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2015 DIGILAW 294 (GAU)

Rousenara Begum & Ors. v. State of Assam

2015-03-11

B.K.SHARMA

body2015
1. This appeal is directed against the judgment dated 5.11.2013 of the learned Addl. Sessions Judge, Dibrugarh in Sessions Case No. 104/2009 convicting the accused appellants under section 489C, IPC and sentencing each one of them to undergo SI for seven years with fine of Rs. 5,000 and in default, further SI for another six months. 2. On the basis of the FIR that was lodged with the Dibrugarh Police Station on 20.11.2004 by one Sri Anil Chutia, SI of Police (PW2) to the effect that on 20.11.2004 at about 3 p.m. acting on a tip off he apprehended the accused appellants, who allegedly carried forged currency notes. They were so apprehended while were sitting in the canteen of the court premises at Dibrugarh. On search being carried out, suspected Fake Indian Currency Notes amounting to Rs. 10,200 were recovered from the possession of the accused appellant No. 1, who was accompanied by accused appellant No. 3. Later on, when the house of the accused appellant No. 2 was searched, further fake currency note amounting to Rs. 16,000 were recovered. A case was registered under section 489(B)/489)/489D, IPC. In due course, investigation was carried out and completed, the Investigating Officer submitted charge sheet under the aforesaid Section against the accused persons and one Ainul Hoque and another Nurul Islam, who were shown absconder. Nurul was discharged vide order dated 10.1.2006 and the case was splitted on 17.4.2009 and the three accused appellants were committed vide order dated 23.7.2009 to the court of the learned Sessions Judge, Dibrugarh. 3. In due course, formal charge was framed against the accused appellants under the aforesaid sections and on being explained, they pleaded not guilty of the same and claimed to be tried. Thereafter trial commenced. During trial, prosecution examined 8 witnesses. Raising the following points for determination, the learned trial court having convicted the accused appellants as aforesaid, they preferred the instant appeal: “(i) Whether the accused persons trafficked and used the forged counterfeit currency or Bank notes knowing the same to be forged or counterfeit, as alleged? (ii) Whether the accused persons possessed counterfeit currency notes or Bank notes amounting to Rs. 1,200 knowing the same to be forged or counterfeit one and intended to use the same Bank notes as genuine as alleged? (ii) Whether the accused persons possessed counterfeit currency notes or Bank notes amounting to Rs. 1,200 knowing the same to be forged or counterfeit one and intended to use the same Bank notes as genuine as alleged? (iii) Whether the accused persons were found possessing machinery, instruments and materials for the purpose of making the process of forged notes knowing it that the same were intended to be used, for gorging currency or Bank notes as alleged? 4. I have heard Mr. G.N. Shaewalla, learned senior counsel, assisted by Ms. R. Jain, learned counsel for the accused appellants. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 5. Mr. Sahewalla, learned senior counsel for the accused appellants submits that having regard to the contradictions inherent in the evidences adduced by the prosecution, the impugned judgment of conviction is liable to be interfered with. According to him, all the essential ingredients relating to constitution of an offence punishable under section 489(C) being not present, learned trial court ought not to have convicted the accused appellants. In this connection has placed reliance on the two decisions reported in Umashanker v. State of Chhattishgarh, (2001.) 9 SCC 642 and Pannalal Gupta v. State of Sikkim, 2010 (4) GIT (SHC) 35. 6. On the other hand, Mr. Gogoi, learned Addl. P.P., Assam referring to the evidence on record submits that when the fake currency notes were recovered from the conscious possession of the accused appellant and the prosecution having established the same in its evidence, no interfere is warranted in respect of the impugned judgment of conviction. 6.1 I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the entire materials on record. 