Prabhakar vs High Court Bench At Aurangabad
2010 Latest Caselaw 195 Bom

                                                                       (1)                                   CRI. APPEAL 152.2010

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                                                                             
                                  CRIMINAL APPEAL NO. 152 OF 2010

     1. Prabhakar S/o Narayan Patlola




                                                                               
        Age : 27 years, Occu.: Agri.,
        R/o. Bolakpalli, Mandal Pitalam,
        Dist. Nizamabad (Andhra Pradesh)




                                                                              
     2. Venkatesh S/o Gangaram Chanda
        Age : 34 years, Occu.: Photographer,
        R/o. Warni, Presently Chaitanya Colony,
        Old Baswada Road, Nizamabad
        (Andhra Pradesh)                       .. APPELLANTS




                                                           
            VERSUS
     The State of Maharashtra
     (Copy to be served on G.P. of
                                  
     High Court Bench at Aurangabad)           .. RESPONDENT
                                 
                                ...
     Smt. Sadhana S. Jadhav, Advocate for the Appellants
     Mr. B.J. Sonawane, APP for the respondent
                                ...
      


                                      CORAM        :  V.R. KINGAONKAR, J.

DATE OF RESERVING THE JUDGMENT : 16TH NOVEMBER' 2010

DATE OF PRONOUNCING THE JUDGMENT : 25TH NOVEMBER' 2010

JUDGMENT:-

1. Challenge in this Appeal is to judgment

rendered by learned Additional Sessions Judge,

Biloli, in Sessions Case no. 25 of 2009, whereby both

the appellants have been convicted for offences

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punishable under section 489-B r/w. section 34 of the

Indian Penal Code and are sentenced to suffer R.I.

for 7 years each and to pay fine of Rs.5000/- each in

default to suffer R.I. for six months. They are also

convicted and sentenced for the offences punishable

under section 420 r/w. 34 of the Indian Penal Code

and have been sentenced to suffer R.I. for period of

two years each and to pay fine of Rs.1000/- each in

default to suffer R.I. for two months. Besides,

appellant no.1-Prabhakar is further convicted for the

offence punishable under section 489-C of the Indian

Penal Code and is sentenced to suffer R.I. for five

years and to pay fine of Rs.5000/- in default to

suffer R.I. of six months. So also, appellant no.2-

Venkatesh is convicted for the offences punishable

under section 489-A and 489-D of the Indian Penal

Code and has been sentenced to suffer R.I. for period

of seven years and to pay fine of Rs.5000/- in

default to suffer R.I. for six months on each count.

2. It is alleged that both the appellants

allegedly attempted to use counterfeit currency notes

of Rs.500/- denomination which were falsely

(3) CRI. APPEAL 152.2010

represented as genuine currency notes and were got

printed by appellant no.2.

3. The prosecution case, stated briefly, is

that on 7th June, 2009, appellant no.1-Prabhakar

visited a beer bar styled as "Alankar Beer Bar,

Degloor" around its business closing hours. He

ordered couple of beer bottles. He gave currency

note of Rs.500/- denomination to the Manager of the

Beer Bar. The Manager suspected that the currency

note was counterfeit and hence called upon appellant

no.1-Prabhakar to tender another currency note.

Another currency note of Rs.500/- denomination was

produced and given by appellant no.1-Prabhakar. The

Manager noticed that both the currency notes bore

identical serial numbers. His belief that the

currency notes were counterfeit, was thus confirmed.

