Calcutta High Court (Appellete Side)
Md. Mojammel Haque @ Situ & Anr vs State Of West Bengal on 14 November, 2022
Item No. 45
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 397 of 2019
+
CRAN 1 of 2019 (Old CRAN 3515 of 2019)
Md. Mojammel Haque @ Situ & Anr.
Vs.
State of West Bengal
For the Appellant(s) : Mrs. Anasuya Sinha, Adv.
Ms. Eshita Dutta, Adv.
For the State : Mr. N Ahmed, Adv.
Mr. S Bardhan, Adv.
Ms. Ayantika Roy, Adv.
Heard on : 14th November, 2022
Judgment on : 14th November, 2022
Joymalya Bagchi, J. :-
Appeal is directed against the judgment and order dated
29.05.2019
and 31.05.2019 passed by learned Chief judge, City Sessions
Court, Calcutta in Sessions Trial No. 1(11)2013 convicting the appellants
for commission of offences punishable under Sections 489B and 489C of
the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for 8 (eight) years and a fine of Rs. 50,000/- each, in
default, to suffer simple imprisonment for one year more for the offence
punishable under Section 489B of the Indian Penal Code and to suffer
rigorous imprisonment for five years and to pay a fine of Rs.20,000/- each,
in default to suffer simple imprisonment for six months more for the
offence punishable under Section 489C of the Indian Penal Code; both the
sentences to run concurrently.
Prosecution case, as alleged against the appellants, is to the effect
that on 22.3.2013, SI Silash Toppo (PW1) received credible source
information that two fake currency dealers of Malda would come near
Sonagachi area with huge quantity of fake Indian Currency Notes (for short
FICNs). Accordingly, PW1 with force proceeded to the spot and kept watch.
Around 15.35 hrs they noticed a gathering in front of a mobile shop named
and styled as "Tirupati Telecom". Source informer pointed out to two
persons, one of whom was carrying a red and black rucksack bag on his
shoulder and the other was carrying red and off white synthetic bag in his
hand, as the trafficker of FICNs. The raiding party cordoned them and
disclosed their identity. At that time Anup Kr. Banerjee (PW 2) owner of the
shop informed the police that the aforesaid persons had come to his shop
to purchase mobile phones and one of them named Parvej Sk (appellant
No. 2 herein) handed over four pieces of currency notes of denomination
Rs. 500/- each and the other namely Md. Mojammel (appellant No. 1
herein) had handed over five pieces of similar currency notes for the
purpose of purchasing two mobile phones valued at Rs. 2500/- and Rs.
1650/- respectively. PW 2 prepared two cash memos with regard to the
purchase of the said mobile phones and handed them over to the said
persons. However, suspecting the currency notes were fake, he returned
them too.
Upon search the said currency notes and the cash memos were
recovered along with other articles. Further search of the bags of the
appellants, lead to the recovery of three bundles of 100 pieces each of
currency notes of denomination of Rs. 1000/- each and one bundle 95
pieces of currency notes of denomination of Rs. 500/- each, all of whom
appeared to be fake. Upon suspicion, the currency notes and other articles
were seized from the appellants under a seizure list. Appellants were
arrested and taken to the police station along with seized articles. One
complaint was lodged by SI Silash Topo resulting in registration of Burtolla
PS case no 134 of 2013 dated 22.3.2013 under sections 120B/489B/489C
IPC. In the course of investigation the seized currency notes were sent for
verification and report was obtained from Bharatiya Reserve Bank, Note
Mudran Pvt. Ltd. Bangalore that they were fake. Charge sheet was filed
and charges were framed under sections 489B/489C/120B IPC.
Appellants pleaded not guilty and claimed to be tried. Prosecution
examined 9 witnesses and exhibited a number of documents. Defence of
the appellants was one of innocence and false implication.
In conclusion of trial, the trial Judge by the impugned judgment
and order dated 29.5.2019 and 31.5.2019 convicted and sentenced the
appellants, as aforesaid.
Ms. Sinha, learned Advocate for the appellants submits that use of
the alleged FICNs for purchase of mobile phones have not been proved
beyond doubt. Mobile phones were neither seized nor produced in court.
