Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 794 (CAL)

Rakesh Kumar v. State of West Bengal

2015-09-22

INDRAJIT CHATTERJEE

body2015
Judgment : Indrajit Chatterjee, J. This appeal has been preferred as against the judgment and order of conviction respectively dated 28-04-2015 and 29-04-2015 passed by the the then Additional District & Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta, in Sessions Trial No. 4(5) of 2013 arising out of Sessions Case No. 49 of 2012 in which the sole appellant was convicted in respect of the charge punishable under Section 489B and 489C of the Indian Penal Code (hereinafter called as the said Code). The trial court was pleased to sentence the appellant to suffer rigorous imprisonment for five years and to pay fine of Rs.5000/- in default, to suffer rigorous imprisonment for one year for the offence punishable under Section 489B of the Code and the said appellant was also convicted in respect of the charge under Section 489C of the Code and was sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.2000/- in default, to suffer rigorous imprisonment for one year. The court, however, observed that both the sentences will run concurrently. The case before the learned trial court was thus :- That one written complaint was lodged by one Avishek Das with the Burtolla P.S. wherein he disclosed that he was the owner of a shop for selling Cigarette, Pan Masala etc. in front of 9, Sonagachi Lane, Kolkata-700 006 and that on the day of incident, i.e., on 06-03-2012 at about 7-30 p.m. one person aged about 35/40 years came to his shop and asked for one packet of “Flake Cigarette” and when the said de facto complainant gave him the packet, the accused handed over one note of Rs.500/- but that was not like on original note and the said de facto complainant demanded another note and the said man obliged by giving another such note which was also seemed to be unusual and the accused was again asked to change the same which made the accused angry and he started creating disturbance in the shop. Public gathered there including PWs 2 and 4. One police constable, PW 5, was passing thorugh that area and he came to the spot and thereafter the police station. PW 6 was then on patrol duty and here… one message over R.T and he went to the spot and apprehended the said person. Public gathered there including PWs 2 and 4. One police constable, PW 5, was passing thorugh that area and he came to the spot and thereafter the police station. PW 6 was then on patrol duty and here… one message over R.T and he went to the spot and apprehended the said person. The police searched and recovered 153 pieces of currency notes which appeared to be fake. All such notes were of Rs.500/- denominations and all those fake Indian currency notes were of 2FC series with different numbers. From the said accused, one driving licence standing in his name was also seized which showed that he was a resident of Jahangirpuri, Delhi – 110033. The articles were seized as per seizure list vide Burtolla P.S. G.D. Entry no. 617 dated 06-03-2012 on 06-03-2012 in between 20-30 hrs. and 23-00 hrs. from in front of “Ma Sitala Store” situated at 9, Sonagachi Lane, Kolkata –700 006. Along with all such notes, two pieces of Indian currency notes of Rs.500/- denomination were also seized. Those were also of the same series – 2FC bearing nos. 877818 and 884911 respectively. One complaint (PW 1) was filed in English by the de facto complainant giving rise to Burtolla P.S. Case no. 92 dated 07-03-2012 under Sections 489B, 489C and 120B of the Code. After the registration of the case, the case was handed over to one Goutam Ruj of the said police station for investigation and during the course of investigation, he forwarded those notes to the expert for his opinion and the expert opined that all those notes were found to be fake. After the investigation, the second Investigating Officer (PW 8) submitted charge sheet and the case was committed to the Court of Sessions which was ultimately decided by the learned trial court. I have already stated regarding the result of the criminal trial and the sentences clamped on the present appellant. Before the learned trial court as many as eight witnesses were examined including the de facto complainant, the seizure witnesses, the expert (PW 7), the Investigating Officers. The prosecution also proved several documentary evidence like the F.I.R., the seizure list, the G.D. Entries, formal F.I.R., Malkhana Register etc. Before the learned trial court as many as eight witnesses were examined including the de facto complainant, the seizure witnesses, the expert (PW 7), the Investigating Officers. The prosecution also proved several documentary evidence like the F.I.R., the seizure list, the G.D. Entries, formal F.I.R., Malkhana Register