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2013 DIGILAW 255 (UTT)

Jyut Chaudhary v. State of Uttarakhand

2013-05-13

ALOK SINGH

body2013
Judgment Alok Singh, J. 1. Present appeal is directed against the judgment and order dated 31.05.2010 passed by Sessions Judge, Haridwar, in Sessions Trial No. 128 of 2010 whereby appellants herein were held guilty for the offences punishable under Section 489-B and 489-C IPC and were sentenced to undergo rigorous imprisonment for the period of 05 years and to pay fine of Rs. 5,000/- each and in default in making payment of fine, to undergo additional imprisonment of 03 months for the offence punishable under Section 489-B; to undergo rigorous imprisonment for the period of 05 years and to pay fine of Rs. 5,000/- each and in default of making payment of fine, to undergo additional imprisonment of 03 months for the offence punishable under Section 489-C IPC. 2. As per the prosecution story, S.H.O. Kankhal, Haridwar Naveen Chandra Semwal (PW1) along with ASI Surendra Singh Bisht, SI Bhawani Shankar Pant (PW2), Constable Ajay, Constable Anil and Constable Vinod left the Thana at about 11:30 p.m. on 01.10.2009 for patrolling/vehicle checking duty; at about 02:00 a.m. appellants were seen coming on foot; seeing the police party, appellants started behaving abnormally and started walking fast; appellants were apprehended near the barrier and were asked about their identities; appellants disclosed their respective names and addresses; search was conducted on the person of the appellants; on the search from appellant no.1, 48 currency notes of Rs. 500/- domain were recovered; from appellant no.2, 44 currency notes of Rs. 500/- domain were recovered and from appellant no.3, 44 currency notes of Rs. 500/- domain, 15 notes of Rs. 100/- domain, 05 notes of Rs. 50/- domain, 03 notes of Rs. 20/- domain and 19 notes of Rs. 10 domain were recovered; having seen carefully all the currency notes so recovered from the possession of the appellants, same were found to be fictitious and counterfeit; appellants started pleadings before the police and told the police that they were the poor persons and they were able to feed their respective families out of earned income; currency notes so recovered were kept under the seal and signatures of PW1 and thereafter FIR was lodged at Thana. 3. Investigation was handed over to SI Rajendra Singh Aswal (PW4). After investigation, charge-sheet was submitted against the appellants for the offences punishable under Sections 489-B and 489-C IPC. 3. Investigation was handed over to SI Rajendra Singh Aswal (PW4). After investigation, charge-sheet was submitted against the appellants for the offences punishable under Sections 489-B and 489-C IPC. After committal of the trial, charges were framed against the appellants for the offences punishable under Sections 489-B and 489-C IPC. All the appellants denied the charges and claimed trial. 4. To prove the prosecution case, Naveen Chandra Semwal, S.H.O. Kankhal (PW1), Bhawani Shankar Pant (PW2), Manoj Bhandari (PW3) and Sub-Inspector Rajendra Singh Aswal (PW4) were examined thereafter statements of all the appellants were recorded under Section 313 of the Code of Criminal Procedure. Having perused the records learned Sessions Judge was pleased to pass the judgment and order impugned in the present appeal. 5. I have heard Mr. Bhuvanesh Joshi, learned counsel for the appellants and Mr. P.S. Danu, learned Brief Holder for the State and have carefully perused the record. 6. All the currency notes, so recovered form the appellants, were sent to Forensic Science Laboratory, Dehradun for examination. As per the report of Forensic Science Laboratory, Dehradun all currency notes of Rs. 500/- domain were found to be forged and counterfeit, however, others were found to be genuine. 7. Order-sheet dated 04.05.2010 and 26.05.2010 reveals that counsel for the appellants/accused was not present before the court, therefore, learned trial court permitted the appellants/accused to cross-examine prosecution witnesses in the absence of their advocate. Appellants are unskilled labourers and totally illiterate, therefore, could give only suggestion to the prosecution witnesses, during their cross-examination, to the effect that they were poor labourers and they were going to Uttarkashi for labour work, however, police falsely implicated them by showing false recovery from them. 8. Action of the learned trial court asking the totally illiterate accused to cross-examine the prosecution witnesses themselves cannot be appreciated. Learned trial court ought to have provided them Amicus Curiae, if their advocate failed to appear before the Court. In the firm opinion of this Court, grave prejudice was caused to the appellants. 9. PW1 Naveen Chandra Semwal, (PW2) Bhawani Shankar Pant, stated that when appellants were apprehended and currency notes were recovered from them, appellants told the police party that they were poor labourers and they feed their respective families from income earned by them. In the firm opinion of this Court, grave prejudice was caused to the appellants. 9. PW1 Naveen Chandra Semwal, (PW2) Bhawani Shankar Pant, stated that when appellants were apprehended and currency notes were recovered from them, appellants told the police party that they were poor labourers and they feed their respective families from income earned by them. Neither Arresting Officer (PW1), nor SI Bhawani Shankar Pant (PW2) nor Investigating Officer (PW4) stated that appellants were asked as to where from they could get forged/counterfeit currency notes. 