Mohammad Yunus Abdul Mannan ... vs The State Of Maharashtra
2012 Latest Caselaw 152 Bom

                           1                               Cri. Appeal 342/2012


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                         
                          BENCH AT AURANGABAD




                                             
                     CRIMINAL APPEAL NO. 342/2012


     Mohammad Yunus Abdul Mannan Shaikh,




                                            
     Age : 18 years, Occu. Labour,
     R/o Balugram, Tq. Pallagacchi,
     Dist. Saheb Ganj, State : Jharkhand.
                                                                    ...Appellant.
           Versus




                                  
     The State of Maharashtra.
                       ig                                     ...Respondents.

                                      .....
                     
     Shri H.D. Deshmukh, Advocate for the appellant.
     Shri S.N. Kendre, A.P.P. for State.
                                     .....
      


                                   CORAM : T.V. NALAWADE, J.

DATED : 09th October, 2012

JUDGMENT:-

1. The appeal is filed against judgment and order of

Sessions Case No. 21/2012 which was pending in the Court of

Additional Sessions Judge, Shrirampur, District Ahmednagar. The

appellant is convicted and sentenced for offence punishable under

section 489 (B) of the Indian Penal Code.

2. The facts leading institution of the appeal can be

stated as follows.

2 Cri. Appeal 342/2012

The incident took place on 25/09/2011. The original

complainant Ravindra Shende owns a shoe shop near S.T. stand

of Newasa (Khurd). On that day when he and his employee

Mayur Pandit were present in the shop at about 4.30 p.m., one

unknown customer entered the shop. He said that he wanted to

purchase a pair of lady Chappal. After showing various Chappals

to him, he approved one Chappal. For making payment of the

price of pair of Chappal, Rs.100/-, the customer gave currency

note of Rs.1,000/- denomination. The complainant returned the

amount of Rs.900/- to the said customer.

3. After some time of leaving of the customer, the complainant

suspected about the currency note of Rs.1,000/- and then he went

towards side where the customer had gone. He and his employee

held the customer at S.T. stand and they brought him to the shop.

There was no pair of Chappal purchased by him with the

customer. The complainant insisted for return of his amount of

Rs.900/- and he took the amount of Rs.900/-, which he had given

to the said customer, from the customer. He returned the

currency note of Rs.1,000/- denomination to the customer. As

Ravindra Shende had suspicion that it was counterfeit note, he

kept the customer in the shop and he contacted the police. The

3 Cri. Appeal 342/2012

Police came to the shop. It transpired that the customer had two

such currency notes with him. The Police took the customer and

the currency notes with them to Newasa Police Station. The

report of Ravindra Shende came to be recorded on 27/09/2011

and on that basis Crime No. I-195/2011 came to be registered

against this customer for offences punishable under section

489(B) of the Indian Penal Code. The two currency notes came to

be taken over under panchanama.

4. During investigation, the police made inquiry with

neighbouring shop owners. They found that this customer had

entered the shop of one Dnyandev Mhaismale but Dnyandev had

not sold the footwear as Dnyandev had no change for giving the

remaining amount to the customer. Currency note of Rs.1,000/-

was offered to Dnyandev also by this customer.

5. Police forwarded the aforesaid two currency notes to Nashik

Indian Security Press. Opinion was collected from the Press that

both the currency notes were counterfeit. During investigation,

the associate of the appellant came to be arrested after few days

but nothing was recovered from him. The charge sheet came to

be filed against these two persons for aforesaid offence.

4 Cri. Appeal 342/2012

6. In the trial Court, the prosecution examined in all eight

witnesses. The witness on the panchanama of the seizure of the

two currency notes was required to be cross examined for the

State, as in initial examination he tried to say that the

panchanama was not drawn as per his say. Subsequently, during

cross examination made by learned A.P.P., he admitted the

contents of the panchanama and it was proved in his evidence.

The trial Court has believed all the witnesses. As nothing was

recovered from the other accused and there was evidence only

against the appellant, the other accused came to be acquitted.

7. This Court has heard arguments of both the sides. Original

record is perused. Much was argued for the appellant in respect

of delay caused in giving of F.I.R. and in respect of the

circumstances that the panch witness turned hostile. The fact that

the two currency notes produced in the Court are counterfeit

currency notes is however not disputed. Learned A.P.P.

supported the decision of the trial Court. Some argument was

advanced for the appellant for taking lenient view as no other

crime was registered against him in the past.

