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2015 DIGILAW 734 (KAR)

Ashru Alias Ashraf v. State of Karnataka

2015-07-09

PRADEEP D.WAINGANKAR

body2015
JUDGMENT : Pradeep D. Waingankar, J. - This appeal is preferred challenging the judgment of conviction and sentence of the appellant dated 2-1-2010 in SC No. 106 of 2006 on the file of Fast Track Court, Puttur in Dakshina Kannada. 2. The brief facts which gave rise to this appeal are as under: The appellants 1 to 3 were accused 1 to 3 in S.C. No. 106 of 2006 on the file of Fast Track Court, Puttur. On 10-2-2005 the Police Inspector, Puttur Rural Circle, T. Sanjeeva Naik (P.W. 1) received credible information at about 5.30 early in the morning that three persons were attempting to circulate fake currency notes near Nekkilady Bus Stop in Puttur Taluk. Immediately he rushed to his office, secured two panchas and Police Sub-Inspector of Uppinangady Police Station Sri S. Parashivamurthy (P.W. 9) and his staff and proceeded to Nekkilady Bus Stop in a police jeep at about 6.00 a.m. By seeing the police jeep three persons tried to run away. Somehow they were apprehended by P.W. 1 with the assistance of his staff. On interrogation, they disclosed their names as: (1) Ashru alias Ashraf; (2) Rasheed; and (3) Ashraf S/o. Yousuf. The P.W. 1 seized in all 210 fake currency notes of Rs.100/- denomination from all the three persons apart from 13 genuine notes of Rs.10/- each. On further enquiry, they disclosed that the notes were obtained from one Abbas residing near Uppinangady Bus Stop and one Mamu alias Mohammad of Uruvalu Village for circulation of the same as genuine notes. As such, all the notes were seized under the panchanama-Ex. P. 1. All the three persons were arrested and brought to Uppinangady Police Station within whose jurisdiction the offence had taken place. 3. P.W. 1 lodged a complaint as per Ex. P. 2 against all the three accused for the offences punishable under Sections 489-B and 489-C of Indian Penal Code, 1860. P.W. 9-the PSI of the Uppinangady Police Station registered a case in Crime No. 40 of 2005 for the offence punishable under Sections 489-B and 489-C read with Section 34 of IPC. P. 2 against all the three accused for the offences punishable under Sections 489-B and 489-C of Indian Penal Code, 1860. P.W. 9-the PSI of the Uppinangady Police Station registered a case in Crime No. 40 of 2005 for the offence punishable under Sections 489-B and 489-C read with Section 34 of IPC. P.W. 9 upon further information from the accused already arrested, came to know that three other persons namely Mamu, U. Abbas and Kunhi alias Mohammad Kunhi were also involved in circulation of fake notes in different areas from whom accused 1 to 3 said to have obtained fake currency notes. Upon investigation, P.W. 9 filed charge-sheet against 6 accused persons for the aforesaid offences. It appears that during the pendency of the case, accused 5-U. Abbas died. The case against accused 6-Kunchi was split up. The charges were framed against accused 1 to 4. 4. The accused having denied the charges levelled against them, the prosecution, in order to establish the charges, examined as many as nine witnesses as P.Ws. 1 to 9, Exs. P. 1 to P. 9 were marked apart from M.Os. 1 to 7. On behalf of the defence, the portion of the statement of P.W. 2 was marked as Ex. D. 1. 5. The defence of the accused was that of total denial and false implication. The learned Session Judge upon hearing the submissions made by both the learned Counsel appearing for the parties and on appreciation of the evidence, convicted the accused 1 to 3 for the offence punishable under Section 489-C read with Section 34 of IPC, while acquitting the accused 4 Mamu by judgment dated 2-1-2010. Aggrieved by their conviction and sentence the accused 1 to 3 have preferred this appeal. 6. I have heard the learned Counsel appearing for the appellants-accused 1 to 3 and the learned High Court Government Pleader for respondent. 7. Aggrieved by their conviction and sentence the accused 1 to 3 have preferred this appeal. 6. I have heard the learned Counsel appearing for the appellants-accused 1 to 3 and the learned High Court Government Pleader for respondent. 7. The learned Counsel for the appellants would submit that after receipt of the credible information as to the circulation of fake notes which is a cognisable offence, the Police Officer proceeded to the spot, arrested the accused, seized the fake currency notes without registration of FIR which is mandatory under Section 154 of Criminal Procedure Code, 1973 and as such the entire investigation made by the Officer and the charge-sheet filed against the accused is not sustainable in law and therefore on that ground alone the accused ought to have been acquitted of the charges levelled against them. The learned Counsel further submitted that the evidence placed on record is full of material contradictions which go to the very route of the case and the learned Session Judge by ignoring the same, convicted the accused and as such their conviction is liable to be set aside. He would also submit that the sentence of three years imprisonment imposed by the Session Judge is not commensurate with the gravity of the crime. The learned Counsel placed reliance on the Constitution Bench decision of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh and Others, AIR 2014 SC 187 : (2014)1 SCC (Cri.) 524 : 2014 Cri. L.J. 470 (SC) : (2014) 2 SCC 1 and the decision in Ramesh Kumari v. State (N.C.T. of Delhi) and Others, AIR 2006 SC 1322 : 2006 SCC (Cri.) 678 : 2006 Cri. L.J. 1622 (SC) : 2006 AIR SCW 1021 : (2006) 2 SCC 677 apart from some unreported decisions of this Court to buttress his argument. 