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2013 DIGILAW 540 (PAT)

Shree Nath Sharma v. State of Bihar

2013-04-24

ASHWANI KUMAR SINGH

body2013
ORAL JUDGMENT Heard Mr. Jitendra Kumar Pandey, learned counsel for the appellant and Mr. S.A.Ahmad, learned Additional Public Prosecutor for the State. 2. The instant appeal has been preferred against the judgment of conviction dated 12th February, 2013 and the order of sentence dated 20th February, 2013, whereby the Ad hoc Additional Sessions Judge-IV, Buxar has found the appellant guilty for the offences punishable under sections 420, 489B/120B and 489C/120B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/- for the offence under section 420 of the Indian Penal Code and in default to undergo simple imprisonment for a further period of six months, rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- under section 489B/120B of the Indian Penal Code and in default to undergo simple imprisonment for a further period of one year and rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- under section 489C/120B of the Indian Penal Code and in default to undergo simple imprisonment for a further period of one year. However, all the sentences have been ordered to run concurrently. 3. The prosecution case as made out in the written report of the informant, Rakesh Bhatia, the Branch Manger of Bank of India, Buxar Branch, in short, is that on 2nd September, 1999 and 21st September, 1999, the Buxar Branch of Bank of India deposited cash including currency notes of rupees five hundred denomination in the Currency Chest Branch of the Bank of India at Patna. The Currency Chest Branch, Patna transmitted the cash available with it to the Reserve Bank of India, Patna on 10.7.2001, which included the currency notes transmitted by the Buxar Branch of Bank of India. On 21st July, 2001, the Reserve Bank of India, Patna detected eighty notes of rupees five hundred denomination as counterfeit. The slip on the tainted notes and the packet were in custody of the Reserve Bank of India, Patna. The informant stated that he received oral information that the packet containing counterfeit notes was received on 30th August, 1999, and the same bears endorsement as account no.3002 in the writing of Sri A.K.Das (P.W.5), the cashier of the Buxar Branch of Bank of India. The informant stated that he received oral information that the packet containing counterfeit notes was received on 30th August, 1999, and the same bears endorsement as account no.3002 in the writing of Sri A.K.Das (P.W.5), the cashier of the Buxar Branch of Bank of India. On inspection of records of the Branch, it transpired that on 30th August, 1999, Rs.40,000/- was deposited by the appellant in his account bearing account no.3002 and all the notes deposited by him were of Rs.500/- denomination. The informant stated that he received information about the entire facts from the superior officers and as per their direction he was submitting his written report. He has also stated that in this regard, Sri A.K.Singh, a Deputy Superintendent of Police, C.B.I. had also come to make enquiry from him. 4. On the basis of the aforesaid written information, Buxar Town P.S. Case No.193 of 2001 dated 31.8.2001 was registered initially under sections 420 and 489B of the Indian Penal Code. However, subsequently, section 489C and 120B of the Indian Penal Code were also added in the FIR. The police investigated the case and submitted charge-sheet vide charge-sheet no.205 and 200 dated 26.11.2001 under sections 420, 489B, 489C and 120B of the Indian Penal Code. Accordingly, the Chief Judicial Magistrate, Buxar took cognizance of the offence and after complying with the provisions prescribed under section 207 of the Code of Criminal Procedure (for short “Cr.P.C.) committed the case to the court of sessions for trial. The trial court framed charges under sections 420, 489B/120B and 489C/120B of the Indian Penal Code against the appellant to which he pleaded not guilty and claimed to be tried. Accordingly, the trial commenced. 5. In course of trial, the prosecution has examined eleven witnesses, in all, in order to prove the charges leveled against the appellant. Out of them, P.W.1, Ratan Chaubey, P.W.2, Paras Nath Sharma and P.W.4, Vinod Mishra, have been declared hostile by the prosecution. Their evidence is of no help to the prosecution. 6. P.W.3, Haridwar Singh, P.W.10, Umesh Upadhyay, and P.W.11, Basuki Nath Kunwar are formal witnesses. Out of them, P.W.1, Ratan Chaubey, P.W.2, Paras Nath Sharma and P.W.4, Vinod Mishra, have been declared hostile by the prosecution. Their evidence is of no help to the prosecution. 6. P.W.3, Haridwar Singh, P.W.10, Umesh Upadhyay, and P.W.11, Basuki Nath Kunwar are formal witnesses. They have proved the signature of the then Officer-in-charge, Sanjay Kumar Das, on the formal FIR marked as Ext.1, the charge-sheet marked as Ext.3, the signature of the then Officer-in-charge on the charge-sheet marked as Ext.6 and the case diary from paragraphs 1 to 132 in the writing of one Pramod Kumar Mandal marked as Ext.7. 