8. Ravindra Shende (P.W.2) has given evidence that at about

4.00 p.m. to 4.30 p.m. on 25/09/2011, the appellant / accused

5 Cri. Appeal 342/2012

entered his shop and after purchasing lady footwear, he handed

over currency note of Rs.1,000/- denomination. He deposed that

as the price of the footwear was Rs.100/- he returned Rs.900/- to

the accused. He deposed that after some time when he had

discussion with his employee Mayur Pandit (P.W. 1), he had

suspicion about currency note and so they went towards S.T.

stand where the accused had proceeded. He has deposed that

they traced the accused in the vicinity of S.T. stand and they

brought him to the shop. He has deposed that he took back his

amount of Rs.900/- which was still with the accused and he

returned the currency note of the accused to him. He has

deposed that he contacted police, the Police came to the shop

and Police took the accused to the Police Station. He has

deposed that he followed them to Police Station and Police

recovered two currency notes of Rs.1000/- denomination from the

possession of the accused. He has given evidence that as it was

Sunday and as Police wanted to confirm that the currency notes

were counterfeit, his report was not recorded by police on that day

and his report came to be recorded on 27//09/2011 when it was

confirmed from the cashier of State Bank of India Branch Newasa

that the two currency notes were counterfeit. F.I.R. of Ravindra is

duly proved at Exh. 13 and it is consistent on material points of

substantive evidence of Ravindra.

6 Cri. Appeal 342/2012

9. The evidence of Mayur Pandit (P.W.1) is similar to the

evidence of Ravindra. Though name of Mayur Pandit (P.W.1) is

not mentioned in F.I.R., there is no reason to disbelieve Mayur in

view of nature of evidence given by him. Further, there is not

only the evidence of Mayur Pandit, there is evidence of two other

witnesses which can be used as circumstantial evidence as

against the appellant / accused. Dnyandev Mhaismale (P.W.5)

owns a similar shop which is in the vicinity of bus stand, Newasa.

He has deposed that on that day between 4.30 p.m. and 5.00

p.m., the accused had entered his shop and he wanted to

purchase footwear worth Rs.100/- and the accused had tendered

him a currency note of Rs.1,000/-. He has deposed that as he

had no change, the customer left his shop. He has deposed that

subsequently he came to know that after his shop, the accused

had gone to the shop of Ravindra and he had used same

currency note. Ramnath (P.W.6) is also having a shop though

different articles are sold in his shop. He has deposed that when

he heard about the arrival of police and action taken against the

accused, he went to the shop of Ravindra and there he learnt that

the accused had used counterfeit note of Rs.1,000/-

denomination.

7 Cri. Appeal 342/2012

10. Some discrepancy is brought on record in the cross

examination of Ravindra (P.W.2) and Mayur Pandit (P.W.1). Two

currency notes are produced on the record and they are having

different numbers. The currency note, Article "A" is identified by

Mayur Pandit (P.W. 1) as the note tendered by accused when

Ravindra (P.W.2) identified currency note which is marked as "B".

This Court holds that this discrepancy can not go to the root of the

case as in the F.I.R. no such mention was made by Ravindra.

The F.I.R. shows that in the presence of Ravindra, both currency

notes were recovered and their description was given in F.I.R.

which is at Eh. 13.

11. Rajendra (P.W.3) a panch witness on the seizure

panchanama dated 27/09/2011 was cross examined by learned

A.P.P.. His evidence shows that he accepted all the suggestions

given during cross examination by the A.P.P. and he again

accepted all the suggestions given to him during cross

examination taken by defence counsel. He went to the extent of

admitting that he used to visit Police station to sign panchanama

and he is a stock panch witness of the Police. He went to the

extent of admitting that he never took care to read contents of the

document as the documents were prepared by police. In view of

nature of this evidence, this Court holds that no reliance can be

8 Cri. Appeal 342/2012

placed on the evidence of Rajendra (P.W.3). In view of the

evidence of aforesaid three shop owners and Mayur showing that

on 25th itself currency notes were found with the accused, not

much weight can be given to the panchanama shown to be

prepared on 27/09/2011. For the same reason, there is no need

to discuss the evidence of Satish Jadhav (P.W.7) P.S.O. who

prepared this panchanama.

12.

Ravindra Ghunghashe (P.W.4) was working as Police

Constable. He is examined to prove that the aforesaid notes were

carried by him to Indian Security Press and he produced

muddemal along with covering letter in sealed envelope. The

document at Exh. 19 is consistent with his evidence. In the

evidence of Satish Jadhav (P.W. 7) the other record regarding

muddemal property is duly proved. This record Exh. 23 and 24 is

consistent with the oral evidence. Vasant Palve (P.W. 8) did

some investigation and his evidence shows that the muddemal

was sent to Indian Security Press when he made investigation.

The record of Indian security Press which is at Exh. 37 shows that

these two currency notes are counterfeit notes. The reasons for

the same are mentioned in Exh. 37. This record is consistent with

the case of complainant.