He, therefore, telephonically informed the Police

that the customer i.e. appellant no.1-Prabhakar

attempted to deceive him by giving the counterfeit

currency note of Rs.500/- denomination. The Police

arrived at the spot within a short while. They took

away appellant no.1-Prabhakar alongwith the two

(4) CRI. APPEAL 152.2010

counterfeit currency notes which were in his

possession. They also took away motorbike used by

appellant no.1-Prabhakar which was parked outside the

beer bar. The Police recovered 30 counterfeit

currency notes of Rs.1000/- denomination, 9

counterfeit currency notes of Rs.500/- denomination,

46 currency notes of Rs.100/- denomination and 1

counterfeit currency note of Rs.50/- denomination

from the tool box of the dickey of the motorbike of

appellant no.1-Prabhakar in pursuance of his

confessional statement recorded under section 27 of

the Evidence Act. The investigation further revealed

that counterfeit currency notes were prepared by

appellant no.2-Venkatesh. The arrest of appellant

no.2-Venkatesh gave rise to recovery of computer,

printer, paper-cutter machine, compact discs

containing Computer programme used for preparation of

the counterfeit notes and the stock of paper used

while printing such fake currency notes. Appellant

no.2-Venkatesh is a photographer by profession. The

Police gathered evidence to the effect that both the

appellants were dealing in misuse of such counterfeit

currency notes by putting them in use for personal

(5) CRI. APPEAL 152.2010

benefits like purchasing of cigarettes etc. The

manner in which the counterfeit notes were prepared

and printed by using the computer, printer and the

C.D. programme was made explicit on demonstration of

the process by appellant no.2-Venkatesh whilst he was

in the Police custody. On basis of the material

gathered during course of investigation, both the

appellants were chargesheeted for the offences

punishable under section 489-A, 489-B, 489-C, 489-D

and section 420 r/w. 34 of the Indian Penal Code.

A Charge was framed against them vide exhibit-9.

Both of them pleaded 'not guilty' in response to the

charge. Their defence was of total denial. They

asserted that they have been framed in a false case.

No particular defence was raised by either of them.

4. The prosecution examined in all 14 witnesses

in support of its case. The prosecution also placed

on record several documents, including the

counterfeit currency notes and the machinery/material

used while printing the counterfeit currency notes.

The learned Sessions Judge held that appellant no.1-

Prabhakar attempted to use the two counterfeit

(6) CRI. APPEAL 152.2010

currency notes of Rs.500/- denomination at Alankar

Beer Bar in the evening of 7th June, 2009 though he

had the knowledge that both the currency notes were

not genuine. The learned Sessions Judge came to the

conclusion that appellant no.1-Prabhakar made false

representation to the Manager of the Beer Bar that

the currency notes were genuine and purchased two

beer bottles under such false representation. The

learned Sessions Judge however held that appellant

no.1-Prabhakar is not proved to be the maker of the

fake currency notes and is therefore not liable to be

convicted for the offences under section 489-A and

489-D of the Indian Penal Code.

5. The learned Advocate for the appellants

would submit that appellant no.1-Prabhakar could not

have any intention to use counterfeit currency notes

with knowledge that they were not genuine. It is

argued that there was communication gap between the

Manager of the Beer Bar and appellant no.1 -Prabhakar

due to language barrier and, therefore, the FIR was

lodged due to misunderstanding. It is further argued

that the evidence on record does not establish any

(7) CRI. APPEAL 152.2010

criminal act of appellant no.2-Venkatesh. It is

argued that the confessional statement of appellant

no.1-Prabhakar or appellant no.2-Venkatesh are of no

avail because no recovery was effected in pursuance

to such statements. It is pointed out that the

computer, printer and other equipments were available

in the open market and there was nothing to infer

that they were the particular instruments used in

printing of the counterfeit currency notes recovered

from possession of appellant no.1-Prabhakar. It is

submitted, therefore, by learned Advocate of the

appellants that both of them deserve benefit of

reasonable doubt. Hence it is urged to allow the

Appeal. Per contra, the learned Assistant Public

Prosecutor supports the judgment of conviction and

sentence.

6. Considering the nature of the charge, the

points which arise for determination are as stated

below:-

(I) Whether it is proved that appellant no.1- Prabhakar attempted to use counterfeit notes of Rs.500/- in the evening of 7.6.2009 at Alankar Beer Bar,

(8) CRI. APPEAL 152.2010

Degloor with knowledge that the currency notes were fake?

(II) Whether it is proved that appellant no.1-Prabhakar was in possession of 4

counterfeit currency notes of Rs.500/- denomination alongwith large number of

counterfeit currency notes of Rs.1000/- and other denominations?

(III) Whether it is proved that both the appellants shared common intention while

distributing/using the counterfeit currency notes?

