Anis & Anr vs State Nct Of Delhi
2009 Latest Caselaw 5253 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of the Order: 16.12.2009

+      CRL.A. 1059/2006 & CRL.A. 20/2007


#      ANIS & ANR                                    ..... Appellant
!                             Through:Mr. Anish Dhingra, Mr. S. Mehdi
                              Imam and Anis S., Advocates

                      versus

$      STATE NCT OF DELHI               ..... Respondent

^                   Through: Mr. Amit Sharma, APP for the
                    State

                                             And

+      CRL.A. 20/2007

#      NAND KISHORE               ..... Appellant
!                  Through:Mr. Sangram S. Saron, Advocate

                      versus

$      STATE OF DELHI              ..... Respondent
^                   Through: Mr. Amit Sharma, APP for the
                    State

*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

       1.      Whether the Reporters of local papers
               may be allowed to see the judgment?               Yes

       2.      To be referred to the Reporter or not?            Yes

       3.      Whether the judgment should be
               reported in the Digest?                           Yes



 : V.K. JAIN, J. (oral)

These are two appeals against the judgment and Order on

Sentence dated 30th November, 2009 whereby the appellants

were convicted under section 489-B of IPC and were sentenced

to undergo RI for 7 years each and to pay fine of Rs.5000/- each

or to undergo SI for 6 months each in default.

2. The FIR was registered on the statement of one Lakhpat

Singh, Cashier with the Central Bank of India, Badarpur Branch.

He alleged that on 31st October, 1997 at about 11.30 a.m. one

Inderjeet Singh came to the counter, filled up a voucher and

submitted the same along with two hundred currency notes of

Rs.100 each for depositing in his saving account No.19412. On

careful examination of those notes and consulting his colleagues

and the Bank Manager, he felt that they were counterfeit

currency. The police was informed and Inderjeet Singh was

handed over to the police along with the currency which he had

deposited with the bank. During the course of investigation, the

investigating agency claims to have recovered 50 counterfeit

currency notes of Rs.100 each from the house of the appellant

Nand Kishan, kept there in a trunk. The appellant Sharafat

Hussain was also arrested during investigation and 13

counterfeit currency notes of Rs.100 each were recovered from

his possession. The appellant Anis was arrested during

investigation on 3rd November, 1997 and 8 counterfeit currency

notes of Rs.100 each were recovered from his possession.

3. The prosecution examined 9 witnesses during trial. Three

witnesses were examined in defence.

4. PW1 Lakhpat Singh is the bank official to whom counterfeit

currency notes were tendered on 31st October, 1997. He has

stated that one customer came to the bank to deposit a sum of

Rs.20,000/- in denomination of Rs.100 each. While counting the

currency notes given to him, he felt that some of them may not

be genuine. He checked those notes minutely and informed the

Branch Manager, who confirmed his suspicion. Police was

thereupon informed and those currency notes were seized by the

police. He identified Inderjit, co-accused of the appellants as the

person who had tendered those currency notes to him. He also

identified the fake currency notes which were tendered to him

on that date. PW 2 Shri R.N. Swami was the Senior Manager

posted at Badarpur Branch on 31st October, 1997. He informed

the police when a person was caught while trying to deposit

currency notes, which included some fake notes.

5. PW 3 Head Constable Bhagirath had stated that on 2 nd

November, 1997 the appellant Nand Kishore was arrested from

his residence in Village Aali, Nai Basti and 50 fake currency

notes in the denomination of Rs.100 were recovered from a box

in his house. He further stated that pursuant to the disclosure

statement made by the appellant Nand Kishore, the appellant

Anis was arrested from Trilok Puri and 8 fake currency notes of

Rs.100 each were recovered during his search. The appellant

Sharafat Hussain was arrested pursuant to disclosure statement

made by Anis and 13 fake currency notes of Rs.100 were

recovered from his possession. The witness has identified the

currency notes which were recovered from the possession of the

appellants in his presence. Ex.P.201 to 271 are the currency

notes which were recovered from the possession of the

appellants.

