Calcutta High Court (Appellete Side)
Mr. Ohidul Sk vs The State Of West Bengal on 23 December, 2021
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bivas Pattanayak
CRA 135 of 2019
In
CRAN 2 of 2019
Mr. Ohidul Sk.
Vs.
The State of West Bengal
For the Appellant : Mr. Avik Ghatak, Adv.
Mr. Salman Hassan, Adv.
Mr. Amit Ranjan Pati, Adv.
For the State : Mr. Saswata Gopal Mukherje, Ld. P.P.
Mr. Saryati Dutta, Adv.
Heard on : 23rd December, 2021
Judgment on : 23rd December, 2021
Joymalya Bagchi, J. :-
The appellant has assailed his conviction under Sections 489B &
489C of the Indian Penal Code and the corresponding sentence of 10 years
2
and a fine of Rs.10,000/- in default to suffer simple imprisonment for six
months for the offence punishable under Section 489B and rigorous
imprisonment of seven years for the offence punishable under Section 489C
of the Indian Penal Code.
Appellant was called upon to answer the following charges:-
"Firstly - That you, on or before 20.06.2015 bought 100 numbers of
F.I.C.N. having denomination of Rs.1000/- each in total Rs. 100,000/- from
some person / persons knowing or having reason to believe the same to be
forged / counterfeit and on 20.06.2015 came to Dhulian Ferryghat under P.S.
Samsherganj, District- Murshidabad with said FICN, out of which you
circulated FICN of Rs.1000/- there as genuine and on that day i.e. on
20.06.2015
in between 15:55 to 17:35 hrs in the same place, mentioned
above, 99 numbers of FICN having denomination of Rs.1000/- in total
Rs.99000/- were recovered from your possession and that you thereby
committed an offence punishable under Section 489B of I.P.C. and within the
cognizance of this Court.
Secondly - That you, on 20.06.2015 in between 15:55 to 17:35 hrs in
the same place, mentioned above, had in your possession of 99 numbers of
F.I.C.N. having denomination of Rs.1000/- each in total Rs.99000/- knowing
or having reason to believe the same to be forged / counterfeit and intending to
use the same as genuine and thereby committed an offence punishable under
section 489C of I.P.C. and within the cognizance of this Court."
Prosecution examined seven witnesses to prove its case.
P.W. 1 is the de facto complainant and the leader of raiding party. He
deposed that on 20.06.2015 he was posted as ASI at Samsherganj Police
Station. At about 03:05/03:10 PM he received source information that
someone was standing at Ferry Ghat, Dhulian taking Fake Currency Note.
He informed the matter to the O.C. of Police Station. As per his direction, he
along with three constables proceeded to the spot. Prior to leaving the police
station, he diarized such information. On the way he requested two persons
namely, Fitu Sk. (P.W. 3) and Abdul Rashed (P.W.5) to join them. When they
reached the ferry ghat, they apprehended the appellant and seized ninety-
nine currency notes of denomination of Rs.1000./- each suspected to be fake
from his possession. He proved the seizure list. He took the appellant to the
police station along with seized articles. He lodged the F.I.R. (Ext. 2). He also
identified the FICNs in Court.
Evidence of the aforesaid witness is corroborated by members of the
raiding party namely, PWs. 2, 4 and 7. Independent witnesses were declared
hostile. They, however, admitted their signatures in the seizure list. They
were confronted at length with their previous statements to police during
cross-examination.
P.W. 6 is the investigating officer of the case. He interrogated the
appellant. He recorded the statement of the appellant & other witnesses. He
sent the seized FICN for examination and received the report from Bharatiya
Reserve Bank - Note Mudran Bibhag- Salboni (Ext. 7). Report opined that the
seized currency notes are faked. He submitted a charge sheet.
Evidence on record particularly that of P.Ws, 1, 2, 4 and 7 clearly
establishes seizure of ninety nine currency notes suspected to be fake from
the possession of the appellant.
It is argued that independent witnesses have not supported the
prosecution case. The said witnesses were declared hostile and were
confronted with their previous statements. They admitted their signatures on
the seizure list. From the materials on record it appears the independent
witnesses had been won over and were not telling the truth. Hence, I do not
wish to discard the consisted evidence of the official witnesses who seized the
currency notes from the possession of the appellant on the prevaricating
stance of untruthful witnesses. Charge under Section 489C of the Indian
Penal Code appears to have been proved beyond doubt.
Mr. Ghatak strenuously, argues that evidence of user of the notes has
not been established. Referring to the charge framed under Section 489B of
the Indian Penal Code he submits that the purported user of currency notes
is founded on the confessional statement of the appellant before the police.
I find much substance in his submission. Evidence with regard to user
of the currency notes is based on inadmissible evidence of the appellant
before the police. No charge of trafficking of fake notes by way of
transportation or otherwise has been framed in the instant case.
In view of the aforesaid circumstances, I am inclined to acquit the
appellant from the charge under Section 489B of the Indian Penal Code.
Accordingly, conviction and sentence of the appellant is upheld under
Section 489C while conviction and sentence of the appellant is set aside
under Section 489B. The appeal is partly allowed.
Period of detention, if any, undergone by the appellant during
investigation, enquiry and trial shall be set off against the substantive
sentence imposed upon him in terms of Section 428 of the Code of Criminal
Procedure.
Lower court records along with a copy of this judgement be sent down
at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I Agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi J.)
Sb/PA