8. The learned High Court Government Pleader on the other hand has argued in justification of the judgment of conviction passed by the Session Judge. 9. To bring home the guilt of the accused the prosecution examined in all 9 witnesses. P.W. 1-T. Sanjeeva Naik is Circle Inspector, Puttur Rural Circle is the complainant who lodged the complaint as per Ex. P. 2. P.W. 2-M. Vishwanath and P.W. 3-Yusuf are the panchas. The spot panchanama-Ex. P. 1 where under the fake currency notes were seized from the possession of the accused. P.W. 1-T. Sanjeeva Naik is Circle Inspector, Puttur Rural Circle is the complainant who lodged the complaint as per Ex. P. 2. P.W. 2-M. Vishwanath and P.W. 3-Yusuf are the panchas. The spot panchanama-Ex. P. 1 where under the fake currency notes were seized from the possession of the accused. P.W. 4-Hariprasad is the Police Constable working in the office of P.W. 1 at the relevant point of time. P.W. 5-Jayantha Poroli is pancha to another seizure panchanama-Ex. P. 5 where under the fake notes were seized from accused 4. P.W. 6-A.K. Shreevathsav was Assistant General Manger of Bharatiya Reserve Bank Note Mudran (Private) Limited, Mysore who examined the notes seized in the crime and opined that 216 notes of Rs.100/- denomination each seized from the accused were counterfeit notes and other notes of Rs.10/- and Rs.5/- denomination seized from the possession of the accused were genuine currency notes. P.W. 7-Babu Gowda is the Head Constable attached to Vitla Police Station who was summoned by P.W. 1 while conducting a raid. P.W. 8-B. Devidas the Head Constable working in Uppinangady Police Station was deputed to take the notes to Bharatiya Reserve Bank Note Mudran (Private) Limited, Mysore. P.W. 9-S. Parashivamurthy was PSI of Uppinangady Police Station who investigated the case and filed charge-sheet. 10. P.W. 1-the Circle Police Inspector has deposed that on 10-2-2005 at about 5.30 a.m. he received a credible information to the effect that three persons were circulating counterfeit notes near Nekkilady Bus Stand; immediately he passed on the information to the PSI of Uppinangady Police Station; he secured the presence of two panchas, the PSI of Uppinangady Police Station and his staff and proceeded to Nekkilady Bus Stand on a jeep, at about 6.00 a.m.; when the jeep reached near Nekkilady Bus Stand, three persons by seeing the jeep attempted to run away. However, they were apprehended by P.W. 1 with the assistance of his staff and the PSI. On enquiry they disclosed their names as Ashru alias Ashraf, Rasheed B., Ashraf S/o. Yousuf. On search of their person, P.W. 1 recovered in all 210 fake currency notes of Rs.100/- denomination and 6 notes of Rs.10/- denomination which were the currency notes. However, they were apprehended by P.W. 1 with the assistance of his staff and the PSI. On enquiry they disclosed their names as Ashru alias Ashraf, Rasheed B., Ashraf S/o. Yousuf. On search of their person, P.W. 1 recovered in all 210 fake currency notes of Rs.100/- denomination and 6 notes of Rs.10/- denomination which were the currency notes. On further enquiry regarding the source, they disclosed that the notes were obtained from one Mamu i.e. accused 4, 15 days prior to the incident for the purpose of circulating the same knowingfully well that they were counterfeit notes. All the notes were seized under a mahazar-Ex. P. 1 in the presence of panchas. As such accused 1 to 3 were arrested and brought along with the seized currency notes to Uppinangady Police Station within whose jurisdiction the offence took place, P.W. 1 lodged a written complaint as per Ex. P. 2 which came to be registered in Crime No. 40 of 2005 for the offence punishable under Sections 489-B and 489-C read with Section 34 of IPC. Though this witness had been cross-examined, at length, nothing concrete has come out of it so as to enure to the benefit of the accused. 11. P.W. 2-Vishwanath is pancha to the seizure panchanama. Ex. P. 1 where under the counterfeit notes were seized from the possession of the accused. His evidence would reveal that his house is situated at a distance of V/2 km. 11. P.W. 2-Vishwanath is pancha to the seizure panchanama. Ex. P. 1 where under the counterfeit notes were seized from the possession of the accused. His evidence would reveal that his house is situated at a distance of V/2 km. and his mechanical shop is at a distance of 1 furlong from Uppinangady Police Station; in the year 2005 one day at about 5.30 a.m. he was in the workshop and at that time a Police Constable called him to the office of P.W. 1, he went there along with one Umesh Shenoy and they were taken to Nekkilady Bus Stand to act as panchas; there