Noor Islam S/O Sadik Ali vs The State Of Maharashtra
2016 Latest Caselaw 3842 Bom

                                                        Criminal Appeal No.510/2015
                                              1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                                               
                                                       
                        CRIMINAL APPEAL NO.510 OF 2015



     Noor Islam s/o Sadik Ali




                                                      
     Age 25 years, Occu. Labour,
     R/o Rohitalab, Tq. and Dist. Shaebganj
     (Zarkhand State)                                  ...   APPELLANT
                                                       (Orig. Accused)




                                         
              VERSUS

     The State of Maharashtra

     Aurangabad)
                             
     (At the instance of CIDCO Police,
                                                       ...      RESPONDENT
                            
                      .....
     Shri A.K. Bhosale, Advocate for appellant
     Shri R.V. Dasalkar, A.P.P. for respondent/ State
      

                      .....
   



                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       15th July, 2016.





                      Date of reserving judgment : 30th June, 2016
                      Date of reserving judgment : 15th July, 2016.


     JUDGMENT:

1. The appellant - original accused (hereafter referred to

as "accused") was tried along with one Mohammad Yunus for

offence punishable under Sections 489(B) and 489(C) read with

Section 34 of the Indian Penal Code, 1860 (IPC in brief) in

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Sessions Case No.83/2012 before Additional Sessions Judge-5,

Aurangabad and, while the other accused came to be acquitted

as there was no evidence against the said accused, the appellant

was convicted for these Sections. He was sentenced to suffer

rigorous imprisonment for ten years and fine of Rs.5000/-, in

default of fine, to suffer simple imprisonment for one month,

under Section 489(B) of IPC. For offence under Section 489(C),

he was convicted and sentenced to suffer rigorous imprisonment

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

suffer simple imprisonment for one month. Thus these appeals.

2. The case of prosecution in short is as under :

On 29.9.2011, at about 3.00 p.m., in Cannaught

Market, Cidco, Aurangabad, the accused had gone to one shop,

Shivam Mobile Shoppee. He purchased one Vodafone Reacharge

of Rs.100/- from P.W.2 Dinesh Mahale and offered him a

currency note of Rs.1000/-. Dinesh suspected the currency note

and on the plea that he will get change, went to adjacent shop of

P.W.3 Raju Vetal and explained his suspicion to him. A phone

call was made to Cidco Police Station, received by P.I. Dabbewad

(P.W.6). The fact was informed on phone to P.I. Dabbewad. The

shopkeeper P.W.2 Dinesh and his neighbouring shopkeeper

P.W.3 Raju Vetal, with the help of persons who had gathered,

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detained the accused till the police came. Police reached the

spot in about half an hour and panchas were called including

P.W.1 Sanjay Govandar. Search of the bag which the accused

was carrying, was taken and in the bag, further 32 notes of

Rs.1000/- denomination were found. Accused had a Samsung

Mobile phone with him which was also seized. In the bag, there

were two Pay-in-slips having contents filled of two different

Account Numbers and Rs.25,000/-. Election Identity Card of the

accused as well as diary containing phone numbers, 6 steel

plates/ dishes and Railway Ticket of Travel, dated 25.9.2011

from Bhagalpur to Manmad were also found. These articles were

seized vide panchanama Exh.36. The police took the seized

articles along with the accused to State Bank of India, Main

Branch, Aurangabad and after verifying from the Branch Manager

that the currency notes were fake, the police party reached back

to the Police Station and P.W.5 P.S.I. Baburao Bodke, who was

along with P.W.6 P.I. Dabbewad at the time of seizure, filed

F.I.R. Exh.53. P.W.6 Maruti Dabbewad took up the investigation.

Statements were recorded. The seized notes were sent to the

General Manager, Currency Note Press, Nasik Road, Nasik on

13.10.2011. The investigation was taken over by the Crime

Branch on 25.10.2011 and P.W.4 Harish Khatavkar received the

expert opinion on forged notes from the Currency Note Press,

Nasik (Exh.46) that the currency notes were counterfeit.

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Through Deputy Commissioner of Police S.S. Garge, P.W.4 P.S.I.

Harish got sent a letter to Department of Currency Management,

informing the numbers of the currency notes which had been

seized so that Rs.1000/- denomination currency notes in

circulation in the market could be kept under observation. After

the investigation, charge sheet came to be filed and the accused

was put up to trial. Accused No.2 was stated to be his

accomplice and two accused Nos.3 and 4 were shown as

absconding, in whose accounts it was claimed accused No.1 had

earlier deposited amounts.

3. Prosecution brought on record evidence of six

witnesses and the documentary evidence was also proved. The

defence of the accused, as can be seen from the cross-

examination and his statement under section 313 of the Code of

Criminal Procedure (Cr.P.C. in brief) is that of denial.