(IV) Whether it is proved that appellant no.2-Vyankatesh prepared forged/counterfeit

currency notes by using the computer,

printer and the CDs of the computer programme?

                           (V)     Whether   it   is   proved   that   the 
                           appellants,   in     pursuance   to   their   common 

intention, mis-represented to the Manager of the Beer Bar or any other person that

the currency notes were genuine and obtained unlawful gains by their such acts?

(VI) Whether the impugned judgment of conviction and sentence is legal and proper?

(9) CRI. APPEAL 152.2010

7. Before I proceed to scrutinize the

prosecution evidence, it may be noticed that Degloor

is situated on border of State of Maharashtra and

State of Andhra Pradesh. It has come on record that

there is frequent egress and ingress of neighbouring

inhabitants of Andhra Pradesh to Degloor and vice-a-

versa. The native village of appellant no.1-

Prabhakar is in the proximity of Degloor town. Both

the appellants hail from two different places

situated in adjacent Nizamabad district of Andhra

Pradesh. There is no dispute about the fact that

appellant no.1-Prabhakar visited Alankar Beer Bar in

the relevant evening at about business closing hours.

There is also no dispute about the fact that he had

tendered the currency note of Rs.500/- denomination

while purchasing two beer bottles and the Manager

asked him to give substitute to that currency note of

which genuineness was suspected. The substituted

currency note also was found to bear the same serial

number and as such the Police party was called at the

Beer bar.

(10) CRI. APPEAL 152.2010

8. So far as appellant no.1-Prabhakar is

concerned, there is direct evidence of P.W.1-Shankar,

who is Manager of the Beer bar and that of P.W.5-

Shivaji, who was working as the hotel's servant.

Their versions, un-mistakably, go to show that

appellant no.1-Prabhkar visited the Beer Bar at about

10.30 pm. on 7.6.2009. Their versions categorically

show that he ordered for two beer bottles. Their

versions also purport to show that P.W. Shankar

(Manager) informed appellant no.1-Prabhakar that the

currency notes could not be used. They also

confirmed the fact that appellant no.1-Prabhakar had

been to the Beer Bar on motorcycle which was parked

in its front. There is no dispute about the

genuineness of the spot panchanama (Exhibit 26) drawn

at the place of the Beer bar.

9. Cross-examination of P.W. Shankar purports

to show that he understands but is unable to fluently

speak Telugu language. He admits that normally he

used to speak in Hindi language. It is pointed out

by the learned Advocate, from cross-examination of

P.W. Shankar that appellant no.1-Prabhakar was

(11) CRI. APPEAL 152.2010

telling the Manager that it was a genuine currency

note. He also admits that appellant no.1-Prabhkar

was insisting him to retain Rs.160/- for the couple

of beer bottles instead of Rs.100/-. This conduct

shows that he wanted to use the fake currency note.

He admits that since appellant no.1-Prabhakar was not

paying the bill of the purchased beer bottles,

employees of the beer bar brought the motorbike of

appellant no.1-Prabhakar from the parking lot and

parked it in front of the Alankar Beer bar.

10. Considering the direct evidence, which is

not materially affected inspite of searching cross-

examination, it will have to be stated that appellant

no.1-Prabhakar used the two fake currency notes under

the pretext of purchasing the two bottles of beer.

It is explicit that he had gone to the said Beer bar

at the business closing hours with a view to

hurriedly take away the beer bottles on making

payment vide the counterfeit currency note of

Rs.500/- denomination. He was probably under the

impression that at such business closing time, the

Manager and the other staff of the beer bar would not

(12) CRI. APPEAL 152.2010

be able to pay much attention to the currency note of

Rs.500/- denomination. Be that may as it is, it is

duly proved that appellant no.1-Prabhakar used the

fake currency notes in that evening.

11. Another question is whether appellant no.1-

Prabhkar can be attributed knowledge about the

currency notes being counterfeit? It has come on

record that not only that he was having these two

counterfeit currency notes of Rs.500/- denomination

each but subsequently a large number of counterfeit

currency note of Rs.1000/- denomination alongwith

other counterfeit currency notes were recovered at

his instance from the tool box of his motorbike.

