Calcutta High Court (Appellete Side)

Masarul Sk. & Anr vs The State Of West Bengal on 13 May, 2022

                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

CRA 264 of 2009

Masarul Sk. & Anr.

-Vs.-

                          The State of West Bengal

For the appellants            :     Ms. Anasuya Sinha,
                                    Mr. Debapratim Guha,
                                    Mr. Rajiv Lochan Chakraborty,
                                    Mr. Priyanjit Kundu,
                                    Ms. Anchita Sarkar

For the State                 :     Mr. Arijit Ganguly,
                                    Ms. Manisha Sharma.

Heard on                      :     11.04.2022, 27.04.2022 & 02.05.2022

Judgment on                   :     13.05.2022


Tirthankar Ghosh, J:-

The present appeal has been preferred against the judgment and order of

conviction and sentence dated 15.01.2009 and 16.01.2009 passed by the

learned Additional Sessions Judge, 2nd Fast Track Court, Berhampore,

Murshidabad in connection with the Sessions Serial Number 249 of 2007

wherein the learned trial Court after holding the present appellants guilty of

offence punishable under Sections 489B/489C of the Indian Penal Code read

with Section 34 of the Indian Penal Code was pleased to impose the following

sentence:

i) Rigorous imprisonment for seven years with fine of Rs. 2,000/-

(Rupees Two Thousand Only) each i.d. to undergo R.I. for six

months for offences under Sections 489B/34 of the Indian Penal

Code;

ii) Rigorous imprisonment for seven years and fine of Rs. 2,000/-

(Rupees Two Thousand Only) each i.d. to undergo R.I. for six

months for offences under Sections 489C/34 of the Indian Penal

Code.

Berhampore Police Station Case no. 292/2003 dated 21.09.2003 was

registered for investigation under Section 489B/489C of the Indian Penal Code

pursuant to an information addressed to the Inspector-in-charge, Berhampore

Police Station by one Mantu Mondal. The allegations made in the letter of

complaint which was treated to be the First Information Report of the case were

that two persons namely, Nurjaman Sk. And Masarul Sk came to purchase a

male calf from the complainant and after negotiation the price of the calf was

fixed at Rs.3,500/-. Masarul Sk. paid the aforesaid sum by way of five currency

notes of Rs.500/- denomination, nine currency notes of Rs.100/-

denomination, two currency notes of Rs.50/- denomination, one currency note

of Rs.20/- denomination and two currency notes of Rs.10/- denomination and

another amount of Rs.10/- was handed over for the purposes of tea. On

receiving the notes the complainant counted them in presence of the aforesaid

two persons and detected that five currency notes of Rs.500/- denomination

were fake, consequently the complainant called the villagers namely,

Dhananjoy Mondal, Binay Monda, Sahadev Mondal and his wife Khyamarani

Mondal who rushed and found that the notes were fake. On being asked and

pressurized Masarul Sk. admitted the five currency notes of Rs.500/-

denomination to be fake and as such the other person Nurjaman Sk was

questioned and as a result he also took out seven currency notes of Rs.500/-

each from his possession which were also found to be fake. It has been alleged

that Masarul Sk. and Nurjaman Sk. in presence of all the persons stated that

they had collected the notes from a cowboy at Kurmitala, Lalbagh as his Lord,

Sadek was well-known to them and usually visited the market at Beldanga on

every Wednesday and Friday for the purposes of purchase and sale of cows, the

complainant therefore requested the Officer to arrest and punish the offender

according to Law.

The Investigating Agency after completion of investigation submitted

charge-sheet under Section 489B and 489C of the Indian Penal Code against

the appellants and another. However, the other accused namely, Sadek could

not be traced by the Investigating Agency and as such the case against him

was filed. The report under Section 173 of Code of Criminal Procedure reflects

that the Investigating Agency has relied upon the seized currency notes as also

the report of the opinion of Expert along with 11 witnesses, who lend their

support to the prosecution case.

On submission of charge-sheet, the learned Judicial Magistrate was

pleased to take cognizance of the offence and thereafter committed the case to

the Learned Sessions Judge, Murshidabad. The Learned Sessions Judge was

pleased to transmit the records to the Learned Additional Sessions Judge, 2 nd

Fast Track Court, Berhampore, Murshidabad for trial and disposal. The

learned Trial Court after being satisfied regarding the supply of documents

under Section 207 of the Criminal Procedure Code was pleased to frame

charges under Sections 120B IPC, 489B/34 IPC and 489C/34 IPC.