7. P.W.6, Prakash Chandra Mehta and P.W.7, Bal Krishna Pandey, are hearsay witnesses. They have admitted in cross-examination that they have no knowledge about the facts of the case. They also admitted that they are not aware as to whether the appellant deposited notes of Rs.500/- denomination on 30th August, 1999, in the Bank or not. 8. P.W.9, the informant, Rakesh Bhatia, stated in examination-in-chief that on 31st September, 2001, he was posted as Branch Manager in the Buxar Branch of the Bank of India. On that day, an information was received from the Regional Office of the Bank situated at Patna that the Reserve Bank of India, Patna had intimated that eighty notes of rupees five hundred denomination deposited by the Bank of India, Buxar Branch, on 21st September,1999, were found to be counterfeit. It was also informed that the cashier, A.K.Das (P.W.5), had made endorsement on the packet containing tainted notes as account no.3002 and had also put his signature over the slip sent with the packet in question. He stated that he was ordered to institute FIR in this connection and, accordingly, he submitted a written application to the S.H.O., Buxar Town Police Station on 31st August, 2001. He has proved his signature on the written report which has been marked as Ext.4. He has also proved his signatures on the statement of account of the appellant which have been marked as Ext.5A to 5H. In cross-examination he admitted that in case of suspicion about deposit of fake currency note, the same is seized and handed over to the police. He also admitted that neither the name of the depositor nor his signature is taken at the time of deposit of currency notes. In cross-examination he admitted that in case of suspicion about deposit of fake currency note, the same is seized and handed over to the police. He also admitted that neither the name of the depositor nor his signature is taken at the time of deposit of currency notes. He further admitted that it is not possible to produce all the currency notes deposited on the date of occurrence by the customers of the Bank but on perusal of records, the number of currency notes of rupees five hundred denomination deposited in the Branch on that day could be ascertained. He further admitted that the Branch Manager has nothing to do with the deposit of cash in the bank. 9. P.W.5, Arun Kumar Das, the cashier of the Branch who is stated to have received rupees forty thousand from the appellant on 30thAugust, 1999, to be credited in his account has admitted in cross-examination that the details of the currency notes received from the appellant have not been mentioned on the pay-in-slip. He also admitted that on the date of occurrence several persons would have deposited amount in cash in the Bank. He also admitted that the currency notes received from the appellant for deposit in his account had been counted by him and according to him the same were neither forged not counterfeit. 10. After closure of the prosecution case, the trial court examined the appellant under section 313 of the Cr.P.C. The trial court effectively put two questions to the appellant which are as follows: (i)The Branch Manager, Rakesh Bhatia, has alleged that on 2nd September, 1999 and 21st September, 1999, you deposited eighty counterfeit notes of rupees five hundred denomination in your account no.3002. (ii) There is evidence against you that on 21st June, 2001, the Reserve Bank found eighty notes of rupees five hundred denomination to be counterfeit. 11. The appellant’s reply to both the questions put by the trial court was in negative. It would be pertinent to mention here that so far as the second question put to the appellant is concerned, the same does not incriminate the appellant in any manner. Moreover, there is no evidence on record that on 21st June, 2001, the Reserve Bank of India found eighty notes of rupees five hundred denomination to be counterfeit. It would be pertinent to mention here that so far as the second question put to the appellant is concerned, the same does not incriminate the appellant in any manner. Moreover, there is no evidence on record that on 21st June, 2001, the Reserve Bank of India found eighty notes of rupees five hundred denomination to be counterfeit. As a matter of fact, this information was reported to the informant (P.W.9) by someone from the Regional Office of the bank concerned. The identity of the person, who brought it to the notice of the informant, has not been disclosed either in the FIR or in the deposition of P.W.9. Neither any person of the Regional Office of the bank concerned nor any person of the Reserve Bank of India has been examined on behalf of the prosecution in this regard. Thus, the allegation of detection of eighty counterfeit notes of rupees five hundred denomination in the Reserve Bank of India remained merely an allegation without being corroborated by any sort of legal evidence even in the remotest way. Thus, the second question put by the trial court to the appellant under Section 313 Cr.P.C. was wholly irrelevant. 12. So far as the first question put to the appellant by the trial court is concerned, the Branch Manager, Rakesh Bhatia, who has been examined as P.W.9, has not alleged that on 2nd September, 1999 and 21st September, 1999, the appellant deposited any amount in his account. To the contrary, he has stated that on those two dates the Buxar Branch of Bank of India had transmitted the cash available in the Branch to the Currency Chest Branch of the Bank at Patna. As a matter of fact, in the FIR as well as in course of trial, the evidence led against the appellant is that the appellant deposited eighty currency notes of rupees five hundred denomination in his account no.3002 in Buxar Branch of the Bank of India on 30th August, 1999, and, thus, there was neither any allegation nor any evidence that the petitioner had deposited any amount in his account no.3002 on 2nd September, 1999 or 21st September, 1999. 