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2012 DIGILAW 336 (CAL)

Amal Kumar Saha v. STATE OF WEST BENGAL

2012-04-19

KANCHAN CHAKRABORTY

body2012
Judgment Kanchan Chakraborty, J. 1. THIS appeal is directed against the order of conviction and sentence dated 8.8.2003 passed by the learned Additional Sessions Judge (2nd Court), Krishnanagar, Nadia whereby the appellant was found guilty for committing offence under Section 489B and 489C of the I.P.C. and sentenced to suffer R.I. for seven years and to pay a fine of Rs.2,000/- i.d. to suffer R.I. for one year for the offence under Section 489B of the I.P.C. and also sentenced to suffer R.I. for five years and to pay a fine of Rs.1,000/- i.d. to suffer further R.I. for six months for the offence under Section 489C of the I.P.C. 2. THE sole convict Amal Kumar Saha has preferred this appeal challenging the sustainability of the judgment mainly on the following grounds; a) that the learned Court failed to appreciate the evidence in true and proper perspective; b) that the learned Court failed to consider that the cognizance taken by the learned Magistrate was bad in law in view of Section 167 (5) of the Cr. P. C. and there was inordinate delay in submitting charge sheet; c) that the currency notes, allegedly fake, were not seized directly from the possession of the appellant and the same were not produced in Court in course of trial; d) that the learned Court failed to consider the evidence adduced on behalf of the defence and that the examination of the accused under Section 313 of the Cr. P.C. was not properly done; e) that the judgment being otherwise bad in law, is liable to be set aside. To appreciate the entire matter, it would be expedient to refer the factual matrix succinctly. Biswanath Halder, Branch Manager, State Bank of India, Karimpur Agricultural Development Branch lodged one complaint with Karimpur Police Station alleging therein that on 4.5.1995 at about 12.00 noon, the appellant Amal Kumar Saha came to the bank and deposited four numbers of 500/- rupees notes in his loan account No. ATL 30/181 in the cash counter. The Cash Officer, Nityananda Sarkar upon receiving the said currency notes doubted the genuinity of the currency notes and on careful scrutiny of the same, it appeared to him as well as the Branch Manager that the said currency notes were counterfeited. The appellant, Amal Kumar Saha was handed over to the Police with the counterfeited notes. The Cash Officer, Nityananda Sarkar upon receiving the said currency notes doubted the genuinity of the currency notes and on careful scrutiny of the same, it appeared to him as well as the Branch Manager that the said currency notes were counterfeited. The appellant, Amal Kumar Saha was handed over to the Police with the counterfeited notes. The case was investigated into and ended in a charge sheet under Section 489B and 489C of the I.P.C. The appellant was arrayed to face the above charges to which he pleaded not guilty. Accordingly, the trial commenced. In course of trial, as many as nine witnesses were examined on behalf of the prosecution. Some documents, such as, forwarding letter, signature list, FSL report, F.I.R., seizure lists were admitted into evidence and marked exhibits on behalf of the prosecution. 3. IN the trial Court, the appellant examined one witness viz., Ananta Mondal. No document, however, was filed on behalf of the defence in course of trial. Upon consideration of the evidence on record of both the parties, oral and documentary, the learned Trial Court came to the conclusion that the prosecution brought home the charges levelled against the appellant and accordingly, passed the impugned order of conviction and sentence. 4. THE point to be considered in this appeal is whether the judgment impugned is sustainable in law. THE F.I.R. that has been marked as Ext.1 shows that on the very date, the incident had taken place, it was lodged with the police station by the Branch Manager, State Bank of India, Karimpur Branch. It says that on that date, at about 12.00 noon, the appellant Amal Kumar Saha came to deposit money in his loan account being ATL 30/181 and tendered four numbers of 500 rupees notes bearing Nos.9AS 369984, 7BK 064559, 4AG 501670 and 9AS 369984 in the cash counter wherein Cashier, Nityananda Sarkar was in-charge. But Nityananda Sarkar upon receiving of the same doubted about the genuinity of the notes and on scrutiny, it was found that the notes tendered by the appellant, Amal Kumar Saha were counterfeited. The appellant was handed over to the police station with the counterfeited notes, pay-in-slip and pass book. 5. THE story of F.I.R. has been stated by Biswanath Halder, the Branch Manager, as P.W.4 categorically. The appellant was handed over to the police station with the counterfeited notes, pay-in-slip and pass book. 5. THE story of F.I.R. has been stated by Biswanath Halder, the Branch Manager, as P.W.4 categorically. I have carefully gone through his evidence recorded by the learned Court and found that there is no variance in his statement made in the Court as well as the statement made in the F.I.R. He was cross examined extensively by the defence and it is also found that as far as the substantive case of the prosecution to the effect that the appellant Amal Kumar Saha came to the bank on 4.5.1995 and that he tendered four numbers of 500/- rupees notes bearing Nos.9AS 369984, 7BK 064559, 4AG 501670 and 9AS 369984 to the cash counter which was under control of Nityananda Sarkar, the Cash Officer, has not been shakened. He rather stood against the test of prosecution very nicely and I find that there was no reason for the learned Trial Court to disbelieve his statement. THE relevant register and