Records of the Trial Court reflect that the prosecution in order to prove

its case relied upon 9 witnesses and number of documents which included the

CFSL Report, written complaint, seizure list, sketch map and also material

exhibits which included the fake currencies.

The witnesses so relied upon by the prosecution are PW1, Monoranjan

Sarkar; PW2, S. Dey; PW3, Sahadev Mondal; PW4, G. Malakar; PW5, Sk. Jamal

Hossain; PW6, Mantu Mondal; PW7, Dhananjoy Mondal; PW8, Binoy Kumar

Mondal and PW9, S.I. Sandip Sen.

PW1, Monoranjan Sarkar, was ASI of Police who was available in the

Police Station at the relevant point of time and after the complaint was

forwarded by the Superior was pleased to start Berhampore Police Station Case

No.292/03 dated 21.09.03 under Sections 489B/489C of the Indian Penal

Code against Nurjaman Sk., Masarul Sk. and Sadek Sk. The witness also filled

up the formal FIR with his signature and the same has been marked as Ext.1

with his signature being marked as Ext.1/1.

PW2, S. Dey, happened to be the scribe who wrote the letter of complaint

which was read over and explained to Mantu Mondal who put his left thumb

impression in his presence. The witness stated that the complaint was in his

hand writing and his signature is also appearing therein. The complaint was as

such marked as Ext.2. In cross-examination the witness stated that he had

written the complaint as per instruction and as narrated by Mantu Mondal.

PW3, Sahadev Mondal, was declared hostile by the prosecution and he

narrated that hearing hue and cry he had been to his neighbouring village,

however, the witness did not narrate anything regarding the fake currencies to

be seen by him.

PW4, Golan Malakar, was tendered for cross-examination, however, the

defence refused to cross-examine him.

PW5, Sk. Jamal Hossain, is one of the Investigating Officer of the case

who collected the CFSL Report and thereafter submitted charge-sheet under

Sections 489B and 489C of the Indian Penal Code. The CFSL Report was

marked as Ext.1 by the witness which subsequently by order dated 15.01.2009

was re-numbered as Ext.2 for removing difficulties in marking all exhibits.

PW6, is the complainant, Mantu Mondal, who was declared hostile as he

stated that he did not lodge any complaint at the police station. On cross-

examination by the prosecution he denied of any incident taking place.

PW7, Dhananjoy Mondal, was also declared hostile, who denied

witnessing any incident of transaction relating to calf and fake currencies.

PW8, Binoy Kr. Mondal, he was also declared hostile, however, he

admitted his signature in the seizure list which was marked as Ext.2 and

deposed that when he was passing through the pathway police obtained his

signatures. The witness also identified his signatures on the envelope of the

fake currencies which were marked as M/Ext.III/A and M/Ext.III/1/A.

PW9, SI Sandip Sen, is the Investigating Officer of the case. The witness

narrated the chronology of incidents regarding the seizure of the fake

currencies, arrest of the accused, recording of the statement, preparation of the

sketch map. The witness also identified the fake currencies which were marked

as Ext.1 series, the envelope in which the fake currencies were kept being

marked as M/Ext.1 and M/Ext.2/1. The two envelopes by which currencies

were sent to CFSL for testing and report, both the envelopes being marked as

M/Ext.3 and M/Ext.3/1 by him. The said seized currencies which were sent to

CFSL were returned back by the CFSL by an envelope which was marked as

Ext.4 by the witness.

Ms. Anasuya Sinha, learned advocate appearing for the appellants

submitted that the appellants have been falsely implicated in connection with

the instant case and the police authorities have failed to make out any case, far

less for convicting them for an offence, on the basis of evidence which has been

collected and placed before a Court of Law. Learned Advocate has pointed out

that PW6, PW7 and PW8 were declared hostile which includes the complainant

namely, Mantu Mondal, who denied of any incident having taken place which

is the foundation of the prosecution case. Learned advocate also denied that

any signature of the accused persons were taken on the material exhibits

which have been relied upon by the prosecution and according to her the

complicity of these appellants are no way established from the factual matrix of

the case. It is also submitted that the seizure list was a manufactured

document as the complainant has resiled from his earlier version and the CFSL

report was admitted in evidence in a questionable manner. Learned advocate

also relied upon two decisions of the Hon'ble High Court being, Md. Muktarul

Islam @ Suman -Vs. - State of West Bengal, 2014 SCC OnLine Cal 6838 and

Md. Morful Haque -Vs. - The State of West Bengal, 2017 SCC OnLine Cal

3380.

