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2017 DIGILAW 1663 (GUJ)

State of Gujarat v. Monaji Somtaji Thakor

2017-09-19

ANANT S.DAVE, R.P.DHOLARIA

body2017
JUDGMENT : R.P. DHOLARIA, J. 1.The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 10.12.2004 rendered by learned Additional Sessions Judge, Fast Track Court No.3, Gandhinagar in Sessions Case No.28 of 2004. 2. The short facts giving rise to the present appeal are that Monaji Somtaji Thakor, Rameshji Amaji Thakor and Shanaji Kacharaji Thakor were on duty as Home Guards in the month of August 1999 and while they were on duty during nocturnal hours nearby Prestige Hotel, Kalol Mehsana Highway, at that time, one unknown person dropped the bag which was taken by the aforesaid three persons and having opened it, it was found to be fake currency notes of Rs.9 lakhs which came to be equally divided amongst them. Thereafter, Monaji Somtaji Thakor handed over Rs.1,60,000/- out of his share of Rs.3 lakhs to his sister accused Gangaben for circulating the same in the market and while she circulated fake currency notes of Rs.1,29,600/- in denomination of Rs.100/-, the same were came to be recovered as muddamal. The accused in association with one another and knowing fully well that the aforesaid currency notes are fake, circulated the same in the market and thereby committed the offence under sections 489(A)(B)(C) read with section 114 of Indian Penal Code. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined 27 witnesses and also produced documentary evidences such as complaint Exh.36, extract of station diary Exh.78 etc. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 Ms.Chetna Shah, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that though there is ample evidence on record, learned trial Court did not believe the depositions of the witnesses and wrongfully acquitted the accused as such. She has submitted that while accused Nos.1, 3 and 4 were on duty as Home Guards, they found Rs.9 lakhs fake currency notes from the bag dropped by one unknown person and out of the said fake currency notes, accused No.1 handed over Rs.1,60,000/- fake currency notes for circulation in the market and while the said fake currency notes were tendered by his sister – accused No.2 for purchasing Kisan Vikas Patra as genuine currency notes and hence, during the course of investigation, Rs.1,29,600/- came to be seized which were turned out to be fake currency notes. She submitted that in order to prove the charge against the accused, requisite evidence has been laid before the learned trial Court and recovered muddamal articles were turned out to be fake currency notes, however, learned trial Court did not appreciate the aforesaid evidence in its true perspective. In her submission, learned trial Court has based its findings upon the surmises and conjecture which have no place in the criminal jurisprudence. She, therefore, submitted that learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such. 6. On the other-hand, though served, none was appearing on behalf of the respondents accused. 6. On the other-hand, though served, none was appearing on behalf of the respondents accused. This Court ordered to avail the services of the learned advocate from the panel of the advocates of Legal Aid, High Court and hence Mr.Mrudul Barot, learned advocate appears on behalf of the respondents accused and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr.Barot further submitted that there is no iota of evidence to link the accused with the crime in question. Mr.Barot further submitted that previously for the same incident, the accused were tried in two different sessions cases being Sessions Case No.22 of 2001 and Sessions Case No.104 of 2000 wherein the accused came to be acquitted and thereafter for the same incident, again the present respondents accused were tried and therefore, in view of the provisions of section 300 of the Code of Criminal Procedure 1973 and in view of the constitutional safeguards, a person cannot be tried again for the same offence and therefore, the sessions case itself was not maintainable and therefore, the judgment of acquittal recorded by learned trial Judge needs no interference by this Court. 6.1 Mr.Barot further submitted that the prosecution has failed to establish the factum of knowledge regarding fake currency notes which came to be circulated by accused No.2. He submitted that the prosecution has failed to establish the fact that the said currency notes which were recovered by the investigating agency were the same which were tendered by accused No.2, as, as per the prosecution case, the fake currency notes were tendered on 22.12.1999 whereas the same were recovered on 28.12.1999 and the prosecution has not at all led any evidence as regards to the fake currency notes which came to be tendered by accused No.2 and the same were identifiable in nature. He submitted that no evidence is available in this regard and therefore, taking into consideration the fact that the said fake currency notes have changed several hands during the interregnum period, the same could not be made relatable to the accused for circulation of fake currency notes. He