Cash memos Ext. 15 and Ext. 26 exhibited in the instant case refers to
mobile phones which were standing in the name of shop owner Anup Kr.
Banerjee. There is nothing on record to show Anup Kr Banerjee was
authorized to sell mobile phones. PW4 Rahul Mondal is a pocket witness of
the police and cannot be relied upon. Hence, use of FICNs have not been
proved. Recovery of FICNs valued at Rs.5,99,500/- has also not been
proved. Accordingly, appellants are entitled to an order of acquittal.
On the other hand, Mr. Ahmed, learned advocate for the State
submits evidence of PW 1, leader of the raiding party is corroborated by
shop owner (PW 2) and an independent witness (PW 4) who was present at
the shop. Their evidence and the cash memos exhibited in the instant case
prove use of FICNs by the appellants. A large volume of FICNs were
recovered from their possession. Prosecution case has been proved beyond
doubt.
PW 1 (Silash Toppo) is the leader of the raiding party. He deposed
on receipt of secret information he along with team went to the spot and
saw the appellants in front of the shop named 'Tirupati Telecom'. There was
a commotion going on. Anirban Banerjee (PW 2), owner of the shop told PW
1 that the appellants had handed over fake currency notes to purchase
mobile phones from his shop. He had prepared cash memos and handed
them over to the appellants. Suspecting the notes to be fake, he returned
them to the appellants. On search, the fake notes as well as the cash
memos were recovered from the appellants.
300 pieces of currency notes of Rs. 1000 each and 95 pieces of
currency notes of Rs. 500 each suspected to be fake were also recovered
from their bags. PW 1 seized the currency notes and other articles under a
seizure list. He signed on the currency notes which were kept in an
envelope. He arrested the appellants and lodged FIR.
His deposition is corroborated by the shop owner Anup Kr.
Banerjee (PW 2) as well as an independent witness Rahul Mondal (PW 4).
Ms. Sinha strenuously argues the use of FICNs have not been
proved. Mobile phones were not produced during trial. Cash memos
exhibited in the instant case show mobile phones referred to therein belong
to PW 2.
I am unable to accede to the aforesaid submission. During cross
examination, PW 2 clarified he purchased mobile phones from dealers and
used to re-sell them to customers. Hence, mobile phones referred to in the
cash memos which were proposed to be sold to the appellants were
standing in his name. Mobile phones were not produced in Court. It is true
there is lack of clarity whether the mobile phones were actually handed
over to the appellants or not. However, failure of the investigating officer to
recover the mobile phones does not erode the credibility of the evidence of
PW 2 that he used to carry on business in selling of mobile phones and
had, in fact, prepared cash memos with regard to sale of two mobile phones
to the appellants after they had handed over the fake currency notes to
him.
His deposition is corroborated by an independent witness (PW 4).
PW 4 deposed he was present at the shop "Tirupati Telecom" at the time of
the incident. He had seen the appellants hand over the currency notes to
the shop owner who again returned the notes suspecting them to be fake.
He was also present when FICNs were recovered from the possession of the
appellants. He proved his signature on the seizure list and other
documents prepared in connection with seizure. He was extensively cross
examined and denied the suggestion that he was a planted witness.
N Krishnawamy (PW 3) is the Deputy General Manager, Bharatiya
Reserve Bank, Note Mudran Pvt. Ltd. He deposed he examined the seized
currency notes and prepared report. Report has been exhibited as Ext. 30.
Analysis report was also exhibited as Ext 40. From the said reports, it
appears that the seized currency notes are fake.
In view of the aforesaid evidence on record I am of the opinion both
use as well as possession of FICNs from the appellants have been proved.
Conviction and sentence of the appellants are upheld.
Appeal is, accordingly, dismissed.
In view of disposal of the appeal, connected applications, if any, also
stand disposed of.
Period of detention suffered by the appellants during investigation,
enquiry and trial shall be set off from the substantive sentence imposed
upon them in terms of section 428 of the Code of Criminal Procedure.
Lower court records along with copies of this judgment be sent down
at once to the learned trial Court as well as the Superintendent of
Correctional Home for necessary compliance.
Photostat certified copy of this order, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
