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2012 DIGILAW 670 (CAL)

Baishakhi Sheikh v. STATE OF WEST BENGAL

2012-07-23

KANCHAN CHAKRABORTY

body2012
JUDGMENT Kanchan Chakraborty, J: 1. This appeal is directed against a judgement and order dated 28/29th June, 2011 passed by the learned Additional Sessions Judge, 4th Court at Nadia in Sessions Trial no. 4(5) of 2010 thereby convicting the appellants for committing offence punishable under Section 498C of the Indian Penal Code and sentencing them to suffer R.I. for 5 years with fine of Rs. 10,000/- each. 2. The judgement has been assailed, mainly, on the following grounds: a) that no independent witness to the alleged seizure of counterfeit currency notes supported the prosecution case; b) that the learned Court failed to appreciate the evidence on record in its true and proper perspective and overlooked discrepancies in the statements of the witnesses on material points; c) that the witnesses examined on behalf of the prosecution were neither interrogated by the Investigation Officer nor their statement under Section 161 of the Cr.P.C. was recorded and; d) that simple possession of counterfeit notes does not necessarily attract the offence under Section 489-C IPC when mesne rea is found absent; 3. Tarak Nath Karati, Inspector in charge, Nabadwip Police station received one source information that the owner of “Anamika Bastralayay”, situated near Idilpur Rail Gate at Nabadwip Station Road, was in possession of huge quantity of counterfeit currency notes and some outsiders contacted him for purchasing those notes with an intention to pass the notes as genuine in open market. Making an entry in the general diary on 25.10.2009, Mr. Karati along with other officials appeared at “Anamika Bastraloy” at about 12.10 hours. On reaching there, they found the owner of Anamika Bastralaya Shyam Sundar Mahato and two other persons were trying to escape seeing the police party. Mr. Karati and his officials, however, able to apprehend them and on searching of their person, currency notes to the tune of Rs. 2,00,200/- counterfeit were recovered from their possession in presence of local people including Pradip Biswas and Uttam Debnath. Some genuine currency notes were also recovered from the possession of Mahato. All the counterfeit and genuine currency notes were seized under three seizure lists in presence of witnesses and those were put in separate packets which were leveled and sealed in presence of witnesses. Some genuine currency notes were also recovered from the possession of Mahato. All the counterfeit and genuine currency notes were seized under three seizure lists in presence of witnesses and those were put in separate packets which were leveled and sealed in presence of witnesses. Shyam Sundar Mahato and two other persons who were apprehended and from whose possession the counterfeit notes were recovered failed to produce any valid document or give satisfactory answer for their possession over the counterfeit notes. They were arrested and Mr. Karati lodged a suo moto F.I.R. against them on the basis of which the Nabadwip police station case no. 239 dated 25.10.2009 was registered against Shyam Sundar Mahato and these two appellants Baishaki Sk. and Mithu Sheikh amongst others. The case was investigated into and finally ended in a charge-sheet under Section 489B and 489C/34 of IPC. As the appellants pleaded not guilty to the charges so framed against them, the trial commenced. The learned Trial Court recorded evidence of 21 witnesses examined on behalf of the prosecution. The F.I.R, Seizure lists and copy of G.D. entry, report of expert, sketch map of place of occurrence etc. were admitted into evidence and marked exhibit on behalf of the prosecution. The alleged seized counterfeit currency notes were also produced in Court, admitted into evidence and marked material ex. i, ii, iii, iv collectively. No witness was examined on behalf of the appellant in course of trial. Upon consideration of the evidence oral and documentary, the learned Trial Court came to a conclusion that the prosecution brought home the charge under Section 489C of IPC against these two appellants and accordingly recorded their conviction and sentence which is impugned in this appeal on the grounds already stated. 4. Kazi Safiullah, learned Advocate on behalf of the appellants contended that no independent witness supported the prosecution case of seizure of counterfeit currency notes from the possession of the appellants. Pradip Biswas and Uttam Debnath, the P.W. 7 and P.W. 6 were declared hostile by the prosecution. They were independent witnesses of the seizure according to the prosecution. P.W. 6, Uttam Debnath stated that he signed the seizure at the request of the police. He had no knowledge whether counterfeit notes were seized by police from the shop of Shyam Sundar Mahato. They were independent witnesses of the seizure according to the prosecution. P.W. 6, Uttam Debnath stated that he signed the seizure at the request of the police. He had no knowledge whether counterfeit notes were seized by police from the shop of Shyam Sundar Mahato. P.W. 7 Pradip Biswas stated that he put his signature on some lebels and three seizure lists as per request of police officer. He denied that he witnessed the seizure. Mr. Safiullah contended that when the independent witnesses like P.W. 6 and P.W. 7 did not support the prosecution case of seizure of counterfeit note from the possession of the appellants, the learned Court was absolutely incorrect to rely on the official witnesses only and record conviction against the appellants. 