Mr. Arijit Ganguly, learned advocate appearing for the State resisted the

submissions advanced on behalf of the appellants and submitted that during

the trial the appellants did not raise any objection regarding admissibility of

any of the documents including the seizure list by way of which the fake

currencies were seized by the Investigating Officer of the case in presence of the

independent witnesses. It has been strenuously argued that merely because

the independent witnesses have turned hostile do not enure any benefit to the

appellants in view of the signature/LTI of the appellants being present in the

seizure list and which were never questioned by the appellants in course of

trial. The consistent version of the official witnesses do prove the case beyond

any reasonable doubt as the seized currencies were found to be fake by the

CFSL.

Before dealing with other issues, the applicability of the judgments relied

upon by the learned advocate for the appellants requires to be considered in

the factual background of the present case. In Md. Muktarul Islam @ Suman

(supra) the Division Bench while considering the factual background of the

case took into account the delay in lodging the First Information Report, the

differences in the version of the prosecution witnesses, the conduct of the

accused and the manner of initiation of the case. The said case is absolutely

based on the factual circumstances existing in the said case and is not

applicable to the facts of the present case.

So far as the case of Md. Morful Haque (supra) is concerned the Division

Bench of this Court took into account that only signatures of the three

witnesses were appearing in the seizure list and the currency notes were not

seized in their presence or the recovery from the possession of the accused was

witnessed by them. Further in the said judgment the delay in sending the

seized currencies to the Expert and non-production of Malkhana Register was

taken into consideration for acquitting the appellants. The seizure itself was

doubted by the Hon'ble Court.

One of the peculiar circumstances in the instant case is that there is a

difference in the oral evidence of the Investigating Officer of the case and the

documentary evidence which is available. For the said purpose the relevant

part of the oral evidence of the Investigating Officer is set out as follows:

"As per the complaint the cost of the calf was of Rs.3535/- As per complaint there are 5 fake currencies denomination of Rs.500/- each, 9 currencies denomination of Rs.100/- each, 2 currencies denomination of Rs.50/- each, one currency denomination of Rs. 20/- and 2 currencies denomination of Rs. 10/- each tendered to Mantu as the cost of the said calf. I sent all the currencies to the C.F.S.L. on 03.11.2003."

The aforesaid version of the Investigating Officer is different from the

seizure list which has been marked as Ext.3. According to the seizure list there

are two seizures which are as follows:

"A) 5 no. of 500 Rupee Note (five hundred Rupee Note), bearing Sle. No. 6AE 271989 to 6AE 271993, suspected as Fake Currency (Indian).

B) 7 no. of 500 Rupee Note (Five hundred Rupee Note), bearing Sle. No. 6AE 271994, 6AE 271995, 6AE 271996, 6AE 271997, 6AE 271998, 4AK 065525 and 1AN 747504 - suspected as Fake Currency (Indian)."

The CFSL Report also reflected that only the currency notes of Rs.500/-

denominations were sent, out of which 10 currencies were found to be fake and

two of the currencies were found to be genuine. The issue which comes up for

consideration before this Court is that whether the other currencies of

denominations Rs.100/-, Rs.50/-, Rs.20/- and Rs.10/- if were seized by the

Investigating Officer and they were kept in the same envelope or they were kept

in a different envelope. Further, the oral evidence of the Investigating Officer

narrates that nine currencies of all the denomination were seized do not find

any reflection in the seizure list and as such the seizure which was effected on

21.09.2003 and the samples which were sent for examination on 03.11.2003

calls for an explanation from the Investigating Officer of the case. When such a

question was confronted the answer of the Investigating Officer was as follows:

"There is no explanation in the C.D. where all the currencies were kept till 03.11.2003 from the date of seizure. Voluntiers : All the currencies were kept in the Thana Malkhana. Delay in sending the currencies to the C.F.S.L. is not explained in the C.D."

The Malkhana Register was not produced before the Court. In view of the

differences in oral version of the Investigating Officer with the seizure list in

respect of number of currencies seized, the delay in sending the samples, non-

production of the Malkhana Register before the Court and no explanation for

such delay being recorded in the Case Diary, the genesis of the case on the

basis of such seizure becomes questionable and the findings of the Division

Bench judgment of Md. Morful Haque (supra) is applicable to the present case.

In this case the Investigating Agency was not working on source

information but on the basis of a complaint filed by an individual and as such

the search and seizure which was effected should have been in consonance

with the complaint which was filed. The seizure in this particular case is itself

doubtful along with all the other issues which has been dealt with earlier.