Karim Abdul Shaikh And Anr vs The State Of Maharashtra
2021 Latest Caselaw 2459 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 199 / 2016




1. Karim Abdul Shaikh

Age-21 years, Occ- Labourer,

Permanent Address :

Village-Madhyam Piyarpur,

P.O. Piyarpur, P.S.-Piyarpur,

Dist-Sahibganj, Jharkhand State

PIN-816108

(Presently lodged at Mumbai

Central Prison)



2.     Rahul Ayodyaprasad Gupta

Age-27 Yrs, Occ-Service,

Permanent Address :

R/o. Room No.106, Makkawadi,

Adjacent to Panchvati Bakery,

Dukkar Gulley, Sardar Nagar

No.3, Sion Koliwada,

Mumbai-400 037                                 .....Appellants
       V/s.

The State of Maharashtra
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(At the instance of Sr.P.I. of

Kanjurmarg Police Station vide

C.R. No. 92/2013)                          ....Respondent


                              WITH

              INTERIM APPLICATON NO.       17 / 2019

                  (for separation of the Appeal)

                              IN

              CRIMINAL APPEAL NO. 199 OF 2016



Rahul Ayodyaprasad Gupta

Age-27 Yrs, Occ-Service,

Permanent Address :

R/o. Room No.106, Makkawadi,

Adjacent to Panchvati Bakery,

Dukkar Gulley, Sardar Nagar

No.3, Sion Koliwada,

Mumbai-400 037                                     ....Applicant

                                                   (Orig.Accd. no.2)

       V/s.

The State of Maharashtra

(At the instance of Sr.P.I. of

Kanjurmarg Police Station vide
C.R. No. 92/2013)                                  .....Respondent

                                           (Orig. Complainant)
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                              * * * *

Mr. Pawan Mali Advocate appointed alongwith Mr.

Nagesh Chavan, for the appellant.

Mr. S.R. Agarkar, APP for State.


                              CORAM : SANDEEP K. SHINDE, J.



                                            Monday, 8
                                                        th
                                                             February, 2021.




JUDGMENT :

1. The appellants-original accused nos.1 and 2

have questioned the correctness of judgment and order th dated 26 February, 2016 passed by the learned

Additional Sessions Judge, Greater Bombay in Sessions

Case No.872/2013.

2. Accused no.1, Karim Abdul Shaikh is

convicted of the offence punishable under Section 489-B

of the Indian Penal Code and sentenced, him to suffer

rigorous imprisonment for 5 years and pay fine of

Rs.2,000/- with default stipulation. He has been also

convicted of the offence punishable under Section 489-C of the Indian Penal Code and sentenced him

to suffer rigorous imprisonment for 3 years and fine Rane 4/14 Appeal-199-2016 8.2.2021

of Rs.3,000/- with default stipulation. However, both the

sentences were directed to run concurrently.

3. Accused no.2-Rahul Gupta has been convicted

for the offence punishable under Section Section 489-C

of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for 3 years and fine of Rs.2,000/-

with default stipulation.

4. Pending trial, accused no.2-Mohammad Pintu

Shaikh, passed away and therefore the case abates

against him.

5. Pending trial, accused no.4, as it appears was

discharged by the learned trial Court.

th

6. Prosecution's case in brief is that, on 24

June, 2013, accused no.1-Karim Shaikh approached the

first informant shop and asked for three cakes of

bathsoap costing Rs.132/-. After taking the soaps,

accused handed note of Rs.1,000/- denomination to the

first informant. The first informant returned the balance amount of Rs.868/- to accused no.1. However,

while he was leaving, the first informant suspected the Rane 5/14 Appeal-199-2016 8.2.2021

genuineness of that currency note. He therefore called

the accused and told him that the currency note

delivered to him was 'fake'. Thereupon, the accused

Karim Shaikh returned him back the soap cake and

demanded his currency note of Rs.1,000/- denomination.