4. The trial Court, after considering the oral and

documentary evidence, convicted the accused and sentence as

mentioned above was passed.

5. I have heard learned counsel for the appellant -

accused as well as the learned A.P.P. for State. Various grounds

have been raised by the counsel for the appellant - accused and

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in reply, the learned A.P.P. rebutted the same and relied on the

reasonings recorded by the trial Court to submit that the offence

has been established. I will refer to the arguments for deciding

the matter while discussing the evidence.

6. On record, firstly there is evidence of P.W.2 Dinesh

Mahale and P.W.3 Raju Vetal, the neighbouring shopkeeper. The

evidence of these two witnesses shows that, the accused indeed

had gone to the shop of P.W.2 Dinesh and on purchasing

Vodafone Recharge of Rs.100/-, he tendered a currency note of

Rs.1000/-. P.W.2 Dinesh deposed that he had suspicion about

the currency note given by the accused to be fake and he had

told the accused that he does not have change and went to the

adjacent shop of P.W.3 Raju. The evidence of P.W.3 shows that

P.W.2 Dinesh came to him and showed him the currency note

and expressed his suspicion that the same was forged. P.W.3 did

not depose that he also felt the note to be forged, but the

evidence of both these witnesses is that a phone call was made

to the police and police was called. Both these witnesses say

that the other of them made the phone call. That, however, is

not material. Important is that a phone call was made when the

note of Rs.1000/- tendered by the accused was suspected by

P.W.2 Dinesh to be fake and police did come to the shop of P.W.2

Dinesh. The evidence of these two witnesses show that, with the

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help of people who had gathered, the accused was caught by

them and when police came, he was handed over to the police.

Regarding this evidence, although efforts have been made in the

cross-examination to shatter these witnesses, I do not find that

the witnesses are shattered on this count. There is no reason for

these two witnesses to unnecessarily speak against the accused

or that they had any axe to grind against the accused to involve

him for no reason.

7. The evidence of P.Ws.2 and 3 read with the evidence

of P.W.1 Panch Sanjay, P.W.5 P.S.I. Baburao Bodke and P.W.6

P.I. Dabbewad shows that, police reached the shop of P.W.2

Dinesh and the accused was taken charge of by the police and

the currency note of Rs.1000/- tendered by the accused was

taken in charge by the police. The seizure panchanama Exh.36

shows this note to be having No.2BD 790666 . The subsequent

report from Currency Note Press Exh.46 admissible under Section

292 of the Cr.P.C. has found this note (along with others) to be

counterfeit. I find the evidence that this one note of Rs.1000/-

tendered by accused to P.W.2 Dinesh and which was seized by

police has been proved to be counterfeit note. The note was

tendered by the accused and thus, these facts are established in

the present matter. I agree with the trial Court on this count.

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8. Now the question is of the remaining 32 currency

notes said to have been seized from the right side pocket of the

trouser of accused. In this regard, there is evidence of the above

prosecution witnesses that, when the police came, they searched

the person of the accused and from his pocket, 32 currency notes

were seized, the numbers of which notes were entered in the

panchanama Exh.36. The learned counsel for the accused

argued that, the seizure could not be said to be proved as there

was no material to show that the police offered or gave their own

search before searching the pockets of the accused.

9. If the evidence of P.W.1, who is the panch, is

perused, it shows that, he was called and told that a currency

note of Rs.1000/- is found with the accused, and his evidence is

that, the police then searched the person of the accused and took

out 32 fake currency notes from the right side pocket of the

trouser of accused. He deposed (in para 4 of his cross-

examination) that, accused No.1 did not take personal search of

him and the other panch and police had also not given their

personal search to the accused. In this context, the panchanama

Exh.36 is silent and does not say anything that the search was

offered and declined by the accused or that the accused had

taken personal search of the police and panchas. The evidence

of P.Ws.2 and 3 is silent regarding any search being offered,

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declined, given or taken. The evidence of P.W.5 shows that, this

P.S.I., who is the complainant, admitted (in para 3 of his

evidence) that it is necessary for the police officer and panchas

to give their personal search before taking search of any suspect

and the said fact is required to be mentioned in the panchanama.

As mentioned, the panchanama is silent on this count. In fact,

the F.I.R. Exh.53 filed by this P.W.3 also does not mention that

before searching the person of the accused any personal search

was offered to him or that he declined or that the accused

searched the persons of the police and panchas before his

personal search was taken. In oral evidence, however, P.W.6

P.I. Dabbewad claimed that, after the panchas reached, he had

asked the accused about their search in presence of panch

witness, but he refused. According to this investigating officer,

after the accused refused to take their search, they had searched

the person of the accused and found 32 currency notes. In the

cross-examination, this P.W.6 Dabbewad had to admit that the

panchanama Exh.36 does not disclose that the accused had

declined to take search.