5. I have carefully gone through the judgement impugned and the evidence of P.W. 6 and P.W. 7. It is fact that P.W. 6 and P.W. 7 denied that the seizure of counterfeit notes from the possession of appellants was done in their presence. But, they could not deny their signatures on the seizure lists and the lebels. They identified the signatures which were admitted into evidence and marked Exhibit. The P.W. 6 and P.W. 7 were having shops on the same road were accused Shyam Sundar Mahato was running his business under the name and style “Anamika Bastralaya”. It is not expected that the P.W. 6 and P.W. 7 go against their fellow business man. The learned Trial Court taken this fact into consideration. Learned Court observed that there was no reason to disbelieve and discard the evidence of police officials who supported the prosecution case of seizure. Beside the evidence of P.W. 1, the P.W. 3, P.W. 10, P.W. 11, P.W. 12, P.W. 13, P.W. 16, P.W. 17, P.W. 18, P.W. 19 and P.W. 20 was found reliable, consistent and trustworthy to the learned Trial Court. Learned Trial Court observed that simply because these witnesses are belonging to the police department and members of raid party, their evidence cannot be disbelieved. This Court finds no incorrectness in such an observation made by the learned Trial Court. There is no rule of law that evidence of police official is to be discarded simply because they are belonging to police department if animosity is not otherwise proved. This Court finds no incorrectness in such an observation made by the learned Trial Court. There is no rule of law that evidence of police official is to be discarded simply because they are belonging to police department if animosity is not otherwise proved. There is nothing in the evidence which would suggest that those police officials made false statement against the appellants. They had no axe to grind against the appellants. Huge quantity of counterfeit notes was recovered. The police official had no reason to plant those huge quantities of currency notes in order to implicate the appellants falsely. They could have planted a few numbers of such notes and that could have served any such purpose of them. It is true that besides P.W. 6 and P.W. 7, other private witnesses also did not support the prosecution case hole heatedly. The P.W. 14 is tea stall owner. He could not deny that there was a hue and cry in front of Anamika Bastralaya and he signed on a paper as requested by the police officer. He also stated that he saw police to arrest one person from that place. In his cross-examination he stated he had no idea why he put his signature on the papers. Presence of P.W. 14 at the P.O. was approved by the P.W. 15 who is a Hawker at Nabadwip Bus stand. He accepted the fact that police came to the bus stand and there was a gathering and he put his signature on the seizure list and lebel. He stated that P.W. 14 was also present at that place when he went there seeing police officials. These two witnesses confirmed that police official had been to Anamika Bastralaya on 25.10.2009 and police arrested one person from that shop. They also could not deny that they signed the seizure list and lebel. I find that the learned Trial Court discussed evidence of all these witnesses elaborately and came to a finding that the prosecution established the seizure of counterfeit notes from the possession of the appellant by sufficient evidence. I find myself in agreement with the view taken by the learned trial Court. It is reiterated that all the private witnesses including the P.W. 6,7,14 and 15 are belonging to the business community in the same area where accused Shyam Sundar Mahato was running his business. I find myself in agreement with the view taken by the learned trial Court. It is reiterated that all the private witnesses including the P.W. 6,7,14 and 15 are belonging to the business community in the same area where accused Shyam Sundar Mahato was running his business. Therefore, they had to take side of their fellow business man and denied the prosecution case of seizure which was neither unexpected nor unnatural. The officers of the police department who witnessed the incident and members of the raid party have categorically and specifically supported the prosecution case of seizure of counterfeit notes from the possession of Shyam Sundar Mahato and these two appellants. There is no reason for the Trial Court to disbelieve and discard their evidence. Therefore, I do not find any substance in the submission of Mr. Suffiullha. 6. It is submitted by Kaji Suffiullha that the witnesses examined as prosecution witnesses were not interrogated by the investigating officer and their statement was not recorded under Section 161 of the Cr.P.C. This fact carries a little impact on the prosecution case. It is categorically stated that the witnesses so examined belonging to police department were members of the raid party. They put their signatures on the seizure lists, lebels and other papers. They witnessed the entire incident. They deposed in Court and were cross-examined. Therefore, non recording of their statement under Section 161 Cr.P.C. does not necessarily make the prosecution case dis believable. 