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2014 DIGILAW 978 (BOM)

Rajendra Baban Chaudhary v. State of Maharashtra

2014-04-15

P.N.DESHMUKH

body2014
JUDGMENT : This Appeal takes exception to the judgment dated 30th September, 2012 passed in Sessions Case No. 69 of 2012 whereby, appellants came to be convicted for offence punishable under Section 489B of Indian Penal Code sentencing to suffer R.I. for five years and pay fine of Rs. 5,000/- in default, to suffer S.I. for three months. The appellants are further convicted for offence punishable under Section 489C of Indian Penal Code and are sentenced to suffer R.I. for three years and pay fine of Rs. 3,000/- in default, to suffer R.I. for two months. 2. Prosecution case, briefly, can be stated as follows : On 26th August, 2012, PW 1 Ayub Kadar Inamdar, complainant, lodged his report vide Exhibit 54 with Sangamner Police Station contending therein that he is owner of a fruit stall situated at Sangamner S.T. Stand. On the day of incident, when he was present at the shop at about 10:00 a.m., the appellants/accused arrived at his shop in a car. One of them, purchased 2 kg. apples from him and gave a note of Rs. 1,000/- in denomination, however, since the complainant suspected said note, he informed the appellant that he is not having change and would arrange for it from another stall owner. On visiting another stall, the complainant informed said fact to that stall owner. In the meantime, police mobile van, which was on patrolling duty, reached on the spot. The complainant disclosed said fact to the police officer who, therefore, took all the appellants to Sangamner City Police Station along with the complainant. In the police station, the police obtained personal search of the appellants and recovered 35 currency notes of Rs. 1,000/- each in denomination, which were seized along with Indica car having registration No.MH-03-AM-1437. 3. On the following day, the police sent the currency notes to the Branch Manager of State Bank of India, Sangamner branch, for its verification. Accordingly, report was received from the Branch Manager confirming the fact that the notes sent for verification, were duplicate notes. Thereafter, on the basis of complaint Exhibit 54, offence came to be registered against the appellants vide Crime No. I-103 of 2012 for offence punishable under Sections 489B, 489C, 420, 120B read with Section 34 of Indian Penal Code and was investigated by PW 6 Salunkhe, P.S.I. 4. Thereafter, on the basis of complaint Exhibit 54, offence came to be registered against the appellants vide Crime No. I-103 of 2012 for offence punishable under Sections 489B, 489C, 420, 120B read with Section 34 of Indian Penal Code and was investigated by PW 6 Salunkhe, P.S.I. 4. It is the case of prosecution that during the course of investigation, appellant No. 1 Rajendra was interrogated and at his instance, 65 other notes of Rs. 1,000/- each in denomination were discovered. All the currency notes seized as such, were further forwarded to Currency Note Press, Nashik Road, Nashik for its verification. The authorities of Currency Note Press, Nashik confirmed that the notes were duplicate. On completion of investigation, charge sheet came to be filed in the Court of learned Judicial Magistrate F.C., Sangamner. In the course of time, the case was committed to the Court of Session for trial. Charge is framed against the appellants showing one accused as absconding. The appellants/accused pleaded not guilty to the charge and claimed to be tried. Learned trial Judge, on considering the evidence on record, convicted the appellants as above, hence, this Appeal. 5. Heard learned counsel Mr. P.K. Phale instructed by advocate Mr. V.R. Gundecha, for appellants and Mr. S.M. Jadhav, learned A.P.P. for respondent State. 6. To effectively evaluate the submissions advanced by learned counsels for both sides, I have scrutinised the evidence with their assistance. 7. PW 1 Ayyub Kadar Inamdar, complainant had not supported the case of prosecution and as such, was declared hostile. He stated that he is owner of Simla Fruit Stall situated at S.T. Sand at Sangamner. According to him, on the day of incident, at about 10:00 a.m. to 10:30 a.m., one customer visited the stall and purchased 2 kg. apples and handed over him currency note of Rs. 1,000/-, which he did not accept as he was not having change and therefore no transaction of sale was complete and the customer went away. The complainant further stated that about half an hour thereafter, he noted that mob had gathered in the S.T. stand premises where one black colour Indica car and a police van was present, however after sometime, he was called in the police station and the police caused him to lodge complaint against the accused. The complainant further stated that about half an hour thereafter, he noted that mob had gathered in the S.T. stand premises where one black