13. 13. It is well settled by now that if a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter by giving an opportunity of explaining it and where no specific question has been put by the trial court on the inculpatory material in the prosecution evidence, it would vitiate the trial. Thus, in the instant appeal, the appellant would be entitled to acquittal on this ground alone that the trial court did not confront him with the inculpatory material in the prosecution evidence. 14. However, instead of recording a judgment of acquittal on the technical ground, I would like to objectively examine the evidence on record in order to find out as to whether the prosecution could prove its case in any manner. 15. As alleged, the appellant deposited rupees forty thousand on 30th August, 1999. However, the FIR was instituted on 31st August, 2001. There is nothing on record to show that the currency notes deposited by the appellant on 30th August, 1999, were counterfeit currency notes. 16. The cashier (P.W.5), who received the currency notes from the appellant, did not find the same to be counterfeit. The notes received by the cashier were handed over to the Head Cashier of the Branch, who kept the same in the chest of the Bank. Subsequently, the currency notes were sent to the Bank of India, Currency Chest Branch, Patna. The Currency Chest Branch, Patna transmitted the currency notes to the Reserve Bank of India, Patna on 10th July, 2001 and the Reserve Bank of India could detect eighty notes of rupees five hundred denomination to be counterfeit on 21st July, 2001. 17. Thus, apparently the currency notes deposited by the appellant on 30th August, 1999, had passed through several hands at different places. The FIR has been instituted after almost two years from the date of deposit of the amount by the appellant. In between the currency notes went into the hands of employees of different banks who are supposed to be experts so far as identifying the genuineness of notes is concerned but none raised any suspicion. It is not a case that the notes received from the appellant were kept in sealed cover. 18. In between the currency notes went into the hands of employees of different banks who are supposed to be experts so far as identifying the genuineness of notes is concerned but none raised any suspicion. It is not a case that the notes received from the appellant were kept in sealed cover. 18. Neither any employee of the Currency Chest Branch, Patna or Regional Office of the Bank of India nor any employee of the Reserve Bank of India has been examined in this case in order to prove the charges. The prosecution has failed to produce the slip and the packet containing the tainted currency notes over which it is alleged that the account number of the appellant and signature of the cashier of the Branch were found. There is also no report of any expert on record to show that any counterfeit currency note alleged to have been transmitted from Buxar Branch of the Bank of India was ever received in the Currency Chest Branch of the Bank at patna or the Reserve Bank of India, Patna. To top it all, even the alleged counterfeit currency notes have not been produced in the court. The two material witnesses i.e., P.W.5, A.K.Das and P.W.9, Rakesh Bhatia, had no personal knowledge regarding the counterfeit currency notes in question. They had not even seen those notes. The cashier, namely, A.K.Das, has categorically admitted that the notes which he received for being deposited in the account of the appellant on 30th August, 1999, were genuine currency notes to the best of his knowledge. 19. Moreover, as noted above, the prosecution has failed to examine the investigating officer of the case. There is no explanation for his non-examination. 20 The trial court has convicted the appellant under section 420, 489B with aid of 120B and 489C with aid of 120B of the Indian Penal Code. From the evidence as discussed, hereinabove, I do not find that the prosecution has brought any material on record to prove the offence as defined under section 420 of the Indian Penal Code. So far as conviction under section 489B and 489C with aid of 120B of the Indian Penal Code is concerned, I must say that the trial court completely failed to apply its mind to the relevant provisions of law under which the appellant was being tried. So far as conviction under section 489B and 489C with aid of 120B of the Indian Penal Code is concerned, I must say that the trial court completely failed to apply its mind to the relevant provisions of law under which the appellant was being tried. So far as the charge under section 120B of the Indian Penal Code is concerned, it requires that two or more persons agreed to do or caused to do an illegal act or an act which is not illegal by illegal means. The conspiracy consists in the agreement of two or more persons. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists i.e., until the conspiratorial agreement is terminated by completion of its performance or abandonment or frustration or, however, it may be. 21. In the present case, neither in the FIR nor in the investigation the prosecution has brought any material to show that two or more persons had agreed to do the illegal act as alleged. Hence, there was no evidence on record on the basis of which a charge under section 120B of the Indian Penal Code could have been framed. Moreover, the appellant could not have been convicted under sections 489B and 489C with aid of 120B of the Indian Penal Code. 22 I further find that on the facts and in the circumstances stated above and on the basis of materials available on the record, by no stretch of imagination, it can be presumed that the alleged fake currency notes, if any, detected in the Reserve Bank of India on 21st June, 2001, were deposited by the appellant on 30th August, 1999, in Buxar Branch of the Bank of India. 23. As I have already recorded, hereinabove, that there is no legal evidence on the basis of which the trial court could have convicted the appellant under sections 489B and 489C with aid of section 120B of the Indian Penal Code but for the sake of argument, even if I assume the entire allegations made in the FIR to be true, a question would arise as to whether the trial court could have recorded the finding of guilt. For examining this question, I would like to quote sections 489B and 489C of the Indian Penal Code which are reproduced here-in-below: “489B. Using as genuine, forged or counterfeit currency notes or bank notes.- Whoever sells to, buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 489C. Possession of forged or counterfeit currency notes or bank notes.- Whoever has in his possession any forged or counterfeit currency-note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.” 24. In order to bring home the charge under section 489B, the prosecution must prove: (i) that the currency note or bank note in question was forged or counterfeit; (ii) that the accused sold to, or bought or received from, some person, trafficked in, or uses as genuine, such currency-note or bank-note; (iii) that when he did so he knew or had reason to believe that it was forged or counterfeit. 25. In order to bring home the charge under section 489C, the prosecution must prove: (i) that the currency note or bank note in question was forged or counterfeit; (ii) that the accused was in possession of it; (iii) that he at the time of his possession knew, or had reason to believe, that it was forged or counterfeit; (iv) that he intended to use it as genuine or that it might be used as genuine. 26. Thus, from a bare reading of the penal provisions of sections 489B and 489C of the Indian Penal Code, it would be apparent that there is a heavy burden on the prosecution to prove that at the time when the appellant had deposited the note he knew that it was forged one. The words “knowing or having reason to believe” used under sections 489B and 489C of the Code are of great importance. The words “knowing or having reason to believe” used under sections 489B and 489C of the Code are of great importance. These words cast a burden upon the prosecution to prove that the circumstances were such that a reasonable man must have felt convinced in his mind that the notes with which he was dealing with were forged one. There is nothing in the FIR or even subsequent thereto to show that the appellant had reason to believe that the notes which he deposited with the bank on 30th August, 1999, were counterfeit. Thus, even if the entire allegations made in the FIR are taken to be true on its face value, the court below would not have been justified in reaching to a finding of guilt in absence of mens rea of offences under sections 489B and 489C of the Indian Penal Code. 27. A dispassionate assessment of evidence is a solemn duty of the court while holding a criminal trial. In the present case, I am constrained to observe that the trial court has failed to appreciate the evidence on record objectively and appropriately. The impugned judgment has been passed in a very casual and cavalier manner. The judgment convicting the appellant is neither plausible nor reasonable. The trial court has proceeded to hold the appellant guilty on certain assumptions and presumptions guided by the doctrine of perversity meaning thereby that it is not only against the weight of evidence but is altogether against the evidence. I am also of the view that the finding of presumption of guilt as recorded by the trial court could not have been recorded by any person of common prudence or behaviour much less a judicial officer. The trial court forgot to remember even the basic tenet of criminal jurisprudence that every accused is presumed to be innocent unless his guilt is proved. The legal condition precedent for application of sections above i.e., “reason to believe” is completely absent, I fail to understand on what legal basis the trial court thought of convicting the appellant. 28. For the reasons discussed, hereinabove, I am of the considered opinion that the charges framed under sections 420, 489B/120B and 489C/120B of the Indian Penal Code against the appellant are not proved. 28. For the reasons discussed, hereinabove, I am of the considered opinion that the charges framed under sections 420, 489B/120B and 489C/120B of the Indian Penal Code against the appellant are not proved. I, therefore, set aside the conviction and sentence passed on the appellant under the aforesaid sections of the Indian Penal Code and acquit him of the said charges. The appeal stands allowed. 29. The appellant is on bail and, as such, he is discharged from the liability of his bail bond.