10. Looking to the above discussion, I find that, the

prosecution failed to prove that before putting their hands in the

pocket of the accused the police had given their own personal

search. Looking to the facts of the present matter, where seizure

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of 32 currency notes of Rs.1000/- are shown from the pocket of

the accused, which would not be a volume not possible to plant, I

find that it was necessary to establish that proper procedure for

search was followed and personal search was offered to the

accused. This is not to say that the notes were planted in the

pocket, but looking to the gravity of the matter, it was

responsibility of the police to give fair opportunity to accused and

to also make record of the same to claim that offence is proved

beyond reasonable doubts.

11. I will ignore the oral evidence of P.W.6 that the police

had offered their search but the accused refused.

12. I thus find that, the duly established fact is only of

the seizure of one currency note of Rs.1000/-, which was

tendered by the accused to the shopkeeper P.W.2 Dinesh. Now,

before further discussing the oral evidence, I find it appropriate

to make a reference to the judgment in the matter of

Umashankar Vs. State of Chhattisgarh [(2001) 9 SCC 642] and

the judgment of M. Mammutti Vs. State of Karnataka (1979) 4

SCC 723 relied on by the learned counsel for accused.

13. It has been argued by the learned counsel for the

accused that, proving of mere fact of the accused being in

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possession of counterfeit currency note or notes is not enough to

hold that Section 489(B) or 489(C) is established. The learned

counsel has rightly relied on the wordings of these Sections,

where it is provided that, the using of the counterfeit currency or

possession of the counterfeit currency is punishable if the

accused was "knowing or having reason to believe the same to

be forged or counterfeit.

14.

In the matter of "Umashankar" (supra), the Hon'ble

Supreme Court, after referring to Sections 489(B) and 489(C) ,

observed in para 8 as follows :

"8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-

B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or

otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under

Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of P.W.2, P.W.4 and P.W.7 that they were able to make out that the currency note alleged to have been given to P.W.4 was fake, "presumed" such a mens rea. On the date of the incident the appellant was said to be an eighteen-year-old student. On the facts of this case

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the presumption drawn by the trial Court is not warranted under Section 4 of the Evidence Act.

Further it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the appellant in his

examination under Section 313 of the Criminal Procedure Code."

15. In the matter of "M. Mammutti" (supra), the

appellant before the Hon'ble Supreme Court was found in

possession of 2 rupee currency notes which were found to be

counterfeit. The appellant-accused in that matter claimed that,

two days earlier he had sold 3 quintals of tamarind fruits to a

person, who had given him a sum of Rs.390/- and that the

currency notes had been given to him by the said purchaser.

The appellant therein claimed that, he did not know that these

currency notes were counterfeit. The Hon'ble Apex Court

observed in that matter that, there was no evidence of any

witness to show that the counterfeit notes were of such a nature

or description that a mere look at them would convince any

person of average intelligence that it was a counterfeit note. The

observations of the Hon'ble Apex Court are as under :

"There is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note." . . . . . . . . . . . . "Mr. Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that

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mere look at them would convince anybody that it was a counterfeit such a presumption could

reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused

knew that the notes were of such a nature."

16. Looking to the above judgments of the Hon'ble

Supreme Court, it is clear that, mens rea in such matters is an

important ingredient. The mens rea could be attributed if the

notes are of such a nature that mere look at them would

convince anybody of reasonable intelligence that it is counterfeit.

In the present matter, in the statement under Section 313 of

Cr.P.C., the accused was asked, and informed that the report

Exh.46 from currency note press showed that the currency notes

were counterfeit. The accused did not give any explanation in his

statement under Section 313 of Cr.P.C. However, looking to the

above two judgments of the Hon'ble Apex Court, it would be

necessary to see if the evidence brought on record is sufficient to

show that the accused had the necessary mens rea that the note

or notes which were in his possession were counterfeit. With this

object, I have examined the evidence. The evidence of P.Ws.2

and 3 is that when after talking between them it was felt by them

that the currency is fake they caught the accused and kept him

waiting for about half an hour till police came. These witnesses

are silent regarding the talk they had with the accused at such

time. In ordinary and natural course of conduct, they must have

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told the accused that according to them the note tendered by

