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2017 DIGILAW 796 (GUJ)

Maheshbhai v. State of Gujarat

2017-04-12

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. Appeal No. 1451 of 2004 has been filed by the appellant-original accused, under Section 374(2) of the Cr. P.C., against the Judgment and order dated 21.08.2004 rendered in Sessions Case No. 133 of 2003 by the learned Additional Sessions Judge, 4th Fast Track Court, Banaskantha, Deesa, whereby the appellant-accused was convicted for the offence punishable under Section 489(C) of the Indian Penal Code and sentenced to undergo four years rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, further rigorous imprisonment of one year. Appeal No. 369 of 2005 has been filed by the State under Section 377 of the Code of Criminal Procedure, 1973 to enhance the sentence awarded by the learned Sessions Judge. 2. It is the case of the prosecution that complainant-Shri V.I. Patel, PSI, Dhanera Police Station received secret information on 23.07.2003 that Mahesh @ Babubhai son of Rizumal Thakkar is dealing with currency notes of Rs. 100/- and Rs. 500/- of Reserve Bank of India and he was going to come at Tea Hotel located in front of sub-station of Gujarat Electricity Board at Dhanera. On receipt of the said information, the complainant went to the site alongwith the Police Staff. At about 18:10, one person came to the hotel from the opposite side. He tried to hide his presence, however he was caught by the police and on physical checking, 192 notes of Rs. 100/- each was found from the left and right pockets of the pent which were Indian currency notes. The said currency was of light pink colour appearing as original and on inquiry about the same, the said person did not give satisfactory reply and accordingly, fake and bogus currency notes were found from the said person. In presence of panchas, a detailed panchnama was recorded between 18:15 to 19:16 hours. The said fake currency were taken into custody. The complaint to that effect came to be registered by the complainant Shri V.I. Patel, PSI, Dhanera Police Station and on the basis of that, an offence was registered vide C.R. No. 56 of 2003 for the offence punishable under Section 489(a) and (b) of the IPC. Thereafter, further detailed inquiry/investigation was carried out. During the investigation, the accused was arrested and he was produced before the learned trial Court and remand was obtained. Thereafter, further detailed inquiry/investigation was carried out. During the investigation, the accused was arrested and he was produced before the learned trial Court and remand was obtained. Then, investigation was handed over to Police Inspector, LCB Police Station. 3. After collecting the evidence by the Investigating Agency, charge-sheet was filed before the learned Judicial Magistrate First Class. As the said case was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class, committed the case to learned Sessions Court under Section 209 of the Criminal Procedure Code. 4. On the basis of above allegations, charge was framed vide Exh. 3 against the appellant-accused and read-over and explained to the appellant-accused for the alleged offences and plea was recorded, wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried. 5. In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences. The defence has also examined seven witnesses in support of his case. 6. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant have submitted that a false case is filed against him. 7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions, the present appellant-original accused preferred Appeal No. 1451 of 2004 and State has preferred appeal being Criminal Appeal No. 369 of 2005 for enhancement of sentence. 8. Heard Mr. S.L. Vaishya, learned advocate for the appellant-accused and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 9. Mr. S.L. Vaishya, learned advocate contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He contended that so far as quantum of the currency notes is concerned, it cannot be said that huge currency notes were recovered from the possession of the appellant. He then contended that the panch who drew the panchnama in the instant case is habitual panch and therefore, his oral version cannot be believed. He contended that so far as quantum of the currency notes is concerned, it cannot be said that huge currency notes were recovered from the possession of the appellant. He then contended that the panch who drew the panchnama in the instant case is habitual panch and therefore, his oral version cannot be believed. The defence witnesses were examined, however, the learned trial Court has not properly appreciated and has not considered the alibi of the present appellant-accused. He further contended that to protect the appellant-accused, his wife made an application before the DSP, Palanpur and District Anti Corruption Bureau, Palanpur stating that her husband has been wrongly trapped in the alleged offence. He then contended that some leniency may be awarded to him by reducing the sentence as appellant-accused is a poor person and is carrying a tea stall. He then contended that the panch has enmity with the present appellant-accused over the Dhanera Nagarpalika election and hence, by keeping grudge of the same, present appellant-accused has been wrongly trapped in the alleged offence. Therefore, considering the above aspects, the learned trial Judge committed grave error by convicting the appellant-accused for the alleged offence and therefore, he prayed to allow this appeal by quashing and setting the judgment and order of the learned trial Court. 10. As against this, Mr. N.J. Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He contended that in presence of panch, huge quantity of fake currency notes were recovered from the possession of the appellant-accused. In a statement recorded under Section 313 of the Code of Criminal Procedure, the appellant-accused did not disclose anything regarding the possession of the said fake currency notes and alibi. So far as Criminal Appeal No. 369 of 2005, i.e. appeal filed by the State of Gujarat for enhancement of sentence is concerned, Mr. Shah has contended that as stated above, fake currency notes were recovered from the possession of the appellant-accused, which is proved beyond reasonable doubt, sentence awarded to the appellant is inadequate. He has further contended that the learned Special Judge has committed error in showing leniency to undeserving person. Shah has contended that as stated above, fake currency notes were recovered from the possession of the appellant-accused, which is proved beyond reasonable doubt, sentence awarded to the appellant is inadequate. He has further contended that the learned Special Judge has committed error in showing leniency to undeserving person. He has also contended that the learned Special Judge has failed to consider the provisions of 489(c) of the Indian Penal Code, 1860. Mr. Shah has further contended that when the recovery of fake currency notes from the possession of the appellant-accused is proved, the appellant shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. He, therefore, contended that the sentence imposed upon the appellant is required to be enhanced. He therefore, prayed to dismiss the appeal 11. I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 12. In present case, on receiving the information by the PSI that present appellant-accused was dealing with fake currency notes, he called two panchas and went to the place of information. When the appellant-accused came there, a search was made and from the possession of the appellant-accused, huge fake currency notes were recovered, which the appellant-accused could not explain properly. Further, the defence has examined seven witness, however, the appellant-accused could not disclose probable defence. It appears that pending the trial, it appears that the appellant-accused did not make any application under Section 173(8) of the Code of Criminal Procedure, 1973 for further investigation. Further, the incident took place 23.07.2003 and wife of the appellant-accused made an application to re-investigate the matter by handing over the investigation to higher officer on 02.12.2003 i.e. after a period of seven months, which clearly shows an afterthought. The request made by learned advocate for the appellant-accused to show some leniency to the appellant-accused by reducing the sentence as appellant-accused is a poor person and is carrying a tea stall. The request made by learned advocate for the appellant-accused to show some leniency to the appellant-accused by reducing the sentence as appellant-accused is a poor person and is carrying a tea stall. The said request cannot be acceded to considering the fact that the offence is very grave and fake Indian currency notes have the potential to affect the economic stability of the country, which negatively impact on nation's economy. 13. I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the appellant-accused. Therefore, no interference is required. The judgment and order of conviction dated 21.08.2004 rendered in Sessions Case No. 133 of 2003 by the learned Additional Sessions Judge, 4th Fast Track Court, Banaskantha, Deesa is hereby confirmed. The present Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the applicant-accused shall stand cancelled and he is directed to surrender before the jail authority within a period of four weeks from today. 14. So far as the Criminal Appeal No. 369 of 2005 filed by the State for enhancement of the sentence is concerned, the same cannot be considered after a period of 12 years and therefore, the said appeal has no weightage. Under these circumstances, the appeal for the enhancement of the sentence is required to be dismissed and the same is also hereby dismissed.