the help of the computer system which are said to have been discovered by the police at the instance of A1. There is no other evidence available for showing the link of A1. There is no other evidence available for showing the link of A1 for his involvement in the printing of fake currency. Under these circumstances, we find that the accused A1 would be entitled to the benefit of doubt since the prosecution has not been able to prove the case for the offence under section 489A of IPC for a part in the process of counterfeiting any currency note. 14. Even on the aspects of constitution of the offence under section 489D, the same situation would arise if the evidence on record is taken into consideration. As per the prosecution case, A1 had purchased the computer for forging or counterfeiting of the currency notes with the help of the printer. Both computer systems with the printer (N & O) sent to the laboratory for testing as per the opinion of the FSL could not be said to have been used for forging or counterfeiting of the currency notes beyond reasonable doubt since the printer or scanner have not been found loaded in the CPU of both the computer systems, viz. Both computer systems with the printer (N & O) sent to the laboratory for testing as per the opinion of the FSL could not be said to have been used for forging or counterfeiting of the currency notes beyond reasonable doubt since the printer or scanner have not been found loaded in the CPU of both the computer systems, viz. N/2 and O/2. Therefore, when the prosecution has not been able to prove beyond reasonable doubt showing that the computer system discovered at the instance of the accused are the very computers used for forging or counterfeiting the currency notes, even if the case of the prosecution is believed to the extent that A1 did purchase and possess both the computer systems at the one point of time, it cannot be said that he possessed the computer for forging or counterfeiting currency notes since the actual forging and counterfeiting of the currency notes showing the link, has not been proved by the prosecution beyond reasonable doubt. We may also state that mere possession of any computer system would not be sufficient to constitute the offence under section 489D of the Code unless the prosecution also proves the further requirement of actual use of the computer system for forging or counterfeiting of currency notes. Then only the intention of the person who possessed the computer could be said to have been proved beyond reasonable doubt as required under section 489D of the Code unless the machinery is such which can be used for any other purpose than that of printing or counterfeiting of the currency. Under these circumstances, we find that as the prosecution has not been able to prove the case beyond reasonable doubt for the offence under section 489D of the Code, the benefit of doubt should go to A1. 15. The scope of the appeal preferred by the State against the order of acquittal qua A2, A3, A4 and A8 is very limited inasmuch as it is by now well settled that while exercising the appellate power against the order of acquittal, even if two views are possible, the Court would not exercise the appellate power unless it comes to the conclusion that by material and reliable evidence, the prosecution had proved the case and the finding recorded by the lower court is perverse to the record. Such are not the fact situation in the present case. Such are not the fact situation in the present case. In our view, even if the entire evidence is considered and re-appreciated, we find that it cannot be said that the learned Sessions Judge committed error in concluding that the prosecution has not been able to prove the case beyond reasonable doubt against A2 to A8 for which the appeal has been preferred by the State. Therefore, we find that the contentions raised by the learned APP for assailing the order of acquittal do not deserve to be accepted. 16. In view of the aforesaid, the observations and discussions, the judgment and order passed by the learned Sessions Judge for holding A1 guilty for offence under section 489A and 489D is set aside. Consequently, the conviction recorded and sentence imposed by the learned Sessions Judge upon A1 for both the aforesaid offences shall also stand set aside and the A1 shall stand acquitted for the offence under sections 489A and 489D of the Code. However, it cannot be said that the learned Sessions Judge has committed error in holding A1 guilty for the offence under section 489C of the Code and therefore, the conviction recorded by th learned Sessions Judge of A1 for the offence under section 489C deserves to be confirmed. Since under the impugned judgment, the learned Sessions Judge had jointly convicted A1 for the offence under section 489A and 489C, sentence imposed was 10 years RI with fine, as now, the conviction is to remain for the offence under section 489C of the Code only, we find it just and proper to modify the sentence with 7 years RI and fine of Rs.10000 and 6 months SI for default in payment of fine. Hence, ordered accordingly. 17. Criminal Appeal No.147/06 shall stand partly allowed to the aforesaid extent. Criminal Appeal No.1946/04 shall stand dismissed. Both the appeals are disposed of accordingly.