etc. The defence preferred not to adduce any oral or documentary evidence and the plea raised by the defence before the learned trial court was that it was a planted case and regarding his identification by P.W.4, the accused claimed in 313 Cr.P.C. that he was shown to the said witness at the police station. Thus in a nutshell the defence pleaded a case of false implication. Mr. Bhattacharjee, learned Advocate, appearing on behalf of the appellant submitted by taking me to the evidence of P.W.1 that this P.W.1 wrote the F.I.R. in English and he deposed in his cross-examination that someone helped him and dictated the F.I.R., that this witness read up to Class-VI or VII in one English medium school and as such the writing of the F.I.R. which is the pivot of the prosecution case is doubtful. He further submitted that if the evidence of P.W.1 is believed then this accused gave one 500 rupee note for a cigarette packet which was valued Rs.29/- and at that point of time there was Rs.100/- to Rs.150/- In the cashbox. He further argued that at that point of time none was present there and the police and the public witness thereafter came within fifteen minutes. Thus, he tried to suggest that the story made out by the prosecution to tag the accused in the crime under Section 489B cannot be corroborated at all by any other public witness as what happened at that point of time was when only P.W.1 and the accused were there. He also submitted to take note of the conduct of the accused that the accused did not flee away even though suspicion was raised against him by P.W.1 and this conduct may be taken into consideration by this court. As regards P.W.2, it was the submission of Mr. He also submitted to take note of the conduct of the accused that the accused did not flee away even though suspicion was raised against him by P.W.1 and this conduct may be taken into consideration by this court. As regards P.W.2, it was the submission of Mr. Bhattacharjee that this witness is one chance witness as this witness was taking tea in a nearby tea stall and he could not prove before the court his identity, as to the proof of his address, that the evidence of P.W.2 is partially hearsay in nature to the extent of the alleged crime under Section 489B of the Code is concerned. As regards signing of the seizure list, it was the argument of Mr. Bhattacharjee that this P.W.2 was not aware regarding the content of the seizure list. He also submitted by taking me to the evidence of P.W.1 and P.W.2 together to show that there were some contradictions to discredit this P.W.2. Regarding P.W.3 it was the argument of the defence counsel that though this PW was taking tea in the same tea stall where P.W.2 was also taking tea but neither this witness nor P.W.2 deposed before the court that both of them were taking tea at the same time in the said tea stall. It was his further argument regarding the evidence of P.W.3 that this witness be also termed as chance witness. He also attacked the version of P.W.3 by saying that this witness actually did not see the first transaction that is regarding delivery of notes by the present appellant to the de facto complainant and as such that portion of the evidence may be treated as hearsay. He took me to the evidence of P.W.3 to show that he heard chaos and, thereafter, came to the spot. Regarding the evidence of P.W.4 it was the argument of the defence that even though this PW was the owner of the tea stall where P.Ws. 2 and 3 were taking tea but did not depose that P.Ws. 2 and 3 were taking tea together at that point of time. The same argument was advanced by the learned defence counsel regarding the first transaction which allegedly happened in that shop of the complainant. He also took me to the evidence of P.W.4 to show that actually he did not see the first transaction. 2 and 3 were taking tea together at that point of time. The same argument was advanced by the learned defence counsel regarding the first transaction which allegedly happened in that shop of the complainant. He also took me to the evidence of P.W.4 to show that actually he did not see the first transaction. Regarding the evidence of P.W.5 it was the submission of the defence that this constable was not Ramesh Babu about which P.W.1 to 4 deposed and as such the version of those PWs may be considered accordingly. Regarding P.W.6 he submitted that he being the IO did not play any positive role to unearth the crime, he did not go to Delhi to trace out to search the house of the accused to see whether there were any other FICNs. He submitted that P.W.7 is a formal witness being the examiner of notes and P.W.8 is a formal witness being the second IO. Thus, through the argument the defence tried to convince this Court that the transaction had failed to derive any circumstance