PW 7 Inspector Amreek Raj has corroborated the

deposition of PW 3 Head Constable Bhagirath regarding seizure

of currency notes from the appellants. PW 5 Shri R.N. Gawhaya

is Technical Officer, of Bank Note Press, Dewas. He examined

98 suspected counterfeit currency notes of Rs.100 brought to

him by hand by Head Constable Bhagirath of PS Badarpur and

gave his opinion Ex.PW5/A. He has identified P 174 to 200 and

P.201 to 271 as the currency notes mentioned in his report.

6. In his statement under section 313 of Cr.PC, the appellant

Nand Kishore denied the alleged recovery from him and stated

that he was made to sign some blank papers after he had been

beaten by the police officers. Similar statement was made by

the appellants Sharafat Hussain and Anis.

7. DW-1 Ramesh Kumar has stated that on 2nd November,

1997, the police came to J.J. Camp, Trilok Puri and took the

accused Sharafat Hussain with them. DW-2 Mohd. Sabir has

stated that on 2nd November, 1997 police came to the house of

the accused Anis and took him with them in a car. DW-3 Jagdish

Chander Verma has stated that on 1st November, 1997 the police

came to Jagdamba colony in Ali Village of Badarpur and took

accused Nand Kishore with them.

8. In order to succeed for a charge under Section 489-C of

IPC, prosecution must prove:

(i) that the currency-note or bank-note in question was

forged or counterfeit;

(ii) that the accused sold to, or bought or received from,

some person, or trafficked in, or used as genuine,

such currency-note or bank-note.

(iii) that when he did so he knew or had reason to believe

that it was forged or counterfeit.

9. I do not see any reason to disbelieve the testimony of PW-3

Head Constable Bhagirath and PW-7 Inspector Amreek Raj as

regards recovery of counterfeit currency notes from the

possession of appellants. The appellants do not claim that there

was any enmity or ill will between them and any of these

witnesses. Therefore, there could have been no reason for them

to depose falsely against the appellants and implicate them in a

false case. Their testimony cannot be rejected merely because

they happen to be police officers. As observed by the Hon'ble

Supreme Court in Tahir Vs. State, (1996) 3 SCC 338, no infirmity

attaches to the testimony of police officials merely because they

belong to the police force. It was observed in Aner Raja Khima

Vs. The State of Saurashtra, AIR 1956 SC 217 that the

presumption that a person acts honestly and legally applies as

much in favour of police officers as of others. It is not proper

and permissible to doubt the evidence of police officers. Judicial

approach must not be to distrust and suspect their evidence on

oath without good and sufficient ground thereof.

10. It was contended by the learned counsel for the appellants

that no public witnesses were joined before searching the

appellants. It cannot be disputed that the public does not want

to get dragged in police and criminal case and wants to avoid

them, because of long drawn trials and unnecessarily

harassment. Similar view was taken in Manish Vs. State, 2000

VIII AD (SC) 29 and in A. Bhai Vs. State of Gujrat, AIR 1980 SC

696. We can't be oblivious to the reluctance of a common man to

join such raiding parties organized by the police, lest they are

compelled to attend Police Station and Courts umpteen times at

the cost of considerable inconvenience to them, without any

commensurate benefit. Hence, no adverse inference on account

of non-joining of public witnesses in such raids should be drawn.

In fact the deposition of PW-3 and PW-7 to some extent

stands corroborated by DW-1 and 3 who say that in their

presence the police had come to their house and had arrested

the appellants.

11. The testimony of PW-3 and PW-7 proves that out of 71

counterfeit currency notes Ex.P-201 to P-271, 50 currency notes

were recovered from the possession of the appellant Nand

Kishore. 8 out of them were recovered from the possession of

the appellant Anis and the remaining 13 were recovered from

the possession of the appellant Sharafat Hussain. The testimony

of PW-5, who is Technical Officer with Bank Note Press, when

read alongwith opinion Ex.PW 5/A shows that all these currency

notes were counterfeit currency. There is no evidence to rebut

the opinion given to PW-5 and in fact this is not the case of any

of the appellants that the currency notes alleged to have been

recovered from their possession were genuine currency. I,

therefore, have no hesitation in confirming the finding that the

currency notes recovered from the possession of the appellants

were counterfeit currency.