him is fake and so he must keep waiting till police come. The

accused would, in natural course, have said something. He was

not accused at that point of time. No material has come as to

what was their conversation when they forcibly kept the accused

waiting till police came. Then, when the police came and

panchas were called, and seizure took place, the evidence of

P.W.1 Panch Sanjay and the police officials P.W.5 P.S.I. Baburao

and P.W.6 Dabbewad is silent regarding any opportunity being

given to the accused to explain as to from where he got the

concerned note or notes. The F.I.R. Exh.53 has recorded in a

vague manner that when the articles were seized from the

accused and he was asked about the notes, the accused was

giving "Udvaudvichi Uttare" i.e. evasive replies. In the search of

the accused, apart from other things, 2 Pay-in-slips of State Bank

of India were also found, in which certain Account numbers had

been entered regarding deposit of Rs.25,000/- on two occasions

in two different accounts on 28.9.2011 and 29.9.2011. Although

a mobile phone was seized and a diary with telephone numbers

was found, prosecution brought on record no material of source

of the amounts. This, in spite of the fact that during the course

of investigation P.W.4 P.S.I. Harish took over the investigation so

that the Crime Branch would look into the matter. Cross-

examination of P.W.6 Dabbewad shows that, on 30.9.2011, vide

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Exh.59, State Bank was informed of the deposits made by

accused in the two accounts. There appears endorsement on the

document by Bank that the notes which had been accepted were

genuine.

17. As observed by the Hon'ble Supreme Court in the

matter of M. Mammutti, it is now necessary to see if the

prosecution proved that the notes were of such a nature that a

mere look at them would convince anybody that the same was

counterfeit. If this would be so, knowledge could be attributed to

the accused. In this context, I have gone through the evidence.

P.W.2 deposed that, when accused offered him the currency note

of Rs.1000/-, he had "suspicion" about the currency note to be

fake. To verify, he went to P.W.3 Raju Vetal. Thus, P.W.2

Dinesh had only a suspicion. In his cross-examination, he

deposed that, the fake currency note which was given to him,

wire of the same was coming out and its colour was removing.

In this regard, the Currency Note Press in report Exh.46 has

mentioned that the security thread in the notes was imitated and

with reference to "printing ink colour", it is reported that the ink

shades were not matching. The report does not appear to be

stating that on touch, the colour was going off. In this context,

the evidence of P.W.3 Raju Vetal shows in cross-examination

(para 3) that if the currency note was to be seen from distance,

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he could not identify whether it was fake or original currency

note. Further, there is evidence of P.W.5 as well as it is

mentioned in the F.I.R. Exh.53 that after the seizure was done at

the shop of P.W.2, the police along with the accused went and

met the Branch Manager of State Bank of India, Main Branch to

get the currency notes checked. Evidence of P.W.5 is that, the

Branch Manager told the police that the 33 currency notes were

counterfeit. His evidence is that, thereafter the police along with

accused went to Police Station and he lodged the complaint. This

evidence shows that, even the police wanted to be sure before

they register the offence that the currency notes were

counterfeit. Keeping such evidence in view, prosecution has not

proved that the notes were of such a nature that mere look at

them would convince anybody that it was counterfeit. When this

is so, it cannot be presumed that, the accused had knowledge

that the note or notes which were in his possession were

counterfeit. Prosecution did not bring on record any further

evidence which would show source from where the accused got

the notes or any other material sufficient to assume that accused

had the requisite knowledge, or that he had reason to believe the

same to be counterfeit.

18. The learned counsel for the appellant - accused

pointed out the evidence of P.W.1 where he deposed that when

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the accused was caught, he did not try to run away. Then there

is evidence of P.W.3 Raju Vetal, which shows (in para 4 of his

evidence) that when they asked the accused to stop in the shop

till arrival of the police, the accused told them to let the police

come and he will remain there till arrival of police. There is no

material that in the time of about half an hour when accused was

kept waiting till police came, he tried to quietly throw off, drop

aside or get rid of the 32 notes from his pocket. The evidence of

P.W.5 P.S.I. Baburao shows that when the police reached the

concerned shop, the accused was sitting there and two persons

were near him. There is substance in the arguments of the

learned counsel for the appellant-accused that this conduct of the

accused also needs to be kept in view while appreciating the

evidence regarding the knowledge or reason to believe.

According to the counsel, if the accused knew or had reason to

believe that he was carrying counterfeit currency notes, he would

have reacted when P.W.2 went giving some excuse to P.W.3 with

the currency note. The accused did not try to slip away or run

away.

19. Looking to the above discussion, I find that the

prosecution failed to prove important ingredient of the offence

that the accused was knowing or had reason to believe that the

note or notes he was in possession were counterfeit or forged.

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This being so, the judgment of conviction and sentence as passed

by the trial Court cannot be maintained.

20. I pass the following order :

The appeal is allowed. The impugned judgment of

the trial Court, convicting the accused and sentencing him to

imprisonment and fine is quashed and set aside. The appellant-

accused is acquitted of the offence punishable under Sections

489(B) and 489(C) of the Indian Penal Code, 1860. The accused

be set at liberty forthwith unless his custody is required in any

other offence. Fine, if paid, be refunded to the appellant -

accused.

(A.I.S. CHEEMA, J.)

fmp/cri510.05