from which ‘knowledge’ that those FICNs which were allegedly seized from the possession of the accused were actually fake currency notes. He submitted that to arrive at the decision either in respect of the charge punishable under Section 489B and 489C such knowledge is a must. He cited two decisions of the Apex Court as reported in (i) (1979) 4 SCC Page 723 (M. Mammutti vs. State of Karnataka) wherein a two rupee note was the subject matter of the conviction under Section 489B of the Code and the Apex Court held that there was no knowledge on the part of the accused even though such note was a fake currency note. It may be noted that in that case no question was put to the accused regarding the fact that such two rupee note and other two rupee notes which were later on recovered from his house were actually fake currencies, when accused was examined under Section 313 Cr.P.C. but the accused explained that he got such notes during commercial transaction. (ii) (2002) SCC (Cri) 758 : (2001) 9 SCC 642 (Umashanker vs. State of Chhattisgarh) wherein the Apex Court on the facts and circumstances of that case held that the presumption drawn by the learned trial court is not warranted under Section 4 of the Evidence Act. (ii) (2002) SCC (Cri) 758 : (2001) 9 SCC 642 (Umashanker vs. State of Chhattisgarh) wherein the Apex Court on the facts and circumstances of that case held that the presumption drawn by the learned trial court is not warranted under Section 4 of the Evidence Act. It was also held by the Apex Court that without mens rea, selling, buying or receiving from any other person or otherwise taking in or using as genuine and forged or counterfeit currency notes or bank notes is not enough to constitute offence either under Section 489-B of the Code or under Section 489C of the Code and conviction in the absence of mens rea is bad. In that case before the floor of the Apex Court, learned trial court convicted the appellant in respect of the charge punishable under Sections 489B and 489C of the Code. The fact of the case before the trial court is also to be looked into. On the date of the incident, the accused purchased 1 kg. of mango at the cost of Rs.5/-. He paid a Fake currency note of Rs.100/- to P.W.4 who doubted its genuineness. Thereafter the accused was handed over to the police who recovered 13 more such fake currency notes from him. In that case before the Apex Court, the accused appellant was not put any question as regards the currency notes being fake when the accused was examined under Section 313 of the Code of Criminal Procedure and on that analogy the Apex Court acquitted the appellant in respect of the charge punishable under Sections 489B and 489C of the Code. It was also held in that case that in the absence of mens rea there cannot be any conviction under Section 489C of the Code. The appellant also relied upon two other decisions of other Hon’ble Courts as reported in (i) 1997 Cri.L.J. 3188 (Mohd. Yasin vs. State of U.P.) in which the decision of the Apex Court in M. Mammutti (supra) was also relied upon. In this decision the accused tendered a fifty rupee note to the shop keeper which was found to be fake, in that case the accused admitted the possession of the note but expressed his innocence. Yasin vs. State of U.P.) in which the decision of the Apex Court in M. Mammutti (supra) was also relied upon. In this decision the accused tendered a fifty rupee note to the shop keeper which was found to be fake, in that case the accused admitted the possession of the note but expressed his innocence. The single bench of Allahabad High Court held that counterfeiting was so skillful that presumption of knowledge from mere possession of it could not be drawn particularly when the accused was having only single forged note. (ii) 2001 Cri.L.J. 3787 (Veera Swamy Shanmugam Sundaram vs. State of A.P.) wherein also the accused tendered a hundred rupee note at the railway counter for purchase of ticket which was proved to be fake and as such the Hon’ble Andhra Pradesh High Court held that essential ingredients of Sections 489B and 489C of the Code not made out as there was no proof that accused had knowledge that it was a counterfeit note and he intended to make use of it. The appellant also relied upon two Division Bench decisions of this Court as reported in (i) 1990 Cri.L.J. 215 (Madan Lal Sharma vs. State) wherein this Court relied upon the decision of M. Mammutti (supra) held that knowledge or reason to believe that note was forged has to be proved and that in a case under Sections 489B and 489C, note in question must be of such type which in normal course of dealings, any person of average intelligence would consider from mere look to be forged one. In that case only one hundred rupee note was found to be defective and later on proved