the pass book were produced in Court. THE material Ext.1 (Pass Book) confirmed that the appellant Amal Kumar Saha had been maintaining a loan account being ATL 30/181 with the Bank. THE money which was tendered by Amal Kumar Saha, the appellant was accompanying a deposit receipt which was also produced in Court, admitted into evidence and marked material Ext.2. It bears the signature of the appellant, Amal Kumar Saha which tallied with his signature in the Vakalatnama he filed when he entered into appearance through a lawyer. THE signatures were examined by the competent authorities and those signatures tallied with each other. This also confirms that the notes were tendered with deposit slip by the appellant, Amal Kumar Saha in the cash counter on that particular date in connection with his loan account being No. ATL 30/181 on 4.5.1995 and the amount he wanted to deposit was Rs.2,000/- only. 6. THE person in-charge of the cash counter on the relevant date was Nityananda Sarkar who was examined as P.W.5 in the learned Trial Court. 6. THE person in-charge of the cash counter on the relevant date was Nityananda Sarkar who was examined as P.W.5 in the learned Trial Court. He has supported the version of the P.W.4 as well as the facts stated in the F.I.R. There is no discrepancy whatsoever in his statement regarding the substantive case of prosecution to the effect that the appellant Amal Kumar Saha came to the Branch on 4.5.1995 at about 12.00 noon, tendered four numbers of 500/- Rupees notes in connection with his loan account being Nos.9AS 369984, 7BK 064559, 4AG 501670 and 9AS 369984 and upon receiving of such notes, he doubted the genuinity of the notes and taken the said notes to the Branch Manager (P.W.4) who together examined the notes and found that the notes were counterfeited. Then and there, police was informed and the notes, pass book, voucher together with the appellant were handed over to the police who seized those pass book, voucher and notes under a seizure list. The seizure list has been marked as Exts.2, 3 and 4. The Ext.4, i.e., the seizure list in respect of four numbers of questioned notes shows that those were received on being produced by Biswanath Halder (P.W.4), Branch Manager. There is a foot note in the Ext.4 which makes it clear that Biswanath Halder, the Branch Manager handed over those notes to the police which he received from the appellant Amal Kumar Saha. The receipt voucher was seized under Ext.3. It has also been proved that the receipt voucher of deposit Rs.2,000/- signed by the appellant, Amal Kumar Saha was seized as produced by the Branch Manager. The Ext.2 is the pass book belonging to Amal Kumar Saha in connection with his loan account No. ATL 30/181. It was supposed to be in the possession of the appellant and in fact, the Ext.2 shows that it was placed by him in the bank for the purpose of making entry regarding his deposit on 4.5.1995. All these facts together supports the statement of P.Ws.4 and 5. Mr. Safiullah, learned Counsel appearing on behalf of the appellant contended that there was no seizure directly from the appellant. As such, it cannot be said that the accused was possessing forged counterfeit notes and as a result, he cannot be said to have been possessing counterfeited currency notes. 7. Mr. Safiullah, learned Counsel appearing on behalf of the appellant contended that there was no seizure directly from the appellant. As such, it cannot be said that the accused was possessing forged counterfeit notes and as a result, he cannot be said to have been possessing counterfeited currency notes. 7. EACH and every case is to be analysed independently as it depends on the facts and circumstances of the case. When a note is delivered or used, the person used passes it over to the another person. The person who receives the same, if finds that the notes counterfeited, he is not supposed to return it back the person who has given it to him specially in an institution like Bank where someone tries to pass counterfeit notes. Naturally, in the instant case, when the appellant passed the counterfeited notes to the Cashier in order to make a deposit entry in his loan account, in all probabilities, he was not supposed to have the notes with him when it was examined, found counterfeited and handed over to the police. 8. THEREFORE, the logic of Mr. Safiullah, learned Counsel appearing on behalf of the appellant is not applicable in this particular case. The fact that he used the notes cannot be denied in view of evidence of P.Ws.4 and 5 supported by the Exts.1, 2, 3 and 4. The notes were found counterfeited as it appears clearly from Ext.5, i.e., result of the examination by the Forensic Science Laboratory, Government of West Bengal. P.W.8 was a man who was declared hostile by the prosecution. Her evidence is neither useful for the prosecution nor beneficial to the defence also. P.W.9 is the I.O. of the case who has supported wholeheartedly the case of the prosecution and made statement corroborating the statements of P.Ws.4 and 5. There is nothing in his cross examination which could create doubt in the mind of the Court that four numbers of counterfeited notes were tendered by the appellant in the cash counter on 4.5.1995 and the Cashier doubted about the genuinity of the same and upon inspection by him and the Branch Manager, those were found counterfeited and that police was called at the Bank and the said notes , pass book and the deposit voucher duly signed by the appellant were handed over to the police who seized the same under seizure lists in their presence. The learned Counsel appearing on behalf of the appellant submitted that the provisions of Section 167 (5) of the Cr. P.C. was not complied with when cognizance