submitted that no evidence is available in this regard and therefore, taking into consideration the fact that the said fake currency notes have changed several hands during the interregnum period, the same could not be made relatable to the accused for circulation of fake currency notes. He submitted that none of the independent witnesses have supported the case of the prosecution who were involved in the course of investigation and those who have supported the case of the prosecution have not even deposed on oath as to whether the same fake currency notes which were handed over by accused No.2 were came to be recovered or not and the said fact is not concretely forthcoming on record and on that count also, the accused could not be linked with the crime in question. In his submission, therefore, in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Ms.Chetna Shah, learned APP for the appellant State and Mr.Mrudul Barot, learned advocate for the respondents accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 9. PW 14 – Gautambhai Lavjibhai Makwana has been examined at Exh.35. The witness has deposed that when he was serving as Sub Post Master at Adalaj, at that time, his assistant Dashrath Madhavlal approached him on 22.12.1999 along with Postal Agent Ashwinbhai Patel and tendered Rs.1 lakh for purchasing Kisan Vikas Patra in the name of Gangaben Baldevji Thakor and her son Pravinchandra Baldevji. The witness has deposed that the said currency notes were deposited in the post office which were paid to other person. The witness has deposed that on 28.12.1999 Chetanbhai, brother of Himanshu Patel came to the post office for purchasing National Savings Certificate of Rs.1,35,125/- and that was in the name of Minaxi Chandulal Shah. Thereafter, on the same day, police official Mr.Jhala arrived for investigation and he inquired and the said currency notes were turned out to be fake currency notes. In the cross examination, the witness has admitted that he cannot count as to how much amount he received on 22.12.1999. Thereafter, on the same day, police official Mr.Jhala arrived for investigation and he inquired and the said currency notes were turned out to be fake currency notes. In the cross examination, the witness has admitted that he cannot count as to how much amount he received on 22.12.1999. The witness has also admitted that he cannot say as to how much amount he deposited on 28.12.1999. The witness has admitted that he has come to know regarding fake currency notes as the police has said so. 10. PW 15 – Dashrathbhai Madhabhai Patel has been examined at Exh.37. The witness has deposed that he was working as Clerk in the Post Office at Adalaj and that he was performing his duty as Cashier. The witness has deposed that on 22.12.1999 one Ashwinkumar Mafatlal visited the Post Office and deposited Rs.1,10,000/- which was in the denomination of Rs.100/- and he issued Kisan Vikas Patra for the same amount viz., he issued Kisan Vikas Patra of the amount of Rs.50,000/- in the name of Gangaben and another Kisan Vikas Patra in the name of Pravinchandra Baldevji. The witness has deposed that on the same day, he also received Rs.30,000/- from K.J.Dugrali and Rs.21,500/- from Kantaben and out of all the transactions, he handed over the payment of Rs.1,20,000/- to others. In his cross examination, the witness has admitted that he did not know that the said currency notes were fake while accepting and paying the money. The witness has admitted that he was not keeping notes for the same and even he has not noted any numbers of the said currency notes. 11. PW 19 – Chetanbhai Jasubhai Patel has been examined at Exh.45. The witness has deposed that his brother Himanshu was working as Postal Agent and that Minaxiben visited for Kisan Vikas Patra on 22.12.1999 for which he presented her before Mr.Makwana. The witness has given the details of several transactions undertaken at the Post Office and again while, he was depositing the amount at Adalaj Sub Post Office, at that time, the police came for investigation and it was declared the said currency notes were fake. 12. We have thoughtfully considered the rival submissions made by learned advocates for the parties. We have also perused the impugned judgment and order as well as the evidence on record. 13. 12. We have thoughtfully considered the rival submissions made by learned advocates for the parties. We have also perused the impugned judgment and order as well as the evidence on record. 