7. PW1 is a police constable, who had accompanied the PW2, when search was carried out in the canteen located in the court premises. She in her deposition stated that the incident took place about 2 years back. At that point of time, she was attached to S.P. Office, Dibrugarh. On request of the police officer, she had gone to the canteen of one Sri Talukdar situated in the court campus. Going there she could learn that some bank forged notes were detected in the canteen. She could see the accused persons inside. At that point of time, she was attached to S.P. Office, Dibrugarh. On request of the police officer, she had gone to the canteen of one Sri Talukdar situated in the court campus. Going there she could learn that some bank forged notes were detected in the canteen. She could see the accused persons inside. In cross-examination, she stated that the banks notes were recovered from the persons who were sitting in front of two other persons. She further stated that the persons from whom fake currency notes were recovered were brought to the SP Office, Dibrugarh. Out of the three accused persons, one fled away from the office of the SP Office, Dibrugarh. According to her, fake notes were recovered from the person who had fled away. 8. PW2 is the informant, who in his deposition stated that on being entrusted to conduct the preliminary investigation relating to possession of fake currency notes by a woman and another person inside the canteen of the court premises, he after making the GD Entry, rushed to the canteen. PW1 also accompanied him. Search being made in presence of the witnesses, 8 numbers of 500 rupee denomination, 6 numbers of 100 rupee denomination and 2 numbers of 50 rupee denomination notes were found in possession of the female. He identified her, who was present in the court when the deposition was made and also named her. He also named the accused appellant No. 3. He further stated that bank notes "were seized in presence of witnesses and proved Ext-1, the seizure list. He further stated that on interrogation, it was found that another accused Airtul Hoque was also involved in dealing with fake bank notes. He also stated that a search was made in the house of the accused Ainul Hoque and two colour Xerox machines were seized in presence of witnesses (Ext. 2). In cross-examination, this witness denied that the accused appellant No. 1 was not in the canteen. He also denied that fake bank notes were not recovered from her. 9. PW3 in his deposition stated that the accused appellant Nos. 1 and 3 were arrested by police in connection with dealing of fake bank notes. He was witness to the seizure (Ext. 4). He also denied that fake bank notes were not recovered from her. 9. PW3 in his deposition stated that the accused appellant Nos. 1 and 3 were arrested by police in connection with dealing of fake bank notes. He was witness to the seizure (Ext. 4). PW4, who was the Officer-in-charge of Demow Police Station under Sibsagar District, deposed that on receipt of information from the SP, Sibsagar the accused appellant was arrested along with fake bank notes. He made search in the house of the accused. Search was also conducted in the house of her husband Imdadur Rahman, the accused appellant No. 2. On such search, a polythene bag kept inside a heap of sand was recovered containing 500 rupee denomination, which were seized in presence of witnesses (Ext. 4). In cross-examination, he stated that the seized notes were recovered from the back side of the house of Imdadur. He also stated that search was conducted in the house of Imdadur Rahman, i.e., the accused appellant No. 2. 10. PW5 is a seizure witness. PW6 in his deposition stated about making GD Entry No. 724 dated 20.11.2004 on receipt of information over telephone that a lady along with a person had come to the canteen of Dibrugarh Judicial Court carrying some fake currencies. He also stated about the investigation that was carried out. PW7 is also a seizure witness. He, in his deposition stated about seizure of the colour Xerox machine. PW8 is also a seizure witness of the Xerox machine. 11. Referring to the aforesaid evidence, Mr. Sahewalla, learned senior counsel for the accused appellants submits that when the PW1 in her deposition specifically stated that recovery of fake currency note was from the possession of the person, who had fled away, learned trial court could not have convicted the accused appellants primarily on the basis of the evidence of the PW2. However, Mr. Gogoi, learned Addl. P.P., Assam referring to the seizure list (Ext. l) submits that when it is apparent that recovery of fake notes was from the possession of the accused appellant No. 1, the appellants cannot fall back on purported contradictions in the evidence of PW1 and PW2. 12. Ext. 4 is another seizure list in respect of recovery of fake currency b note from the house premises of the accused appellant No. 2. 