7. As contended by Kaji Sufiullah, simple possession of counterfeit notes does not attract the offence under Section 489 C of IPC. It is trite law that “knowing or having reason to believe” being essential to constitute the offence under Section 489B and 489C, prosecution must prove mesne rea on the part of the accused. “Knowledge or having reason to believe” as appeared in the language of Section 489C of the IPC makes it obligatory on the prosecution to establish mesne rea on the part of the accused persons. Prosecution is saddle with burden to establish that the accused had knowledge or reason to believe that the currency note he was possessing was counterfeit. In the decision referred to by Mr. Safiulla, Uma Sankar Vs. Prosecution is saddle with burden to establish that the accused had knowledge or reason to believe that the currency note he was possessing was counterfeit. In the decision referred to by Mr. Safiulla, Uma Sankar Vs. State of Charishgar reported in 2002 SCC (Cri) 758, the Hon’ble Apex Court held that a perusal of the provision of Section 489B and 489C IPC shows that mesne rea of the offences is “knowing or having reason to believe the currency notes or bank notes are forced or counterfeit”. Without aforementioned mesne rea, selling, buying or receiving from another person or other wise trafficking in or using as genuine force or counterfeit currency notes and bank notes, is not enough to constitute the offence under Section 489 B IPC. So, also possessing or even intending to use any counterfeit currency notes or bank notes is not sufficient to make out a case under Section 489C in absence of mesne rea, noted above. 8. In the instant case, huge quantity of counterfeit currency notes were recovered from the possession of Shyam Sundar Mahato and these two appellants. They were caught by police personal red handed while possessing those fake notes after being unsuccessful to escape. They tried to escape seeing police officials. This particular conduct of the appellants disclosed their guilty mind. They were not in possession of small quantity of counterfeit notes. It was huge in quantity. Had they no knowledge or reason to believe that the currency notes they were possessing were counterfeit, they would not have made effort to escape seeing police official. It is not clear whether the appellants brought the notes in the shop of shyam Sundar Mahato or Shyam Sundar Mahato was trying to sell those notes to the appellants. But, it can not be denied that all of them were having knowledge that they were dealing with counterfeit currency notes obviously for the purpose of passing those notes as genuine in the open market. This mesne rea on the part of the appellants being a mental factor, can only be deduced from the facts and circumstances of the case and conduct of the appellant. The factors such as huge quantity notes were found in their possession, that they were found together and that they tried to escape seeing police, altogether exposed their guilty mind as well as mesne rea. 9. The factors such as huge quantity notes were found in their possession, that they were found together and that they tried to escape seeing police, altogether exposed their guilty mind as well as mesne rea. 9. The learned Trial Court taken this factor also into consideration and recorded the conviction and sentence of the appellant. The expert identified the currency notes sent to him for examination and given report to the effect that the notes sent by the I.O. to him were counterfeit. As regards the genuine notes which was seized by the police is concerned, it can be stated that those were seized from Shyam Sundar Mahato who allegedly received that genuine money by selling counterfeit currency notes. That part of prosecution case was not seriously challenged by the defense. Therefore, seizing some genuine notes together with huge quantity of fake currency notes does not necessarily destroy the prosecution case. 10. The decision of Hon’ble Court Gobinda Raju Vs. State reported in (2012) 2 SCC (Cri) 533 referred to by Kaji Safiullah supports the prosecution case on principal as laid down therein. Factually, the case before the Hon’ble Court and this court are different. It is not a case wherein the police official examined by the prosecution were interested in success of the case was motivated by overzealousness to an extent of their involving innocent people. Presumption that a person acts honestly applies as much in favour of a police officer as in respect of other person and it is not proper to distrust and suspect him without there being good grounds therefor. 11. In the instant case, the seized currency notes, the cover bearing signatures of the witnesses, the seizure lists in respect of currency notes seized from each accused persons bearing signatures of the witnesses were admitted into evidence and marked exhibit without any objection. The witnesses identified the signatures and currency notes. The expert also identified the currency notes and mentioned the numbers of the notes categorically in the report. There was no room of doubt as to the genuinity of the prosecution case. 12. In view of the discussion above, that the judgement impugned is not required to be upset. 13. The appeal, accordingly, fails. 14. The judgement impugned is affirmed and the learned Trial Court is directed to give effect to the sentence imposed without delay.