to be forged. (ii) 2007 Cri.L.J. 4577 (Roney Dubey vs. State of West Bengal) wherein also this Court relied upon the decision of the Apex Court as passed in Umashanker (supra) and held that the prosecution failed to prove any material to show that the appellant accused had the requisite knowledge that notes found from his possession were fake notes nor is there anything to suggest that he intended to use them. In that case the court has also disbelieved the story of counterfeiting of currency notes through Xerox machine and white paper in a room of hotel on the ground that there was nothing on record to show that such articles belonged to the convict. In that case the court has also disbelieved the story of counterfeiting of currency notes through Xerox machine and white paper in a room of hotel on the ground that there was nothing on record to show that such articles belonged to the convict. In that case the court also held that there was no material to show that the appellant had the requisite knowledge that the three fifty rupee notes found from the possession of the accused were fake notes. Thus in these cases the notes varied from some two rupee notes, fourteen five rupee notes, one fifty rupee note, one hundred rupee note, another one hundred rupee note and three fifty rupee notes. In counter to all these, Mr. Anand Keshri appearing on behalf of the State submitted that in the instant case before the floor of this court the total notes seized from the possession of this accused as per seizure list 153 fake Indian currency notes of Rs.500/-denominations in total Rs.76500/- which has been duly proved by the report of the expert and expert evidence. He also submitted that this accused is a man of Delhi and he did not explain in his 313 examination that why he came from Delhi to Calcutta. He further submitted that in 313 examination the accused failed to explain how he came into possession of such huge FICNs. He only claimed that he was innocent. He submitted that this can safely be differentiated from the decision of the Apex Court in M. Mammutti (supra) wherein the accused duly explained in 313 that how he received such FICNs. He also submitted that the decision of the Apex Court in Umashanker (supra) will also not apply as the accused did not explain how he came into possession of such huge FICNs. In Umashanker’s case the accused was then a student of 18 years and as such the Apex Court held that drawing a presumption that such accused had the requisite mens rea was not warranted under Section 4 of the Evidence Act. In Umashanker’s case the accused was then a student of 18 years and as such the Apex Court held that drawing a presumption that such accused had the requisite mens rea was not warranted under Section 4 of the Evidence Act. What also weighted the Apex Court in that case was that in 313 Cr.P.C the accused was not asked that the currency notes were fake or counterfeit but in the present case the accused was definitely apprised vide question no.38 that when he was confronted with Exhibit-12 that is the report of the expert that those notes were counterfeit notes and as such the decision of Umashanker (supra) cannot apply in the present case. As regards the other decisions including the decision of this Court he submitted that in those decisions either only one hundred rupee note, one fifty rupee note, one hundred rupee note, three fifty rupee notes and the fact of such cases cannot match with the present case. He took me to the evidence on record to show that all the seizure list witnesses, the de facto complainant have supported the prosecution case and have duly corroborated the IO and the report of the expert will show that all those 153 notes were fake. He also submitted that all the envelopes were duly sealed and labelled by the first IO, that relevant GD entries were duly proved and produced. Thus he submitted that fact the prosecution has been able to prove that accused was circulating at least two 500 hundred rupee counterfeit notes. He also submitted that in the instant case knowledge can safely be presumed under Section 4 of the Evidence Act consider the huge quantity of notes recovered from the possession of the accused. Mr. Keshri relied upon the following decisions as reported in 1. 