colour Indica car and a police van was present, however after sometime, he was called in the police station and the police caused him to lodge complaint against the accused. The complainant has denied the entire case put to him by learned A.P.P. and has specifically denied that on 26th August, 2012 at about 10:00 a.m., the appellants had arrived at his stall in a black colour Indica car and appellant No. 1 purchased 2 kg. apples and gave him one currency note of Rs. 1,000/-. He has denied that he suspected genuineness of the note and therefore, saying that he would bring change from nearby stall owner, went away so as to inform said fact to other stall owners. He has also denied that while he was present at some other stall, police mobile van arrived and he narrated the incident to police. He also denied that the appellants were, thereafter, taken to police station where, personal search of the appellants was obtained and 35 currency notes were further recovered from their person and accordingly, he lodged his report. 8. Evidence of PW 2 Avinash Bhor, panch witness, reveals that he was called by police at Sangamner Police Station where, the appellants were present and were subjected to their personal search in his presence and copanch, Shaikh Mohammad Abdul Latif. He stated that during personal search of appellant No. 1 Rajendra Chaudhari, appellant No. 2 Ravi Mali and appellant No. 3 Amol Mali, 20, 8 and 7 fake currency notes, in the denomination of Rs. 1,000/- each respectively, came to be recovered from their possession which came to be seized under panchnama Exhibit 45. In the cross-examination, he denied that prior to obtaining personal search of the appellants, PSI Salunke said that duplicate currency notes were found with the appellants and therefore, panchnama of said fact was to be drawn. According to him, personal search of all the three appellants was obtained in his presence and panchnama was prepared. Said panch has denied that no personal search of the appellants was obtained in his presence nor the fake currency notes as above, were recovered from the possession of the appellants. According to him, personal search of all the three appellants was obtained in his presence and panchnama was prepared. Said panch has denied that no personal search of the appellants was obtained in his presence nor the fake currency notes as above, were recovered from the possession of the appellants. On bare perusal of evidence of this witness, though the prosecution is said to have established the fact that the Investigating Officer obtained personal search of the appellants in his presence and recovered alleged fake currency notes in the denomination of Rs. 1,000/- each, which were 20, 8 and 7 notes, respectively, from the appellants, it is material to note that the evidence of said independent witness is totally silent about sealing of those notes. Similarly, seizure panchnama Exhibit 45 on record, when perused, is silent about sealing of notes alleged to have been recovered from the person of the appellants. It is further material to note that, admittedly, the Investigating Officer had not seized the currency note of Rs. 1,000/- alleged to be fake, produced by appellant No. 1 Rajendra to the complainant. No any explanation is put forth by the prosecution for not sealing the alleged 20, 8 and 7 fake currency notes of Rs. 1,000/- each in denomination, though, according to the prosecution, they are recovered from the person of the appellants. Similarly, there is no satisfactory explanation put forth for not sealing or even seizing fake currency notes of Rs. 1,000/- which, according to the case of the complainant, is alleged to have been produced by appellant Rajendra for purchasing apples. These fact definitely creates reasonable doubt about seizure of the alleged fake notes from the person of the accused as, it is even no case of prosecution of the Investigating Officer sealing the currency notes while forwarding the same for verification to the Branch Manager of State Bank of India and the authorities of Currency Press Note, Nashik Road, Nashik. In the absence of above material evidence of non-sealing of fake currency notes, possibility of tampering of notes while being sent to the above authorities for its verification, cannot be ruled out. In the absence of above material evidence of non-sealing of fake currency notes, possibility of tampering of notes while being sent to the above authorities for its verification, cannot be ruled out. Above doubt is further substantiated when, according to prosecution, admittedly, the Investigating Officer has not placed on record, along with the charge sheet, the envelopes to establish that the notes alleged to be fake and recovered from the possession of the appellants, were duly sealed which, to some extent, could have been considered in favour of prosecution even in the absence of oral version of panch witnesses. However, prosecution has even not placed on record any of such envelopes wherein, the notes are alleged to be sealed or forwarded therein for its verification. 