10. In the present case, I have carefully examined the statements of PW1, PW2 and PW4, none of them have stated that appellants were having full knowledge that they were carrying forged/counterfeit currency notes nor it has been proved that appellants were having every reason to know that currency notes in their possession were forged and counterfeit. As observed herein above appellants are totally illiterate, unskilled labourers, therefore, prosecution by not producing cogent evidence, failed to prove that appellants were either having knowledge or were having every reason to know that they were carrying forged and counterfeit notes. Mere possession, without any mens ria or in other words without knowledge and reason to believe that currency notes are forged, would not attract penal provision of Section 489-B and 489-C IPC. 11. Hon’ble Apex Court in the case of Umashanker vs. State of Chhattisgarh reported in 2001 SCC, 3074 in paragraph no.8 held as under: “A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489-C is, “knowing or having reason to believe the currency-notes or bank-notes are forged or counter-feit”. Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking, in or using as genuine forged or counterfeit currency-notes or bank-notes is not enough to constitute offence under Section 489-B of IPC. So also possessing or even intending to use any forged or counterfeit currency-notes or bank-notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however completely missed this aspect. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that currency note alleged to have been given to PW4, was fake “presumed” such a mens rea. On the date of the incident the appellant was said to be 18 years old student. On the facts of this case the presumption drawn by the trial Court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-notes being fake or counterfeit was put to the appellant in his examination under Section 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Section 489-B and 489-C of I.P.C. and acquit him of the said charges [See : M. Mammutti v. State of Karnataka : AIR 1979 SC 1705 ]. 12. As per the dictum of the paragraph in the case of Umashanker vs. State of Chhattisgarh reported in 2001 SCC, 3074 (Supra), to make out offences punishable under Section 489-B and 489-C, prosecution must prove that accused was having full knowledge or reasons to believe that currency notes in his possession are in fact forged or counterfeit notes; mere possession of the counterfeit currency notes in the absence of mens ria is no offence punishable under Section 489-B and 489-C. 13. There is another aspect of the matter i.e. PW4 Investigating Officer, Sub-Inspector Rajendra Singh Aswal stated that on 06.11.2009, currency notes so recovered from the possession of the appellants, were sent to the Forensic Science Laboratory, Dehradun for examination. However, paper no.13, the letter of the Director, Forensic Science Laboratory, Dehradun dated 21.12.2009 reveals that currency notes were received by the Forensic Science Laboratory, Dehradun on 21.12.2009. There is nothing on record to explain that if currency notes were sent for the examination on 06.11.2009 as to why same were not got delivered at Forensic Science Laboratory, Dehradun at the earliest and what was the location of currency notes from 06.11.2009 to 21.11.2009. There is nothing on record to explain that if currency notes were sent for the examination on 06.11.2009 as to why same were not got delivered at Forensic Science Laboratory, Dehradun at the earliest and what was the location of currency notes from 06.11.2009 to 21.11.2009. Moreover, paper No. 9/3 ‘Kha’ whereby currency notes allegedly sent to the Forensic Science Laboratory, Dehradun under the signature of Superintendent of Police, Haridwar does not contain any date, as to when currency notes were sent. Paper book no. 9/3 ‘Kha’ available on the lower court record reveals that currency notes, so recovered, were sent through Constable Sanjeet; Constable Sanjeet has not been produced in the witness box to state that when did he receive the currency notes from the Malkhana and as to when, he actually delivered the same to the Forensic Science Laboratory, Dehradun and meanwhile counterfeit currency notes remained in his possession and custody untouched and there was no tempering with the seal cover, seal and currency notes. 14. In the absence of aforesaid very important link evidence, it cannot be said that prosecution was able to prove its case beyond reasonable doubt and currency notes, so recovered, remained, in fact, under the seal and custody of appropriate person, before the same could be delivered to Forensic Science Laboratory, Dehradun. 15. In view of the discussion made herein before, impugned judgment and order does not sustain in the eyes of law. Consequently appeal is allowed. Impugned judgment and order passed by learned Sessions Judge, Haridwar in Sessions Trial No. 128 of 2010 is hereby set aside. Appellants are acquitted from the charges levelled against them. Appellants are in jail they may be released forthwith, if not wanted in any other case. 16. Let a copy of this judgment along with the lower court record be sent back to the lower court for information and necessary action forthwith.