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2015 DIGILAW 307 (GUJ)

STATE OF GUJARAT v. HARENDRA @ PARABHU VIRNA GOUD

2015-03-19

ANANT S.DAVE, G.R.UDHWANI

body2015
JUDGMENT G.R. UDHWANI, J. 1. Criminal Appeal No.503 of 2011 has been preferred by the State of Gujarat for enhancement of the sentence imposed on Harendra @ Prabhu Virna Goud original accused No.1 after finding him guilty for the offences punishable under Sections 489B, 489C and 420 of the Indian Penal Code ( for short “IPC” ) and for the offences punishable under Section 489B of IPC imposed on Sadam Mobin Ansari – original accused No.2 by the judgment and order dated 31.12.2010 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Vadodara against which order each of the convicts have separately preferred Criminal Appeal No.623 of 2011 and Criminal Appeal No.584 of 2011 respectively. The original accused No.1 Harendra @ Prabhu Virna Goud has been sentenced to a rigorous imprisonment of seven years and a fine of Rs.5,000/- and a further sentence of simple imprisonment of one year in lieu of fine for the offence under Section 489B of IPC, and rigorous imprisonment of five years and a fine of Rs.5,000/- and a further sentence of simple imprisonment of one year in lieu of fine for the offence punishable under Section 489C of the IPC and simple imprisonment of three years and a fine of Rs.2,500/- and a further sentence of simple imprisonment of six months in lieu of fine for the offence punishable under Section 420 of the IPC. All the sentences have been ordered to run concurrently. The original accused No.2 Sadam Mobin Ansari has been sentenced to a rigorous imprisonment of seven years and a fine of Rs.5,000/- and a further sentence of simple imprisonment of one year in lieu of fine for the offence punishable under Section 489B of the IPC. However the learned Judge recorded acquittal of original accused No.1 Harendra @ Prabhu Virna Goud for the offence punishable under Sections 489A and 120B of IPC and for the offences punishable under Sections 489A, 489C, 420 and 120B of IPC the original accused No.2 Sadam Mobin Ansari has been acquitted. 2. An FIR being C.R. No. I – 47 of 2009 came to be registered in Sayajiganj Police Station, Vadodara alleging the offence punishable under Sections 489A, 489B, 489C, 120B and 420 of the IPC. The case against the convicts in the FIR was regarding counterfeiting, selling, buying, receiving, trafficking, possessing and circulation of forged currency notes. 3. 2. An FIR being C.R. No. I – 47 of 2009 came to be registered in Sayajiganj Police Station, Vadodara alleging the offence punishable under Sections 489A, 489B, 489C, 120B and 420 of the IPC. The case against the convicts in the FIR was regarding counterfeiting, selling, buying, receiving, trafficking, possessing and circulation of forged currency notes. 3. Upon investigation and finding material against the convicts, a chargesheet was filed in the Court of learned Judicial Magistrate, First Class, Vadodara, who committed the case to the Court of Sessions, Vadodara as the said court was competent to try the case. Ultimately charge was framed and the convicts having pleaded not guilty and having sought trial, they were tried and found guilty and sentenced as aforesaid. 4. Amongst other witnesses, the prosecution case mainly rested on the testimony of P.W.3 Exh.13 Shabbirbhai Gulamrasul Shaikh and P.W.4 Exh.14 Mukeshbhai Kapurchandra Agrawal. 5. Various rival contentions have been raised. The learned counsel for the convicts mainly contended that the testimony of P.W.3 and P.W.4 was unreliable for various contradictions, omissions and improvements inasmuch as, the substantial part of story have admittedly stated by them for the first time in the court. He would also contend that the prosecution did not prove the crucial ingredients i.e. mens rea which was must for bringing home the guilt of the accused under the said provisions. 6. As against that, learned APP invited our attention to the testimony of P.W.3 and P.W.4 as well as discoveries and recoveries and scientific evidence and contended that knowledge, possession and fakeness of the currency notes were established beyond reasonable doubt against the accused. He would contend that the burden to show that the currency notes were not fake and that they had no intention or knowledge to commit an offence was shifted on the convicts once the aforestated evidence was led. Learned APP would also contend that the accused were confronted with the aforestated material in their statements recorded under Section 313 of the Code of Criminal Procedure (for short “Cr.P.C.”) and they failed to explain the incriminating circumstances. 7. The version of P.W.3 would indicate that he was a meat/chicken vendor from whom accused Harendra is said to have purchased chicken worth Rs.50/- and exchanged Rs.500/- note to pay Rs.50/- to the witness. 7. The version of P.W.3 would indicate that he was a meat/chicken vendor from whom accused Harendra is said to have purchased chicken worth Rs.50/- and exchanged Rs.500/- note to pay Rs.50/- to the witness. When he wanted to purchase grocery from the market, the said currency note was rejected as fake by the merchant concerned which was confirmed as such by the friend of the witness employed in a bank. Under the fear of being booked for the possession of fake currency note, the witness teared the note apart as advised by his friend. 7.1 On the third day, the witness who was keeping vigil on Harendra noticed him in the provision store opposite to his house, and after Harendra purchased certain articles from the provision store, the witness on inquiry learnt from the occupant of the provision store (P.W.4) that convict Harendra had exchanged Rs.500/- note with P.W.4 for paying his bill. Suspecting foul play, P.W.3 and P.W.4 searched and found the convict in the market and drew them to the shop of P.W.4 under certain pretext. P.W.4 summoned the police and the people from the press also arrived, and on the search of the convicts, certain notes were found but the witness is not able to testify in his deposition as to from whom amongst the two the said notes were found. 