9. Prosecution to establish its case, had examined PW 4 Balasaheb Navale, who has acted as panch for recovery of 65 fake currency notes of Rs. 1,000/- each in denomination, which are alleged to have been recovered at the instance of appellant No. 1 Rajendra. Though his evidence reveals that on 29th August, 2012, when appellant No. 1 was in the custody of police and was interrogated in his presence, gave his statement to discover 65 such currency notes concealed by him in his house, which came to be recovered as per Exhibit 50 and in spite of PW 4 Balasaheb further stated that in pursuance of the statement of appellant No. 1 Rajendra as above, Investigating Officer has seized 65 fake currency notes, which were found concealed below Kadappa (tile) in his house, evidence of this witness also, when perused, appears to be silent on the aspect of sealing of those notes. The recovery panchnama Exhibit 51 is also silent about sealing of said currency notes. The recovery panchnama Exhibit 51 is also silent about sealing of said currency notes. In that view of the matter and for the reasons already stated above, while considering the case of prosecution with reference to the seizure panchnama of the notes recovered from the person of the appellants, the evidence of PW 4 Babasaheb also does not inspire confidence as, during his evidence, though the prosecution can said to have established, fact of recovery of such notes at the instance of appellant No. 1 Rajendra, in the absence of sealing of such notes and thus, for want of sufficient evidence, prosecution failed to establish that the notes seized at the instance of the appellants were the same forwarded for its verification to the Currency Note Press, Nashik Road, Nashik. In view of the fact and above discussed evidence, I do not find it necessary to consider further cross-examination of PW 4 Balasaheb which is with reference to the location and situation of house of appellant No. 1 Rajendra. 10. In view of the fact that the complainant has not supported the case of prosecution, the only evidence available for the prosecution, so as to bring home guilt of the appellant, is that of PW 2 Avinash, who has acted as panch for obtaining personal search of the appellants and that of PW 4 Balasaheb Navale, who acted as panch for recovery of 65 currency notes at the instance of appellant No. 1 Rajendra. However, for the reasons already stated above, evidence of either of these witnesses is not worthy to be relied upon as, from their evidence, the prosecution has failed to establish that the 35 currency notes which were alleged to be recovered from the appellants during their personal search or 65 currency notes which were alleged to be recovered at the instance of appellant No. 1 Rajendra, are the same notes which are forwarded for verification as there is, admittedly, no sealing of such notes carried out by the Investigation Officer after the alleged recovery. 11. In the background of above facts, evidence of PW 6 Pravin Salunke, P.S.I., when perused, reveals that during the course of investigation in the present crime, he carried out personal search of the appellants in the presence of two panch witnesses and had seized 35 duplicate currency notes of Rs. 11. In the background of above facts, evidence of PW 6 Pravin Salunke, P.S.I., when perused, reveals that during the course of investigation in the present crime, he carried out personal search of the appellants in the presence of two panch witnesses and had seized 35 duplicate currency notes of Rs. 1,000/- each in denomination and seized the same under panchnama Exhibit 4. He has further deposed that said seized currency notes were forwarded by him to the Branch Manager, State Bank of India, Sangamner branch and on verification, said Officer had certified that the currency notes sent, were duplicate. PW 6 Pravin Salunke, P.S.I. has further deposed about appellant No. 1 Rajendra gave his statement to discover 65 fake currency notes concealed by him in his house which, he reduced into writing before the panch vide memorandum statement Exhibit 50 and in pursuance to it, had effected recovery of 65 fake currency notes at the instance of appellant No. 1 Rajendra from his house, which came to be seized under panchnama Exhibit 51. Though according to further evidence of Investigating Officer, said 65 fake currency notes were forwarded to the Currency Note Press, Nashik, to ascertain its genuineness and it was informed vide Exhibit 28 by said authority that the notes forwarded for investigation were fake, prosecution by not leading evidence about sealing of notes alleged to be recovered from the person of the appellants as also by not leading sufficient evidence to establish about sealing of 65 number of notes alleged to be recovered at the instance of appellant No. 1, had failed to establish that whatever notes were alleged to be recovered by the Investigating Agency as above, were the same forwarded for its verification to the Officers of State Bank of India or to the authority of Currency Press Note, Nashik. 