1997 SCC (Cri) 217 Punnaswamy Vs. State wherein in a case where the accused was found to be in possession of 130 forged currency notes of Rs.1000/- denomination who failed to offer any explanation wherefrom he obtained those forged currency notes wherein the Apex Court held that silence on the part of the accused in such circumstances would by itself a telling circumstance which would weigh against him in the consideration of the prosecution evidence laid against him. 2.10 Vol III Criminal 539 Deep Chand Jundey Vs. 2.10 Vol III Criminal 539 Deep Chand Jundey Vs. State of Chattisgarh wherein the Single Judge of Chhattisgrach High Court in a case where 400 fake currency notes of Rs.100/- denomination were found in possession of the appellant held that in such a case the accused was bound to explain in terms of Section 106 of the Evidence Act that how they came into possession of those counterfeit notes and in the absence of any such explanation of the counterfeit currency notes within their knowledge it may be safely by inferring that he was possession the counterfeit notes nothing them to be show with the intention of using the same as genuine. In that case the decision of the Apex Court in Umashanker (supra) was distinguished of facts. 3. 10 Vol II AD (Delhi) 346 Anis & Anr Vs. State of NCT of Delhi wherein it was held of Single Bench of the Delhi High Court that in possession of the accused found currency notes does not tell the court as to how he had come into their possession and chooses to altogether deny his possession of such currency notes, the court would be justified in inferring that he had received those notes from someone. In this case 13 counterfeit currency notes of Rs.100/- denomination were recovered from the possession of the accused appellant. 4. 11 Cr.L.J 2493 : 2011 (7) RCR (Cri) 914 Kurukshetra Sena & Ors. Vs. State of Chhattisgarh wherein the Single Judge of that Hon’ble court held that, in absence of any explanation that the accused persons were in possession fake currency notes for any other purpose, the only inference would be possible that they were intending to use the same as genuine. In that case the accused persons were convicted in respect of the charge punishable under Sections 489B and 489C of the Code. 5. 1999 Cri.L.J 942 Rayab Jusab Soma Vs. State of Gujarat a Division Bench judgment of the Gujarat High Court, in a case where the accused was found carrying fake currency notes of two fifty in numbers all of Rs.100/- denominations on a public road concealed in a “thela” it was held that it was not a case of mere dormant possession but it is a case of active transportation of currency notes which will fall under Section 489B of the Code. Thus, he tried to convince this court that facts and circumstances of this case will only so that the accused had knowledge that he was in possession of counterfeit notes and he also tried to use two of such notes as genuine which showed that he was interested in circulating such notes. In reply it was submitted by Mr. Bhattacharya appearing on behalf of the defence that this accused appellant is in custody since 06.03.2012 and his period of detention may be considered by this Court as a case of alternative argument to release him from custody after serving the period of sentence already undergone maintaining the conviction on both counts. While discussing the fact, I have stated in details how the offence was committed and how the accused was apprehended. There are minor contradictions like in the FIR ‘to him’ was written in the separate ink, that there was no sufficient change in the cash box to give change of Rs.500/-, that PWs 2, 3 and 4 did not say that they saw each of them in that tea stall, that the public misunderstood PW 6 as one constable cannot belie the evidence of the witnesses which have been duly corroborated each other. The argument of thedefence the first part of the transaction was not seen by this public witnesses that is PWs 2 to 4 is also not convicing to me. The shop PW 1 was so near the tea stall that what happened initially in the shop of the de facto complaianat could have been easily seen by these witnesses. The IO of this case that is PW 6 candidly deposed to support the prosecution case that he seized those 500 rupee notes including two Indian currency notes and one driving license from the possession of the accused. His (First I.O) presence has been duly established vide GD Entry No.617 dated 06.03.2012 which shows that he took departure from the police station and he deposed that on the way he received an information through RT. After returning to police station doing all formalities this I.O duly diarized the matter vide GD Entry No.644 dated 07.03.2012 at about 01.05 hours which was marked as Exbt. 8/A before the trial court being a copy of Exbt. 8 (the Original GD book). After returning to police station doing all formalities this I.O duly diarized the matter vide GD Entry No.644 dated 07.03.2012 at about 01.05 hours which was marked as Exbt. 8/A before the trial court being a copy of Exbt. 8 (the Original GD book). The accused in his examination under Section 313 Cr.P.C failed to make out any positive case except that he pleaded that he has been falsely implicated. He did not divulge as to whether there was any enmity in between him and the witnesses and the police officers