were 4 to 5 persons near Nekkilady Bus Stand and by seeing the police they tried to run away; out of that, two persons were apprehended and other two were also chased and brought to the spot; after about half an hour, on search of their person, the police found fake currency notes, panchanama was drawn by the police, he was aware of the names of the accused at that time though now he does not remember their names, that they were in possession of 3 to 4 thousand rupees, all the notes were packed and sealed, he has also deposed that along with the fake notes they were also in possession of currency notes, he identified his signatures on all the packets where under the notes were packed and sealed, he has also identified his signature on Ex. P. 1-panchanama at Ex. P. 1(b). In the cross-examination he has deposed that he is the first person to put his signature on panchanama followed by others. He has deposed that he was sleeping in his workshop on that night he was asked by the Circle Police Inspector to come to his office, he has admitted that the shops generally are opened at about 8.30 a.m. in Uppinangady and people gathered at Uppinangady even earlier to that. Further he has deposed that he does not know how much notes were seized from particular accused and he also does not remember in how many packets the notes were seized. He has further deposed that he does not know what has been written in the panchanama. Suggestion made to him that his signature was taken in the Police Station has been denied by him. He has further deposed that he does not know what has been written in the panchanama. Suggestion made to him that his signature was taken in the Police Station has been denied by him. Apart from denying that always he is in the habit of putting signatures on the panchanama. Though the witness has been cross-examined, wherein he gave admissions in favour of the accused, if his chief examination and cross-examination is read, there cannot be any doubt that he was bodily present when the accused were arrested and the notes were seized from the person of the accused under mahazar-Ex. P. 1. Since the incident was of the year 2005 and his evidence was recorded on 26-10-2009 after about 4 years, he has pleaded ignorance about the sequence of events that had taken place on the spot. Therefore it is suffice to say that he has supported the case of the prosecution. 12. P.W. 3-Yusuf has turned hostile to the prosecution case. 13. P.W. 4-Hariprasad is the Police Constable who accompanied P.W. 1. He has deposed in conformity with the evidence given by P.W. 1 since he was one of the members of the raiding party. He has deposed that they had been to Nekkilady Bus Stand on a jeep, he along with the other members apprehended accused 1 to 3-Ashraf, Rasheed and Ashraf S/o. Yousuf and on search of their person, recovered the fake currency notes. It was seized under panchanama-Ex. P. 1. All the suggestion made to him in the cross-examination have been denied by him. 14. P.W. 5-Jayantha Poroli is a pancha who was summoned to Uppinangady Police Station by P.W. 9 and accordingly he went to the Police Station, another pancha by name Sudhesh was therewith him, they were taken to Ilanthila Village to a shop by the Sub-Inspector of Police and the Police Inspector recovered 5 to 6 notes from the said person which were fake notes, the notes were seized under a panchanama-Ex. P. 5 and the notes along with the person from whom they were recovered were brought to the Police Station. But he has not stated the name of the said persons from whom the notes were seized. P. 5 and the notes along with the person from whom they were recovered were brought to the Police Station. But he has not stated the name of the said persons from whom the notes were seized. He has admitted in the cross-examination that he was one of the witnesses in the theft case and it appears from his evidence that he was a stock witness attached to Uppinangady Police Station as such his evidence cannot be given much importance. 15. P.W. 6-A.K. Shreevastava is working as Assistant General Manager in Bharatiya Reserve Bank Note Mudran (Private) Limited, Mysore. He has deposed that he is B. Tech. in Print and Technology, that 231 notes were sent to him in a sealed cover for examination as to whether they are fake or genuine, he opened the cover and found there were 13 notes of Rs.10/- denomination each 2 notes of Rs.50/- denomination each and 216 notes of Rs.100/- denomination, on examination he found that all the Rs.100/- denomination notes were fake notes whereas the other notes of Rs.10/- and Rs.50/- denomination were currency notes and accordingly he gave his report as per Ex. P. 6. There is nothing in his cross-examination so as to disbelieve or doubt the veracity of his evidence. 16. P.W. 7-Babu Gowda the Head Constable who also accompanied P.W. 1 to Nekkilady Bus Stand, he has also spoken in conformity with the evidence given by P.W. 1. Though he has been cross-examined at length, I do not see anything so as to disbelieve his evidence except some contradictions here and there which according to me are not material contradictions. 