9 Cri. Appeal 342/2012

13. It was argued for the appellant that when the incident

took place on 25th, the report came to be recorded on 27th and the

accused came to be formally arrested on 27th. It was submitted

that this delay has created reasonable doubt about case of the

prosecution. This Court holds that this submission is not

acceptable. Police could have shown date of incident as

27/09/2011, if there was intention to concoct the case. The

reason is given by the complainant Ravindra Shende (P.W.2) that

Police wanted to confirm that currency notes were really

counterfeit and they confirmed it through the employees of the

State Bank of India. It can be said that Police could have

registered the crime and they could have taken such steps

subsequently also. It can be said that it was mistake on the part

of police to do such thing but due to such mistake of investigating

agency, no doubt is created about case of the prosecution and no

benefit of this circumstance can be given to the accused.

14. It appears that for accused reliance was placed on

2009 ALL MR (Cri) 2062 (Nilesh Naik Vs. State of Goa) in the

trial Court. In this case, this Court has discussed importance of

lodging F.I.R. immediately after incident. The facts and

circumstances of each and every case are always different. This

Court has no hesitation to hold that in view of facts of this case

10 Cri. Appeal 342/2012

delay has not created reasonable doubt about the case of

prosecution and the delay has not created doubt about credibility

of the prosecution witnesses. It is already observed that no

importance can be given to so-called seizure panchanama as the

notes were already recovered from the accused on 25th.

15. Alternatively it was submitted for the appellant that as

two notes are shown to be recovered from possession of accused,

the case may fall under section 489 (C). This submission is not at

all acceptable. There is specific evidence given by at least three

witnesses to show that at one place the accused attempted to

use counterfeit currency note and at other place he actually used

this counterfeit currency note. Though there is no record like

purchase bill in respect of pair of shoes, this Court is required to

keep in mind that small shop keepers do not prepare such record.

This Court sees no reason to disbelieve the shop owners and

Mayur. The appellant was not known to them and there was no

reason for them to make false allegation against him.

16. For the prosecution, reliance was placed on the case

reported in 1995 CRI. L. J. 2658 (Supreme Court) Ponnuswamy

Vs. State). The facts of this case show that when the accused

was found in possession of forged currency note and he did not

11 Cri. Appeal 342/2012

offer explanation as to where from he had obtained the currency

notes, the conviction given for offences punishable under sections

489(B) and 420 of the Indian Penal Code was upheld. In the

present case also it needs to be kept in mind that not only one but

two counterfeit currency notes of Rs.1,000/- denomination were

recovered from this boy who had just crossed age of 18 years. It

can be said that it was necessary for him to give information as to

from where he had collected the two notes. He was not having

any other amount as per the record. So, this Court holds that the

punishment given for offence punishable under section 489 (B) of

the Indian Penal Code is proper.

17. For the appellant reliance was placed on some reported

cases like:-

(i) 2011 ALL MR (Cri) 3717 Bombay High Court

(Abdul Aahad Hajam Vs. State of Maharashtra)

(ii) 2010 ALL MR (Cri) 2512 Bombay High Court (Javed Abdul Aziz Shaikh Vs. State of Maharashtra).

(iii) IX - 1995 (3) T.J. Mohan Vs. State Madras High Court.

In all these cases, the High Court has observed that it is

necessary for prosecution to prove that it was within knowledge

of the accused that the currency notes were counterfeit and he

had tried to use them as genuine. The facts and circumstances of

each and every case are always different. Relevant facts and

12 Cri. Appeal 342/2012

circumstances of this case are already discussed and they show

that knowledge is easily inferable. This Court holds that the

observations made by High Courts are of no use and further there

is the case of Supreme Court showing that the burden is also on

the accused to explain the things. In absence of such

explanation, it can not be inferred that he had no knowledge that

the currency notes were counterfeit.

18.

The discussion made above shows that the trial Court

has not committed any error in convicting the appellant for offence

punishable under section 489 (B) of the Indian Penal Code. The

appellant is sentenced to suffer R.I. for seven years. As per the

record, no other crime was registered against this accused. He

had just crossed 18 years of age. He was used to circulate fake

currency notes. In view of this, this Court holds that imposing

imprisonment for a period of five years would be just and sufficient

in this case. So, to reduce sentence the following order is made.

ORDER

The appeal is partly allowed.

The judgment and order in Sessions Case

No. 21/2012 passed by Additional Sessions Judge,

13 Cri. Appeal 342/2012

Shrirampur dated 07/03/2012 is hereby modified

only to reduce the substantive sentence.

Substantive sentence is reduced from seven years

rigorous imprisonment to five years rigorous

imprisonment.

Other part of the order regarding sentence remains

the same.

Copy of this judgment is to be supplied to the

appellant free of costs through Jail Superintendent

and it is to be informed to him that he can

challenge the decision of this Court in Supreme

Court and he can get legal aid there.

( T.V. NALAWADE J. )

ts k/