12. Evidence of PW 3 Azharkhan Pathan reveals that on 27th August, 2012, in his presence, the Investigating Officer obtained search of black Indica car bearing registration No. MH-03-AM-1437 as per panchnama Exhibit 48 and apart from the car, some documents, mobile handset, passbook and A.T.M. cards were seized. Said seizure do not substantiate the case of prosecution in any way, more particularly, in view of evidence of PW 6 Salunke, P.S.I. wherein, he has admitted that the currency notes of Rs. Said seizure do not substantiate the case of prosecution in any way, more particularly, in view of evidence of PW 6 Salunke, P.S.I. wherein, he has admitted that the currency notes of Rs. 1,000/- which was alleged to be used by the appellants at the time of purchasing apples could not be traced by him during the course of investigation. In the absence of above material evidence which, if brought on record, could have been duly considered in favour of the prosecution, the prosecution cannot said to have established charges levelled against the appellants beyond reasonable doubt. Moreover, the report Exhibit 54 reveals that the same came to be lodged by PW 1 Ayyub on 26th August, 2012, which is further found substantiated by the evidence of PW 6 Salunke, Investigating Officer wherein, he has stated that the complainant Ayyub lodged his complaint before him on 26th August, 2012 against the appellants, which was reduced into writing and admits its contents to be true and correct and has, accordingly, proved said complaint on record at Exhibit 54, above evidence of the Investigating Officer is contracted by himself in the cross-examination when he was confronted with portion A of spot panchnama Exhibit 46 wherein, as he has admitted the contents of portion A to be true. On perusal of contents of portion A Exhibit 46 on record, the incident is alleged to have been taken place on 28th August, 2012 while, according to Exhibit 54 as well as the evidence of Investigating Officer Salunke, the incident in question has occurred on 26th August, 2012. Prosecution has not given any explanation on this aspect, more particularly, when the Investigating Officer, as stated earlier, has contradicted his own evidence when he has admitted the contents of portion A as above. 13. In the light of the case of prosecution and its failure to establish on record beyond reasonable doubt, that the fake currency notes alleged to be recovered from the person of the appellants as well as at the instance of appellant No. 1 Rajendra, I find much substance when it is suggested to PW 6 Salunke that 35 duplicate notes of Rs. 1,000/- each in denomination were not found in possession of the appellants nor recovery of such notes was effected during their personal search. 1,000/- each in denomination were not found in possession of the appellants nor recovery of such notes was effected during their personal search. Similarly, I find no substance in his evidence, when he has denied that after seizure of 35 such notes from the person of the appellants, same were properly sealed and affixed labels bearing signatures of panchas on it. No such reference find place in the seizure panchnama Exhibit 45, as already stated above, nor the Investigating Officer has placed on record the envelopes wherein, said currency notes were kept and sealed before forwarding the Branch Manager of State Bank of India, Sangamner Branch, for opinion. 14. On perusal of the statements of the appellants recorded by learned trial Judge under the provisions of Section 313 of the Code of Criminal Procedure (Cr. P.C.), it reveals that though the questions were put to the appellants with reference to the alleged recovery of fake currency notes from their possession, for want of evidence, no any question with reference to sealing of said notes, appears to have been put to them. In the circumstances, it appears that as there was no incriminating evidence against the appellants, since not led by the prosecution, to establish that the alleged fake currency notes recovered from the person of the appellants and at the instance of appellant No. 1 from his house, were duly sealed when said notes came to be seized. No such question were put to the appellants. 15. Similarly, there is no evidence on record to establish that the notes so seized, were forwarded for its verification, in sealed condition, to the Branch Manager, State Bank of India or to the Currency Note Press, Nashik. 