However, the first informant declined to return the note

to him. In the circumstances, the accused tried to run

away. The first informant-shopkeeper called the

policemen and narrated the incident to them. In the

meanwhile, accused no.1 was detained. On his personal

search, currency notes of Rs.1,000/- denomination, four

currency notes of Rs.500/- denomination were found in

his shirt pocket. The counterfeit currency notes were

seized by drawing the panchanama followed by

registration of crime for the offence punishable under

Section 489-B and 489-C. In the course of investigation,

130 fake currency notes of Rs.500/- denomination were

seized from the house of accused-Karim Shaikh as per

the disclosure statement. That on the information

revealed by accused no.1, the Investigating Officer

arrested Rahul Gupta (accused no.2) and seized 85

currency notes of Rs.1,000/- denomination from his house as per his disclosure statement. All fake and genuine Rane 6/14 Appeal-199-2016 8.2.2021

currency notes were sent to Currency Note Press, Nasik

and the report was called.

7. Upon perusing the final report, accused were

tried for the offences punishable under Sections 489-B

and 489-C of the Indian Penal Code. In consideration

of evidence, the learned trial Court, convicted accused

nos.1 and 2 as aforesaid, against which this appeal is

preferred.

8. Heard Mr. Mali, learned Advocate appointed

by this Court, Advocate Mr. Chavan for the appellant

and learned APP for the State.

9. I have perused the prosecution evidence.

10. Before adverting to the arguments/contentions,

of Mr. Mali, Learned Advocate for the appellant, it may

be stated that, accused no.1 who was convicted for the

offences punishable under Section 489-B and 489-C and

sentenced to suffer 5 years and 3 years respectively, has

undergone the sentences of five years; whereas, accused no.2 convicted for the offence punishable under Section Rane 7/14 Appeal-199-2016 8.2.2021

489-C and sentenced to suffer 3 years, was enlarged on

bail pending Appeal.

11. Mr. Mali, learned Counsel for the appellants,

submitted, that report from the Currency Note Press at

Exhibit-79, being admissible in evidence in terms of

Section 292 of the Code of Criminal Procedure, 1973

and the learned trial Court founded its conviction on

this report, however, the report being of incriminating

material, explanation in respect thereof was not sought

from the accused, while they were examined under

Section 313 of the Criminal Procedure Code, the report

of Currency Note Press was required to be kept out of

consideration and the trial Court could not have founded

conviction under Section 489-B and 489-C. In support

of this contention, Mr. Mali has taken me through the

statement recorded under Section 313 of the Criminal

Procedure Code and further relied on the judgment of

the Apex Court in the case of Sujit Biswas Versus.

State of Assam, (2013) 12 Supreme Court Cases 406.

In para-20, the Hon'ble Supreme Court has held thus :

12. It is a settled legal proposition that in a

criminal trial, the purpose of examining the Rane 8/14 Appeal-199-2016 8.2.2021

accused person under Section 313 Cr.P.C., is

to meet the requirement of the principles of

natural justice, i.e. audi alterum partem. This

means that the accused may be asked to

furnish some explanation as regards the

incriminating circumstances associated with

him, and the court must take note of such

explanation. In a case of circumstantial

evidence, the same is essential to decide

whether or not the chain of circumstances is

complete. No matter how weak the evidence of

the prosecution may be, it is the duty of the

court to examine the accused, and to seek his

explanation as regards the incriminating

material that has surfaced against him. The

circumstances which are not put to the

accused in his examination under Section 313

Cr.P.C., cannot be used against him and must

be excluded from consideration. The said

statement cannot be treated as evidence within

the meaning of Section 3 of the Evidence Act,

as the accused cannot be cross-examined with reference to such statement."

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12. Mr. Agarkar, fairly admits that, no explanation

was sought from the accused in respect of Exhibit-79, a

Currency Note Press Report, while examining them

under Section 313 of the Criminal Procedure Code.

13. Thus, in view of the facts aforesaid, and in

view of the law laid down by the Apex Court in the

case of Sujit Biswas (supra), which was followed by the

Division Bench of this Court in the case of Kiran Ashok

Jadhav Vs. The State of Maharashtra, through Goregaon

Police Station, 2014 ALL. M.R. (Cri.) 3850, it is to be

held that, the report at Exhibit-79 was required to be

excluded from consideration. In other words, the trial

Court could not have relied on this report and convicted

the accused for the offence punishable under Section

489-B and 489-C of the Indian Penal Code.