17. P.W. 8-Devidas is also another Head Constable who was entrusted the notes seized so as to take the same to Bharatiya Reserve Bank Note Mudran (Private) Limited, Mysore. He has deposed for having taken those notes in a sealed cover and handed over to the RBI note printing press and obtained an acknowledgment for having received the same. 18. P.W. 9 is the Investigating Officer. He was also one of the members of the raiding party. He has spoken in detail regarding the fact that he was summoned by P.W. 1 to his office, informed of the information received by him regarding the circulation of fake currency notes. 18. P.W. 9 is the Investigating Officer. He was also one of the members of the raiding party. He has spoken in detail regarding the fact that he was summoned by P.W. 1 to his office, informed of the information received by him regarding the circulation of fake currency notes. Further he has spoken that P.W. 1 along with him and panchas and staff went to Nekkilady Bus Stand in his jeep, apprehended accused 1 to 3, seized the fake currency notes from their possession under panchanama-Ex. P. 1, arrested accused 1 to 3 came back to Uppinangady Police Station where P.W. 1 lodged a complaint which came to be registered in Crime No. 40 of 2005 by him for offence punishable under Sections 489-B and 489-C read with Section 34 of IPC. Further he has deposed that on 11-7-2005 he got information that accused 4 Mamu alias Mohammed was in a shop in Ainthadaka Village; he along with pancha went there, the said accused 4-Mamu was in the shop, he tried to escape from the clutches of the police, somehow he was apprehended and on search six fake notes of Rs.100/- denomination and two genuine notes of Rs.50/- each were recovered and seized on the spot under a panchanama; the accused 4 gave a voluntary statement wherein he stated that the fake notes were given to him by an autorickshaw driver by name Mohammed and since then he was circulating those notes in instalments, he has also volunteered that the remaining notes he handed over to accused-Rasheed and Ashraf. He has also stated in his statement that if the notes are circulated he used to get 50% real value of the notes, he seized all those notes under a panchanama-Ex. P. 5, came to Police Station produced the accused in the same crime before the Magistrate, further he has spoken of having forwarded the notes to the RBI printing press for examination. In the cross-examination he was asked as to the procedure as soon as the police receives credible information regarding cognisable offence. He has deposed that in the credible information as to the cognisable offence is received they do not enter the same in the police diary though he admits that in case of cognisable offence the information has to be recorded in station house diary. He has deposed that in the credible information as to the cognisable offence is received they do not enter the same in the police diary though he admits that in case of cognisable offence the information has to be recorded in station house diary. But according to him if the information is secret they do not enter the same in the station house diary. The suggestion made to him that even if it is a secret information it is mandatory for the station house officer to enter the same in the station house diary has been denied by him. He was also cross-examined at length on the aspect of investigation and filing of the charge-sheet. But he remained stubborn. 19. Thus, from the evidence of all these witnesses examined on behalf of the prosecution and on appreciation of their evidence, it is evident that the P.W. 1 along with P.W. 9 and others apprehended accused 1 to 3 on the spot and recovered in all 210 notes of Rs.100/- denomination and 6 notes of Rs.10/- denomination and 2 notes of Rs.50/- denomination under a panchanama-Ex. P. 1. The seizure panchanama is also supported by the independent pancha by name Vishwanath who was examined as P.W. 2. Whose evidence does inspire the confidence of the Court. By the evidence of P.W. 6 the official of RBI Printing Press, Mysore, it is established that all 210 notes of Rs.100/- denomination were fake notes whereas other notes were genuine notes. The number of all the notes seized have been incorporated in Ex. P. 1-panchanama. That itself fortifies that all these notes were sized on the spot from the possession of accused 1 to 3. 20. The learned Counsel for the appellants-accused vehemently argued before me that the pancha Vishwanath failed to identify the accused 1 to 3 as the very same persons who were apprehended and from whom the notes were seized. It is true that during the course of his evidence before the Court he has deposed that he does not know whether they were the very same persons or not. That is of no consequence for the reason that the accused 1 to 3 were apprehended then and there only in his presence and therefore the question of wrong identification does not arise in this case. Even otherwise, all other witnesses particularly P.Ws. That is of no consequence for the reason that the accused 1 to 3 were apprehended then and there only in his presence and therefore the question of wrong identification does not arise in this case. Even otherwise, all other