16. The Apex Court, in the catena of judgments, reiterated the circumstances which were not put to the accused in his examination under Section 313 of Cr. P.C. cannot be used against him and have to be excluded from consideration. In the appeal in hand, however, it reveals that, in fact, since there was no incriminating evidence on record on the aspect of sealing of alleged fake currency notes, no such question was put to either of the appellants and as such, there is no necessity to seek explanation from the accused. As otherwise, it is duty of the Court to examine the accused and seek his explanation of incrementing circumstances that has surfaced against him. As otherwise, it is duty of the Court to examine the accused and seek his explanation of incrementing circumstances that has surfaced against him. Section 313 of Cr. P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As such, the Courts are under a legal obligation to put the incriminating circumstances before the accused and solicit his response. The provisions under Section 313 of Cr. P. C. are mandatory in nature and casts duty on the Court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. However, as stated earlier, since there appears no incriminating material on the material aspect as discussed above establishing involvement of the appellants for having found in possession of fake currency notes or found circulated fake currency notes. No such questions are put to the appellants. Likewise, for want of sufficient evidence, even no question is put to the appellants in order to find out whether, the appellants knew that the notes were fake and they had knowledge of said fact which are alleged to have been recovered from them. Prosecution has not led any evidence to prove the nature of notes. The appeal, as such, is liable to be allowed on this count alone. 17. Learned counsel for the appellants, with reference to the charges levelled against the appellants for offence punishable under Sections 489B and 489C of Indian Penal Code and available evidence as discussed above, has, thus, relied upon the decision in the case of M. Mammutti v. State of Karnataka, AIR 1979 SC 1705 . In that case, the appellant admittedly was found in possession of two counterfeit notes of Rs. 2/- in denomination and had handed over it to his friend to purchase ticket for circus show. The ticket clerk on seeing the note got suspicious and informed the police. On obtaining personal search of the appellant, 99 numbers of two rupees notes were recovered. The appellant under the statement under Section 342 of Cr. P.C. explained that two days ago, he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs. On obtaining personal search of the appellant, 99 numbers of two rupees notes were recovered. The appellant under the statement under Section 342 of Cr. P.C. explained that two days ago, he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs. 390/- and that currency note was given to him by the purchaser. He also stated that he was not aware that the currency note given to him was counterfeit and he came to know about it for the first time, when he was interrogated by the police. There was no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note nor was any such question put to the accused under Section 342 of Cr. P.C. In the light of above, the Apex Court observed that, If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In the circumstances, the Apex Court has set aside the conviction and sentence. 18. Learned counsel for the appellants has further relied upon the decision in the case of Umashankar v. State of Chhattisgarh, AIR 2001 SC 3074 , wherein, construing the provisions of Sections 489B and 489C, it is noted that bare perusal of the provisions extracted above, shows that mens rea of offences under Sections 489B and 489C is, knowing or having reason to believe the currency notes or bank-notes are forged or counterfeit. Without the aforesaid 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 489B of Indian Penal Code. Without the aforesaid 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 489B of Indian Penal Code. It is further noted that 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 489C in the absence of the mens rea, as noted above. 19. In the appeal in hand, there is absolutely no evidence to establish the ingredients of above provisions levelled against the appellants. Having construed the facts involved as above, I, therefore, find that no conviction against the appellants can sustain for want of reliable, convincing evidence against them. 20. In the result, (a) Criminal Appeal is allowed; (b) The conviction and sentence imposed upon the appellants by learned Addl. Sessions Judge, Sangamner, in Sessions Case No. 69 of 2012, for offence punishable under Sections 489B and 489C of Indian Penal Code, is quashed and set aside. Appellants are acquitted of the said offences; (c) The appellants, who are informed to be in jail, be released forthwith, if not required in any other case; (d) Fine amount, if paid, be refunded. Appeal allowed.