PWs 5 and 6. Simply because the story of false implication has been raised it cannot led to the conclusion that the accused was falsely implicated in this case. The foundation of such false implication must have been raised by the accused. On this point I can rely upon the decision of the Apex Court as reported in 2002 SCC (Cri) 1834: (2002)7 SCC 691 (Ruli Ram vs. State of Haryana) wherein the Apex Court held when a plea of false implication is raised by the accused the foundation for the same has to be established. This case of the FICNs were of a particular series 2FC this is another circumstance to be reckoned with. The accused could have explained in 313 Cr.P.C how he came into possession of such huge currency notes but he preferred to say that he was innocent. It is true that the first I.O did not go to Delhi to make out further enquiry and also did not enquire where this accused put himself up in Calcutta even though admittedly he is resident of Delhi. The public witnesses, that is, PWs 1 to 4 are all residents of that locality. It is true that PW 2 could not produce his identity card when he was cross-examined but he was not asked by the defence to produce the photo Identity Card to establish his address. This witness claimed when the form of deposition sheet was filled in that he was a resident of 8. D.C Mitra Street, Kolkata – 06. This incident took place in that area that is Kolkata –06 and I reiterate that all the private witnesses are residents of Kolkata – 06. This witness claimed when the form of deposition sheet was filled in that he was a resident of 8. D.C Mitra Street, Kolkata – 06. This incident took place in that area that is Kolkata –06 and I reiterate that all the private witnesses are residents of Kolkata – 06. In the facts and circumstances of this case, this case distinguishable from the decisions of the Apex Court in M. Mammuti (supra), Uma Shankar (supra) and the division bench decisions of this court as passed in Madan Lal Sharma and Roney Dubey (supra). Thus, this court is satisfied that the learned trial court rightly arrive at a decision that the accused appellant committed the offences punishable under Sections 489B and 489C of the Code and he was rightly convicted in respect of the said charge. The order of conviction is thus affirmed. The next question is regarding the sentence which the learned trial court imposed. The appellant was sentenced to suffer rigorous imprisonment for five years for the offence under Section 489B and for the offence 489C the substantive punishment awarded was rigorous imprisonment for four years. Considering the nature of the crime which is affecting the economic sovereignty of our country and also damaging the economic structure of the country this court is satisfied that the substantive sentence as imposed by the learned trial court including the fine amount be both retained and needs no interference by this Court. Thus the sentence and amount of fine as imposed by the trial court are both confirmed. The sentences will run concurrently. The accused appellant will naturally get set of under Section 428 of the Cr.P.C. After the period of appeal is over, the counterfeit notes shall be handed over to the Inspector-in-Charge, Burtolla Police Station on proper receipt, as per Rule 222(2) of the Criminal Rules and Orders for sending the same to the Issue Department of the Reserve Bank of India, Kolkata with a brief report of this case. Original GD books, that is, Vol No.29 of 2012 and Vol NO.30 both of Bortala P.S opened respectively on 04.03.2012 and 06.03.2012 which contains Exbt. 5 and Exbt. 8 of this criminal trial be returned back to O.C Burtolla forthwith on proper receipt. It may be mentioned a photo of page No.773489 of Vol No. 29 of 2012 (Exbt. Original GD books, that is, Vol No.29 of 2012 and Vol NO.30 both of Bortala P.S opened respectively on 04.03.2012 and 06.03.2012 which contains Exbt. 5 and Exbt. 8 of this criminal trial be returned back to O.C Burtolla forthwith on proper receipt. It may be mentioned a photo of page No.773489 of Vol No. 29 of 2012 (Exbt. 5) be prepared by the department duly attested by any competent officers of this court to be kept in the exhibit list. As regard the other GD book such formality need not be under taken as the copy of the said GD Entry No.644 dated 07.03.2012 has already been marked as Exbt. 8/A in that criminal trial. These GD Books must be returned forthwith so that other public who are interested in those GD entries may not be deprived of such GD entries. Such act would have done by the trial court but the learned Judge failed to discharge that duty. Appeal thus fails. There will be no order as to costs. The department is directed to transmit the LCR along with a copy of this judgment to the learned Trial Court by Special Messenger.