13. On overall analysis of the facts and circumstances of the case, we find that the case on hand has genesis with the day on which Dasamavrat was falling i.e. in the month of August 1999. It can be seen from the record that while accused Nos.1, 3 and 4 were on duty as Home Guards at Mehsana Kalol Highway during nocturnal hours, they found that one person dropped the bag which came to be opened by them and they found currency notes of Rs.9 lakhs which were equally divided by them which ultimately turned out to be fake currency notes. It can also be noticed that for the offence of fake currency notes, three different sessions cases have been registered by the Investigating Agency, as noted above, before the learned court of Sessions at Gandhinagar wherein in all the aforesaid three cases, Home Guard personnels as well as sister of accused No.1 i.e. Gangaben were arraigned as accused. As per the case of the prosecution, about Rs.1,60,000/- was handed over by accused No.1 to accused No.2 and out of the said currency notes, Rs.1,60,000/- came to be circulated and all the three different cases were lodged involving all the aforesaid four accused for the offence under sections 489(A)(B)(C) read with section 114 of IPC. 14. On overall appreciation of the evidence on record, we fail to notice that the Investigating Agency was well aware that three Home Guard personnels were found with the alleged fake currency notes of Rs.9 lakhs which came to be divided equally by them, meaning thereby, all the three accused were having in their possession the fake currency notes of Rs.3 lakhs each. In this regard, the Investigating Agency has not carried out investigation except as noted above, i.e. pertaining to the currency notes of Rs.1,60,000/- only. It is also pertinent to note that in all the aforesaid three cases, the four persons – the present respondents have been arraigned as the accused and the sessions cases have been registered one after another. In this regard, the Investigating Agency has not carried out investigation except as noted above, i.e. pertaining to the currency notes of Rs.1,60,000/- only. It is also pertinent to note that in all the aforesaid three cases, the four persons – the present respondents have been arraigned as the accused and the sessions cases have been registered one after another. It is also to be noted that in two previous sessions cases, the accused have been acquitted and no acquittal appeals have been filed by the State of Gujarat but against the acquittal order in the last sessions case being Sessions Case No.28 of 2004, the present Criminal Appeal is filed. 15. While scanning the evidence on record, we notice that the Investigating Agency has adopted very casual approach though heinous crime was surfaced before it as regards to finding out fake currency notes to the extent of Rs.9 lakhs. No investigation was carried out so far as accused Nos.3 and 4 are concerned though they came to be arraigned as accused in all the aforesaid three sessions cases. We see no iota of evidence so far as the aforesaid two accused are concerned in all the aforesaid three sessions cases except the allegation that all the three accused after having found the bag containing fake currency notes of Rs.9 lakhs, divided the said currency notes equally. Neither any direct or indirect evidence as regards to finding out such fake currency notes containing Rs.9 lakhs and dividing the same amongst them is produced on record. Similarly, we also notice that nowhere the prosecution has laid any evidence to link either accused No.1 or his sister Gangaben – accused No.2 for placing fake currency notes into circulation to the extent of Rs.1,60,000/- to purchase Kisan Vikas Patra in the name of accused No.2 – Gangaben and his son Pravinchandra. We did not notice any evidence which is in the nature of identifiable that the accused circulated and tendered fake currency notes for purchasing Kisan Vikas Patra on 22.12.1999 which came to be in fact seized on 28.12.1999 and in fact which were the same which were tendered by accused No.2. Indisputably, none of the witnesses have deposed that currency notes were the same as has been tendered by accused No.2. Indisputably, none of the witnesses have deposed that currency notes were the same as has been tendered by accused No.2. On the contrary, the evidence on record clearly indicates that from 22.12.1999 to 28.12.1999 currency notes which were tendered by accused No.2 came to be changed several hands which ultimately came to be recovered from the State Bank of India were the same fake currency notes as alleged. 16. In view of the aforesaid nature of evidence, we are of the considered opinion that learned trial has rightly appreciated the evidence on record and rightly recorded the finding that even if fake currency notes came to be seized which were delivered to be fake currency notes, but it could not be relatable to the accused so far as it were being tendered for purchase of Kisan Vikas Patra and the prosecution has miserably failed to establish identity of the tendered currency notes as well as identity of the currency notes which came to be seized as fake currency notes which were alleged to be handed over by the accused. In this view of the matter, reasons and ultimate findings recorded by learned trial Judge is in accordance with law. We see no reason to take any different view than the view taken by learned trial Judge. 17. Under the circumstances, this Court is of the considered opinion that learned trial Court has rightly not believed the case of the prosecution and rightly given the benefit of doubt which does not call for any interference by this Court. 18. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 19. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 20. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 20. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith. Appeal dismissed.