Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 392 (JK)

State of J&K v. Maqsood Ahmed

2021-08-02

SANJEEV KUMAR

body2021
Order Sanjeev Kumar, J.- CONCR No.17/2016 This is an application seeking condonation of 61 days delay in filing the application seeking leave to appeal on the ground that the delay is neither intentional nor deliberate but procedural one. The application, for the reasons stated therein, is allowed. Delay of 61 days in filing the application seeking leave to appeal is condoned. SLA No.17/2016 This is an application by the State seeking leave to file appeal against the judgment of acquittal dated 31.08.2015 passed by the learned Sessions Judge Rajouri in file No.13/Session on the ground that the acquittal of the respondents has caused serious miscarriage of justice and that the acquittal of the accused has shaken the confidence of common man in majesty of law. The application, for the reasons stated therein is allowed. Leave to file appeal against the judgment of acquittal dated 31.08.2015 is granted to the appellant-State. Registry to diarize the appeal. With the consent of leaned counsel for the parties the appeal is taken up for consideration. Crl A(AS) No.38/2021 1. This criminal acquittal appeal is directed against the judgment dated 31.08.2015 passed by learned Sessions Judge, Rajouri (“the trial court”) in file No13/Sessions titled State v. Maqsood Ahmed Faqir Din and Abdul Hamid, whereby both the accused i.e. respondent Nos. 1 and 2 have been acquitted of the charges under Section 489-C RPC. 2. Briefly stated, the facts leading to the filing of this acquittal appeal are that:- As per the prosecution, on 12.09.2008, the Police Station, Rajouri, on the basis of information received from reliable sources, that respondents were doing the business of counterfeit currency and were using them as genuine currency notes and both of them having travelled in Tata Sumo bearing Regd. No.JK12-1067 from Poonch via Thannamandi, alighted at Gujar Mandi, Rajouri, case FIR No.327/2008 under Section 489-C RPC was registered in the Police Station, Rajouri and investigation of the case entrusted to Vikas Dogra, Sub Inspector, who visited the spot, apprehended both the respondents and subjected them to personal search. In the search seven currency notes of Rs.1000/- denomination and two currency notes of Rs.500/- denomination were recovered from the possession of respondent No.1 and 13 currency notes of Rs.1000/- denomination and six currency notes of Rs.500/- denomination were recovered from the possession of respondent No.2. In the search seven currency notes of Rs.1000/- denomination and two currency notes of Rs.500/- denomination were recovered from the possession of respondent No.1 and 13 currency notes of Rs.1000/- denomination and six currency notes of Rs.500/- denomination were recovered from the possession of respondent No.2. The said currency notes were seized and sealed on spot and later on sent to FSL, Jammu for examination. The report from the FSL was obtained, statement of witnesses under Section 161 Cr.P.C. were recorded and after completing all legal formalities, challan was presented before the Chief Judicial Magistrate, Rajouri for judicial determination. The challan was then transferred by the Chief Judicial Magistrate, Rajouri to the Court of District Mobile Magistrate, Rajouri for disposal under law. Since offence under Section 489-C RPC was exclusively triable by the Court of Sessions as such, the case came to be committed to the Court of learned Sessions Judge, Rajouri. The trial court charge-sheeted both the respondents for commission of offence under Section 489-C RPC and called upon the prosecution to lead its evidence. PW-Showkat Hussain, PW-Yash Pal, PW-Madan Lal, PW-Romesh Chander, PW-Ranjit Singh, PW-Ikhlaq Hussain, PW-Vikas Dogra and PW-Munshi Khan were examined by the prosecution in support of its case. On the conclusion of the prosecution evidence, the statements of the respondents under Section 342 Cr.P.C. were recorded. The respondents while pleading innocence in their testimony stated that they had been implicated by the police in false and fabricated case, however, they preferred not to lead any evidence in defence. The trial court after hearing both the sides and considering the entire evidence on record came to the conclusion that the prosecution had miserably failed to establish that the currency notes recovered from the respondents was a counterfeit currency. The trial court has observed that neither the seized alleged counterfeit currency notes were produced by the prosecution during the course of trial nor the expert witness i.e. PW Javed Iqbal was examined to establish that the alleged seized currency notes were counterfeit. Accordingly, the trial court acquitted both the accused. 3. The state is aggrieved and has assailed the impugned judgment on the ground that the trial court has not correctly appreciated the evidence on record. Accordingly, the trial court acquitted both the accused. 3. The state is aggrieved and has assailed the impugned judgment on the ground that the trial court has not correctly appreciated the evidence on record. Learned counsel appearing for the appellant-State submits that the prosecution had examined all the relevant witnesses in whose presence the currency notes were recovered and, therefore, there was no reason or justification for the trial court to come to a contrary conclusion. He, however, could not explain as to why an expert witness from the FSL, who had opined that some of the currency notes recovered were counterfeit, was not examined by the prosecution. 4. Having considered the submissions of learned counsel appearing for both the sides, I am of he considered view that the judgment impugned passed by the trial court cannot be faulted on any count, particularly, the grounds urged in the appeal. With a view to establish offence under Section 489-C RPC, it was essential for the prosecution to establish, in the first instance, that the currency notes allegedly recovered from the possession of the respondents was a counterfeit currency. The only evidence that could have been led was the statement of the expert namely, Javed Iqbal, who had submitted a report after examination of the seized currency. The prosecution, for the reasons best known to it, chose not to examine the said witness. Once it is not established that the currency notes that were seized from the respondents was a counterfeit currency, whole case of the prosecution falls flat and the other evidence with regard to the recovery of alleged counterfeit currency pales into insignificance. I am, therefore, in agreement with the conclusion arrived at by the trial court that the prosecution has miserably failed to prove the commission of offence under Section 489-C RPC against the respondents. 5. I am, therefore, in agreement with the conclusion arrived at by the trial court that the prosecution has miserably failed to prove the commission of offence under Section 489-C RPC against the respondents. 5. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa ( 2015 11 SCC 124 ). 6. For the foregoing reasons, I find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.