This is a glaring fact. It is not the contention of

appellant no.1-Prabhakar that the motorbike did not

belong to him. The Manager and staff members of Beer

bar had actually seen appellant no.1-Prabhkar while

coming to the Beer Bar on the motorcycle.

12. The prosecution case is further corroborated

by the version of P.W.2-Chandrashekhar. There is no

serious infirmity in the testimony of P.W.

Chandrashekhar. He is an independent witness and has

(13) CRI. APPEAL 152.2010

no business to speak lie. The testimony of P.W.

Shivaji reveals that in his presence the spot

panchanama (exhibit 26) was drawn and so also the

seizure of the two currency notes was effected vide

panchanama (exhibit 25). The report of Expert

(exhibit 21) clearly shows that the currency notes

sent for examination and opinion were found to be the

counterfeit notes.

13. There is testimony of P.W. 6 Laxmansing in

support of a large stock of counterfeit currency

notes recovered from the dickey of motorbike of

appellant no.1-Prabhakar in pursuance to his

statement, and after preparing memorandum panchanama

(exhibit 28). Thus, there is sufficient evidence to

infer that appellant no.1-Prabhakar had the knowledge

that the currency notes used by him were of

counterfeit nature. It is duly proved that he had

used the two counterfeit currency notes of Rs.500/-

denomination in the Beer Bar with a view to purchase

two beer bottles. Considering these circumstances,

the learned Sessions Judge was right in convicting

appellant no.1-Prabhakar for the offences of using

(14) CRI. APPEAL 152.2010

the counterfeit currency notes, and cheating the

Manager of Alankar Beer Bar by making false

representation that they were genuine and obtaining

the unlawful gain of two beer bottles.

14. P.W. 4 Shaikh Rafik narrated as to how both

the appellants together visited his pan shop situated

at Khanapur intersection in the outskirts of Degloor.

His version reveals that they had purchased two

packets of cigarettes from him. They gave him a fake

currency note which was lateron burnt away. He

identified both the appellants as the same customers

to whom he had sold the cigarette packets. He has no

business to falsely implicate the appellants as his

customers. He is an independent witness. He has no

animosity against the appellants. It is therefore

manifest that both the appellants had shared the

common intention while using the fake currency note

in order to purchase two packets of cigarettes from

the pan shop of the P.W. Shaikh Rafik in the

proximity of period of recovery of counterfeit notes

and the articles like computer, compact disc etc.

(15) CRI. APPEAL 152.2010

15. On close scrutiny of version of P.W. 7

Sachin, it is amply proved that while appellant no.2-

Venkatesh was in Police custody, the Police took him

alongwith appellant no.2-Venkatesh and another panch

to Banswada (A.P.). The residential house of

appellant no.2-Venkatesh was searched in his

presence. He corroborates search and seizure

panchanama (exhibit 32). His version lends

corroboration to the prosecution story that a

computer alongwith a C.P.U., monitor, deskjet

printer, scanner, copier and a Harrison brand paper

cutter were recovered from house of appellant no.2-

Venkatesh. The recovery of the said articles is

relevant. It is duly proved that the Police

recovered two Compact Disc (article no.12) during the

course of search and seizure of the residential house

of the appellant no.2-Venkatesh. It is admitted by

P.W. Sachin that on purchasing of inkjet printer or

deskjet printer, the Company provides Compact Disc

(C.D.) of the software programme for use of the

printer.

(16) CRI. APPEAL 152.2010

16. The testimony of P.W. 11-Yusuf, to whom one

fake currency note was given by the appellants, go to

show that appellant no.1-Prabhakar had purchased the

cigarette packet from his shop alongwith a toothpaste

tube and one Fair and Lovely brand cream tube by

giving counterfeit currency note of Rs.500/-. That

counterfeit currency note was recovered from him at

instance of appellant no.1-Prabhakar under a

panchanama. He identified the counterfeit currency

note (article 40). It is therefore manifestly clear

that appellant no.1-Prabhakar knowingly indulged in

the use of counterfeit currency notes.