14. Mr. Mali, has invited my attention to the

opinion report of Currency Note Press, Nasik (Exhibit-

79) and drew my attention to examination details.

Submission is that, on examination of counterfeit notes,

experts noticed length and width of the notes; and colour registration was correct, Besides, the paper

thickness was found same, as that of genuine note Rane 10/14 Appeal-199-2016 8.2.2021

paper. Mr. Mali, relying on these examination details,

would submit that, neither the appellants nor any

person could have distinguished the subject notes being

counterfeit and it was only on the careful scrutiny by

experts like, manager of currency notes, the notes were

found, fake. It is therefore submitted, since resemblance

of fake note to genuine note was not discernible with

naked eye, the prosecution ought to have established,

that the possession was with the knowledge that the

currency notes were fake or counterfeit. It is submitted

that, mensrea is an essential ingredient of Section 489-B

and the expression "knowing or having reason to believe

the same to be forged or counterfeit" is sine-qua-non for

inviting penalty under the said provision. In support of

his contention, Mr. Mali has relied on the judgment of

the Hon'ble Apex Court in the case of M. Mammutti

V/s. The State of Karnataka, reported in (1979) 4 SCC

723. Reliance is also placed on the judgment of the

Division Bench of this Court in Writ Petition No. 3027 st of 2018 dated 1 October, 2018 (Sanskriti Jayantilal

Salia V/s. The State of Maharashtra & Ors.). Further

reliance has also been placed on the judgment of the Apex Court in the case of Umashanker Versus. State of

Chattisgarh, reported in 2001 (9) SCC 642.

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15. I have carefully considered the submissions of

the learned Counsel for the appellant and the

submissions of the learned APP for the State. I have

also gone through the judgment cited by the Counsel for

the appellants.

16. It is not in dispute that, the currency notes

allegedly recovered from the accused has had

resemblance to genuine note on the aspects of size and

length; paper thickness and registration. Therefore, the

currency notes recovered from the accused were

strikingly similar to genuine notes. It is in these

circumstances, it was difficult not only for the

appellants but for any person to distinguish the note

from counterfeit. In the given set of facts, the

prosecution ought to have established the Mens rea. On

this point, the Apex Court in the case of Umashanker

(supra) has held in para-8 as under :

"8. A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank notes to be forged or counterfeit". Without the Rane 12/14 Appeal-199-2016 8.2.2021

afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes, is not enough to constitute offence under Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency-notes or bank-notes 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 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 18 year old student. On the facts of this case 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 Rane 13/14 Appeal-199-2016 8.2.2021

fake or counterfeit was put to the appellant in his examination under Section 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B and 489-C of I.P.C. and acquit him of the said charged [see : M. Mammutti v. State of Karnataka, AIR (1979) SC 1705."

17. Thus, it is to be held in the case in hand,

the prosecution has not established that the possession

of currency notes was with the knowledge or that

accused had every reason to believe that the currency

notes were forged or counterfeit. In the circumstances,

without the Mens rea, selling, buying or receiving from

other person or using it as a genuine is not enough to

constitute the offence under Section 489-B of the Indian

Penal Code.

18. Thus, in consideration of the facts of the case and the law laid down by the Apex Court, in my view,

the learned trial Court at first, ought not to have relied Rane 14/14 Appeal-199-2016 8.2.2021

on the report of the printing press when explanation in

respect and in relation thereto was not sought from the

accused, they were examined under Section 313 of the

Criminal Procedure Code and secondly there is no

evidence on record even to suggest that the accused had

the knowledge that the notes in their possession were

counterfeit.

19. In consideration of the facts of the case and

for the reasons stated, the Appeal is allowed and the th judgment and order dated 26 February, 2016 passed by

the learned Additional Sessions Judge, Greater Bombay

in Sessions Case No.872/2013 is quashed and set aside.

The Bail Bonds are cancelled and securities are

discharged. The fine amount, if any, paid be refunded

to the appellant-accused. Appeal is disposed off.

20. With disposal of the Appeal, interim

applications do not survive. The same also stand

disposed off.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.
                                                              (Sandeep K. Shinde, J.)
         Date:
Sawant   2021.02.12
         13:42:18
         +0530