was taken. I do not accept this proposition of law. The provisions of Section 167 sub Section (5) of the Cr. P. C. is applicable at the time when the investigation is continuing. When charge sheet is filed within the time extended by the Court, cognizance can be taken and charge sheet so filed cannot be said to be time barred. This apart, Section 167 (5) of the Code cannot debar a Court to take cognizance of an offence. Cognizance of offence is to be dealt with the provisions laid down in Chapter XXXIV. The case has been filed within the specified period of limitation in view of that Chapter of the Cr. P. C. This apart, I have carefully gone through the impugned judgment and found that the learned Trial Court has dealt with the issue elaborately and expressed the correct position of law. There is no patent illegality and irregularity in the order to that effect. The learned Counsel appearing on behalf of the appellant submits that the seized currency notes were not placed before the Court. As such, he submitted, Court should not have believed the prosecution case. There cannot be any rule of law that "no seized alamat- no conviction" because this itself would be against the principle of law and natural justice. The facts that notes were tendered, seized, found counterfeited have been established beyond doubt. It was sent to the Forensic Laboratory for examination has also been established. It might not have been placed before the Court in course of trial but, that alone cannot be a ground for discarding and/or disbelieving the prosecution case. Therefore, I do not accept the analogy of the learned Counsel appearing for the appellant. 9. THE learned Counsel appearing for the appellant contended that in course of examination of the appellant under Section 313 of the Cr. P.C., no specific question was put to him regarding evidence on seizure of counterfeited currency notes. Therefore, the appellant did not get any opportunity to explain the situation. 10. THIS Court has gone through the recording of examination of the appellant under Section 313 of the Cr. P.C., no specific question was put to him regarding evidence on seizure of counterfeited currency notes. Therefore, the appellant did not get any opportunity to explain the situation. 10. THIS Court has gone through the recording of examination of the appellant under Section 313 of the Cr. P. C. with rapt attention and found that what has been submitted by the learned Counsel for the appellant is not correct state of affairs. The question No.4 shows that he was asked about the deposition of P.W.4 that four numbers of counterfeited notes was given by him to the cash counter for depositing against agricultural term loan No. ATL 30/181 which were found to be fake on inspection. Again, the appellant, in the instant case, cross-examined all the witnesses extensively. He knew the charges framed against him very well. Not only he was aware of the charges framed against him and cross examined the prosecution witnesses extensively, he, from defence side, examined one witness to disprove the prosecution case with a specific alibi to the effect that the case has been lodged against him falsely because of some incident which had taken place between him and one Paritosh Biswas who was Head Clerk of the S.B.I. Karimpur Branch at the relevant time. The learned Court disbelieved the evidence of D.W.1 and this Court also of the view that evidence of D.W.1 proves nothing in favour of the appellant. Therefore, it can safely be said that the appellant was not prejudiced in any manner because of any defect in the manner of examining him under Section 313 of the Cr. P. C. Accordingly, the proposition led by Mr. Safiullah, learned Counsel for the appellant is not accepted. Upon consideration of the judgment impugned and evidence on record, this Court is of considered view that the judgment impugned is not suffering from any infirmity necessitating interference in this appeal. The prosecution case has been established beyond doubt. The fact that the appellant tendered four numbers of counterfeited 500 denomination notes to the Bank cash counter on 4.5.1995 in order to make entries in his loan account has been established by sufficient, satisfactory and trust-worthy evidence. The fact that the said notes were found counterfeited on examination by Expert has also been established. The seizure of the notes, which was tendered by the appellant, has also been proved by reliable and sufficient evidence. The fact that the said notes were found counterfeited on examination by Expert has also been established. The seizure of the notes, which was tendered by the appellant, has also been proved by reliable and sufficient evidence. It is also established that he used the counterfeited notes and thereby also committed the offence under Section 489C of the I.P.C. besides the offence under Section 489C of the I.P.C. The learned Court upon consideration of the entire evidence on record as well as the factual matrix, came to a correct findings which is not required to be interfered with in this appeal. 11. ACCORDINGLY, the appeal fails. The judgment impugned is affirmed as far as conviction of the appellant is concerned. As regards sentence, this Court finds that the prosecution was initiated long back in the year 1995, i.e., about 17 years ago. 12. THE appellant suffered mental agony and uncertainty of his fate in the final analysis for that long period. Considering the fact and circumstances of the case and reasons stated above, the sentence of imprisonment is altered to payment of fine of Rs.10,000/- besides what the learned Court has already imposed in respect of both the offences. Urgent Photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.