witnesses particularly P.Ws. 1 and 9 the responsible Officers have very clearly deposed that they were the same persons who were apprehended and the notes were seized. Moreover, it is unusual to recover the fake notes from all the persons. From the totality of the evidence, it appears that a gang of persons is engaged in circulating the fake notes and in the process these accused were apprehended and the notes were seized. So the learned Session Judge on appreciation of the evidence, has held that accused 1 to 3 were guilty of the offence punishable under Section 489-C of IPC. 21. At this stage, it is relevant to state that the learned Counsel for the appellant vehemently argued before me that after receipt of credible information that three persons were engaged in circulating fake currency notes, the CPI and Sub-Inspector of Uppinangadi Police Station proceeded to the spot, without registration of FIR, apprehended the accused and therefore according to him the entire proceedings have vitiated inasmuch as the judgment requires to be set aside on that count alone. He has placed reliance on two decisions of the Supreme Court and unreported decisions of this Court as stated above. I have gone through the decisions cited by the learned Counsel more particularly the Constitution Bench decision of the Supreme Court in the case of Lalita Kumari. The issue that arose for consideration before the Constitution Bench was whether a Police Officer is bound to register a First Information Report upon receiving any information relating to commission of a cognisable offence under Section 154 of the Criminal Procedure Code, 1973 or the Police Officer has the power to conduct a preliminary enquiry in order to test the veracity of such information before registering the same. It was held the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation - This is the general rule and must be strictly complied with. It was held the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation - This is the general rule and must be strictly complied with. Further, in Headnote D, it is held as under: "D. Criminal Procedure Code, 1973 Sections 154(1) and 157(1) FIR Generally - Kindly of FIR - Two kinds of FIRs: duly signed FIR under Section 154(1) is by the informant to Police Officer and second kind of FIR is one an informant - Registration of both kinds of FIR, obligatory - Inherent advantages of registration of FIRs, outlined - Non-registration of FIR, consequences - Burking of crime and negative impact on the rule of law, discussed." 22. Thus, from reading the ratio laid down by the Constitution Bench decision of the Supreme Court, it is manifest that the registration of FIR is mandatory under Section 154 of Cr. P.C. if the information discloses commission of a cognisable offence and no preliminary enquiry is permissible in such a situation. This is the general rule and must be strictly complied with. The information received by P.W. 1-the Circle Inspector of Police and P.W. 9-the Police Sub-Inspector, Uppinangady Police Station was with regard to circulation of fake currency notes which is an offence punishable under Section 489-C, a cognisable offence. The evidence of P.W. 1 would go to show that he had a credible information regarding the circulation of fake currency notes. In that case, it was obligatory on his part and mandatory under Section 154 of Cr. P.C. to register FIR at the first instance and thereafter to proceed to investigate into the case. Once the information is received, in relation to a cognisable offence, the Police Officer has no option then to register a FIR. It is not open for him to go for preliminary enquiry as to the genuineness or otherwise of the information received. In the case on hand, there is clear violation of the mandatory provision of Section 154 of Cr. P.C. which has been incorporated in Cr. P.C. with a definite purpose to protect the liberty of an individual. It is not as if the said question was not raised or argued before the Session Judge. In the case on hand, there is clear violation of the mandatory provision of Section 154 of Cr. P.C. which has been incorporated in Cr. P.C. with a definite purpose to protect the liberty of an individual. It is not as if the said question was not raised or argued before the Session Judge. If we go through the cross-examination of P.W. 9 it is very clear that these aspects regarding the registration of the FIR were asked in the cross-examination. But the learned Session Judge conveniently ignored to refer the same in his judgment. Since the case was investigated without registration of the FIR, the entire proceedings have vitiated. Since the proceedings are bad in law, the only alternative left with this Court is to set aside the judgment of conviction and sentence on that count alone notwithstanding the evidence placed on record by the prosecution. In the result, I pass the following: ORDER The appeal is allowed. The judgment of conviction and sentence of the appellants-accused dated 2-1-2010 in SC No. 106 of 2006 on the file of the Presiding Officer, Fast Track Court, Puttur, Dakshina Kannada, is hereby set aside. Appellants-accused are acquitted of charge levelled against them.