7.2 The witness has been cross-examined on various points; the crucial amongst which is the fact that when the convict Harendra exchanged Rs.500/- currency note with him, other customer also dealt with the witness and gave him currency notes of different denomination and he did not mark the fake currency note to identify as such. Further the material parts of his testimony about his being informed about fakeness of the currency notes by the vendor and the bank official and the conversation with him arousing a fear of getting arrested if the note was exchanged in the market and his having teared the note for that reason and his having noticed Harendra going to the provision store and P.W.4 having shown to him currency note of Rs.500/- which seemed fake and his having gone with P.W.4 alongwith other persons in search of the accused have been stated before the Court for the first time and that was not the case of the witness in the FIR. 7.3 If the examination-in-chief of P.W.4 is seen, it would appear that material particulars stated by P.W.3 are corroborated, however, the witness could not correctly identify the convicts in the court. 7.4 Like P.W.3, this witness also states for the first time before the court the material particulars like going in the search of the convicts, grabbing the convicts near the vegetable market and finding of wallet from the pocket of the convicts. The witness is also not specific as to whether the convicts were caught by P.W.3 himself or by the police. Two contradictory statements to this effect have been made by the witness in the cross-examination contrary to his claim in the examination-in-chief that police arrived subsequent to the apprehension of the convicts by them. Admittedly, P.W.9 Exh.36 Mansingbhai Daljibhai Damor serving as PSI in Sayajiganj Police Station on 03.03.2009 claims having received an information through his private informant about circulation of fake currency notes and having arranged a raiding party and searched Fatehganj Sadarbazar, scene of offence at 10:15 and found the convicts there. 7.5 That apart, as noticed above, the omission of crucial part of the story by P.W.3 and P.W.4 respectively from the FIR and the statement under Section 161 and contradictions and omissions discussed above renders their testimony devoid of trust. 8. Apart from what has been discussed hereinabove, for the purpose of bringing home the guilt under Section 489B of IPC, the knowledge or reason to believe the currency note to be forged or counterfeit has to be established by the prosecution. Similarly, for the purpose of bringing home the guilt under Section 489C of IPC, the knowledge or reason to believe and the intention to use the forged or counterfeit currency note as genuine or its possibility of being so used must be established against the accused. When pointedly asked, the learned APP was unable to lay his finger on such finding against the accused. The learned counsel for the convicts has thus rightly relied upon Uma Shanker Vs. State of Chhatisgarh [ (2001) 9 SCC 642 ] wherein following observations were made: “A 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 banknotes are forged or counterfeit”. State of Chhatisgarh [ (2001) 9 SCC 642 ] wherein following observations were made: “A 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 banknotes are forged or counterfeit”. Without the aforementioned mens rea selling, buying, or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489C 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 ......” Similar view has been expressed in K. Hashim Vs. State of Tamil Nadu [ (2005) 1 SCC 237 ] and State of Gujarat Vs. Fatimabibi decided by Division Bench of this Court (Coram: D.H. Waghela & N.V. Anjaria, JJ.) in the application for leave to appeal preferred in Criminal Appeal No.1019 of 2011 decided on 10.01.2012 and Criminal Misc. Application No.11068 of 2012 preferred for leave to appeal in Criminal Appeal No.1145 of 2012 (Coram: M.R. Shah & S.H. Vora, JJ.) decided on 30.4.2013 and Criminal Appeal No.382 of 1996 (Coram: Bhagwati Prasad & S.R. Brahmbhatt, JJ.) decided on 27.08.2008. Thus it is a settled legal position that to bring home the guilt of the accused under the aforementioned provisions, the proof of mens rea is must, and mere proof of possession of fake currency notes would not constitute the said offences. 9. Thus, in absence of the required evidence, the conviction under the aforesaid sections as also under Section 120B and Section 420 of IPC cannot be sustained. 10. In the aforesaid circumstances, it is not necessary for us to discuss in detail the other part of evidence wherefrom the attempt was made by learned APP to indicate the recovery/discovery of the forged or counterfeit currency notes from the possession of convicts or from their place of abode. 11. 10. In the aforesaid circumstances, it is not necessary for us to discuss in detail the other part of evidence wherefrom the attempt was made by learned APP to indicate the recovery/discovery of the forged or counterfeit currency notes from the possession of convicts or from their place of abode. 11. In the light of the above legal position, we do not find any substance in the argument of the learned APP that the burden of proof about the character of the currency notes and the knowledge and intention shifted on the convicts. 12. In view of the above discussion, the convicts are entitled to succeed in the appeal whereas the State appeal for enhancement must fail. 13. In the result, Criminal Appeal No.584 of 2011 preferred by Sadam Mobin Ansari – original accused No.2 and Criminal Appeal No.623 of 2011 preferred by Harendra @ Prabhu Virna Goud original accused No.1 are allowed. The impugned judgment and order dated 31.12.2010 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Vadodara is quashed and set aside. The convict Harendra @ Prabhu Virna Goud original accused No.1 is ordered to be acquitted for the offence punishable under Sections 489B, 489C and 420 of the Indian Penal Code and the convict Sadam Mobin Ansari – original accused No.2 is ordered to be acquitted for the offence punishable under Section 489B of the IPC. Fine, if paid, be refunded to the original accused. Learned APP Mr. J.K. Shah has placed on record the copy of jail remarks wherefrom it appears that both the convicts have served out their sentence and therefore no further order for their release is necessary. Criminal Appeal No.503 of 2011 filed by the State for enhancement fails and is dismissed.