12. Ext. 4 is another seizure list in respect of recovery of fake currency b note from the house premises of the accused appellant No. 2. PW2 in his deposition stated that search was made in the canteen in presence of witnesses. Upon such search on the body of the accused appellant No. 1, the aforementioned currency notes were recovered from her possession. He also referred to the recovery of two colour Xerox machines from the house of accused Ainul Hoque, who had fled away. In cross-examination, he denied the suggestion that the body of the accused appellants was not searched in the canteen. He also denied that no fake currency notes were not recovered from her. That apart, as submitted by Mr. Gogoi, learned Addl. P.P., Assam, Ext. 1 and Ext. 4 seizure list clearly depict recovery of fake currency notes from the possession of the accused appellants. 13. In the decisions to which Mr. Sahewalla, learned senior counsel for the accused appellants has referred to, namely, Umashankar and Pannalal Gupta (supra), it was held that towards convicting an accused under section 489C mens rea is essential and the same on the part of the accused must be proved by prosecution. It was held that mere possession of fake counterfeit is not enough. Needless to say that ratio of a decision will have to be understood and appreciated in the back ground of fact situation of each case. 14. In Umashankar (supra), the accused was convicted merely on the basis of the evidence that the currency note given to PW by accused, then a student aged 18 years was fake. It was held that the accused could not have been convicted. In the said case, no question under section 313, Cr.PC was put to the accused about the currency note being fake or counterfeit. Same is not the case in hand. 15. In Pannalal Gupta (supra) in absence of any evidence that the appellant knew or had reason to believe that the currency notes were forged and there was possibility of fake notes given to the accused in the course of business, held that no offence was constituted under section 489C, IPC. Same is not the case in hand. 15. In Pannalal Gupta (supra) in absence of any evidence that the appellant knew or had reason to believe that the currency notes were forged and there was possibility of fake notes given to the accused in the course of business, held that no offence was constituted under section 489C, IPC. For a ready reference section 489C is quoted below: “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.” To constitute an offence under section 489C, IPC, three ingredients are a required to be established, which are (i) possession of forged or counterfeit or bank note; (ii) knowing or having reason to believe the same to be forged or counterfeit and (iii) intending to vise the same as genuine or that it may be used as genuine. 16. In the instant case, there is no dispute that fake currency note was b recovered from the possession of the accused appellant Nos. 1 and 2 in the canteen belonging to one Mr. Talukdar situated in the court premises. It is also established that further fake currency notes were recovered from the house premises of the accused appellant No. 3. Accordingly, seizure list (Ext. 1 and Ext. 4) were prepared. In the statement made by c the accused appellant No. 1 under section 313, Cr.PC, no explanation was furnished as to how she came in possession of fake currency notes. She simply denied possession. Her son i.e. the accused appellant No. 3 who had accompanied her also in his statement under section 313, Cr.PC simply denied possession of fake currency notes without any explanation as to from where and how his mother come in possession of the same. Same is the case of the accused appellant No. 3, who also did not have any explanation in his statement made under section 313, Cr.PC. 17. Above being the position, I see no reason to interfere with the impugned judgment of conviction. Same is the case of the accused appellant No. 3, who also did not have any explanation in his statement made under section 313, Cr.PC. 17. Above being the position, I see no reason to interfere with the impugned judgment of conviction. This now leads us to the submission of the learned counsel for the accused appellant that the accused appellants having already undergone about 15½ months of imprisonment, coupled with the fact that they are husband, wife and son, the sentence imposed on them is required to be reduced. 18. Considering the matter in its entirety, coupled with the fact that the accused appellants had to face protracted trial since 2004 and in the process suffered a lot, both financially and mentally, I am of the considered opinion that ends of justice would be met if the sentence is reduced to SI for two years with the enhancement of fine of Rs. 5,000 each to Rs. 10,000 each and in default, further SI for 6 months. The period already undergone by the accused appellants shall stand set off from this modified sentence. 19. The appeal is disposed of with the modified sentence as aforesaid. 20. Registry shall send back the LCR along with a copy of this judgment and order.