17. The question of significance is whether

appellant no.2-Venkatesh was found in possession of

the material/articles/instruments which could be used

to prepare counterfeit currency notes? The version

of P.W. 14 P.S.I. Bhimsingh Chavan and the version of

Panch witnesses lend corroboration to the fact that

appellant no.2-Venkatesh gave information to the

effect that he had concealed the computer, printer,

scanner and other articles at his residential house

situated at Banswada (A.P.). Therefore, P.S.I.

(17) CRI. APPEAL 152.2010

Bhimsingh Chavan took appellant no.2-Venkatesh and

the panchas to his residential house. The recovery

of the said articles was effected vide seizure

panchanama (exhibit 32). The testimony of P.W.

P.S.I. Bhimsingh Chavan reveals that on information

furnished by appellant no.2-Venkatesh, particular

C.D.s and the software utilized for preparation of

the fake currency notes came to be recovered in

pursuance to his statement dated 13.6.2009 prepared

vide memorandum (exhibit 33). Two C.D.s were thus

recovered at his instance vide panchanama exhibit 34.

The version of P.W. P.S.I. Bhimsingh Chavan goes to

show that appellant no.2-Venkatesh gave demonstration

pertaining to use of the C.D.s for printing of the

counterfeit currency notes. The panchanama (exhibit

36) was drawn after the demonstration was

successfully shown by appellant no.2-Venkatesh in

the premises of the Police Station.

18. Can the demonstration of printing of the

fake currency notes be regarded as discovery of fact

under section 27 of the Evidence Act, is the question

raised by the learned Advocate for the appellants.

(18) CRI. APPEAL 152.2010

It is important to notice that both the C.D.s were

recovered in pursuance to the statement of appellant

no.2-Venkatesh as per section 27 of the Evidence Act.

Though, the confessional part of the statement of the

appellants and the confessional part of the recorded

statements of the witnesses, will have be scrapped

and cannot be considered, yet the fact remains that

the place where the two C.D.s were concealed by

appellant no.2-Venkatesh was discovered at his

instance. This is a discovery of fact. The further

discovery at his instance is regarding the

methodology of using the computer, printer and the

C.D. programme for the purpose of preparing the

counterfeit currency notes. He gave demonstration of

the methodology in presence of the Panchas to P.W.

P.S.I. Bhimsing Chavan. The demonstration given by

appellant no.2-Venkatesh cannot be regarded as his

confessional statement to the Police. It has to be

treated as "Discovery of Fact" in pursuance to his

earlier confessional statement based upon which the

two C.D.s were recovered. Unless the computer,

printer and other articles recovered from his house

could be shown to be instruments that could be used

(19) CRI. APPEAL 152.2010

for preparation of fake currency notes, the recovery

perhaps by itself would not have been of any

evidentiary value. The said recovery of the

instruments, the further recovery of the two C.D.s in

pursuance to his confessional statement under section

27 of the Evidence Act and the culmination of such

discovery of fact due to the demonstration given by

him would certainly be admissible in the evidence.

Therefore, the demonstration given by him will not

amount to his confession of the guilt and will be

discovery of the fact at his instance in the context

of the functional use of the instruments which could

be utilised for preparing the fake currency notes.

19. On careful consideration of the entire

record, I have no hesitation in holding that the

relevant charges have been duly proved against both

the appellants. It is proved that both the

appellants, in furtherance of their common intention

were found using as genuine the counterfeit currency

notes. Is is also proved that appellant no.1-

Prabhakar had knowledge that the currency notes in

his possession were of counterfeit nature. It is

(20) CRI. APPEAL 152.2010

duly proved that both the appellants, in furtherance

of their common intention falsely represented that

the currency notes were genuine and obtained unlawful

gains for themselves by purchasing cigarette packets

and other articles from the traders. It is duly

proved that the appellant no.2-Venkatesh prepared

counterfeit currency notes and was found in

possession of the instruments which could be used for

such purpose. Considering gravity of the offence

proved against the appellants, the sentence awarded

to them appears to be quite legal and proper. Thus,

there is no merit in the Appeal.

20. In the result, the Appeal is dismissed. The

impugned judgment of conviction and sentence rendered

in Sessions Case no. 25 of 2009 stands confirmed.

Sd/-

[V.R. KINGAONKAR, J.] arp