12. This is not the case of the appellants that though the

currency notes were in their possession, they did not know and

had no reasons to believe that the same were counterfeit

currency. This is also not their case that these currency notes

were given to them by someone and they had accepted the same

without suspecting them to be counterfeit currency. Their case

is that these currency notes were not at all recovered from their

possession. If a person found in possession of counterfeit

currency, instead of giving any explanation for such counterfeit

currency possession, chooses to altogether deny the possession

and such a defence is found to be false, the inevitable inference

is the he had reasons to believe that the currency notes

recovered from him were counterfeit currency and that precisely

was the reason why he is denying the recovery from him. The

knowledge and intention are state of mind which cannot be

proved by direct evidence and have to be inferred from the

attending circumstances. Possession of counterfeit currency,

coupled with denial of possession and no attempt to explain as to

how the appellants came into possession of such currency is

sufficient to infer the requisite knowledge and intention on the

part of the appellants. No doubt, the fundamental principles of

criminal jurisprudence is that it is for the prosecution to prove

all the ingredients of the offence alleged to have been committed

by the accused, but, when the prosecution has proved all that it

could have and the circumstances proved by it point unerringly

towards the guilt of the accused, in that case if there exists a

fact which is only in the knowledge of the accused and that fact

is compatible with his innocence, it is for the accused to bring

such a fact in the notice of the court. In 'Gajjan Singh vs. State

of Madhya Pradesh', AIR 1965 SC 1921, the accused, who was

travelling in a separate truck, was present when his truck in

possession of the driver was checked and forged permit

produced by his driver was seized. The conviction of the

accused under Section 471 read with Section 474 of Indian

Penal Code was upheld. I, therefore, hold that the prosecution

has already been able to prove that the appellants knew or had

reasons to believe that the currency notes found in their

possession were counterfeit currency.

13. There is no evidence of any of the appellants having sold

any counterfeit currency note. There is no evidence to prove

that they had bought the counterfeit currency notes, recovered

from their possession. But, in the facts and circumstances of the

case, it cannot be disputed that the appellant had received these

counterfeit currency notes from someone, and that is how they

came into possession of these notes. Normally, one would buy

or receive currency notes from someone unless he prints them

or finds them lying somewhere. This is not the case of any of the

appellants that he had found these currency notes lying

somewhere and had picked them up. It is not possible for the

prosecution to prove in each case that the person, who is found

in possession of counterfeit currency notes had bought or

received them from any particular person. The fact as to how

the appellants came into possession of these currency notes is a

fact especially in the knowledge of the appellants and in view of

Section 106 of the Evidence Act when any fact is especially

within the knowledge of any person, the burden of proving that

fact is upon him. If the person found in possession of currency

notes does not tell the Court as to how he had come into their

possession and chooses to altogether deny his possession of such

currency notes, the Court would be justified in inferring that he

had received those notes from someone. The arrest of the

appellant Anis and Sharafat at the instance of their co-accused,

followed by recovery of counterfeit currency from them also

corroborates this inference.

14. The main distinction between Section 489-B and 489-C of

IPC is that in order to establish a charge under Section 489-B,

the prosecution is required to prove the sale, purchase, receipt,

trafficking or use of counterfeit currency as genuine, whereas to

prove a charge under Section 489-C of IPC, the prosecution has

to prove possession of counterfeit currency with the requisite

knowledge and with intention to use the same as genuine or

intending that the same may be used as genuine. If in a given

case, someone finds currency notes lying somewhere and picks

them up with intention to use the same as genuine, while

believing the same to be counterfeit currency, he would be guilty

of the offence punishable under Section 489-C of IPC. If however

someone consciously receives such counterfeit currency from

another person with the requisite knowledge, he will be guilty of

the offence punishable under Section 489-C of the IPC. The

question as to whether possession of counterfeit currency in a

particular case falls within the purview of Section 489-B or 489-

C of IPC, depends upon facts of each case including the

explanation, if any, given by the accused as to how he came into

possession of counterfeit currency notes.

15. In view of the above discussion, I hold that the appellants

have rightly been convicted under Section 489-B of IPC.

16. The learned counsel for the appellants requested for taking

a lenient view in the matter of sentence, considering the

individual circumstance of each appellant, including their family

background, family obligations and state of health. Considering

the menace of counterfeit currency circulating in our country,

which at times results in harassment of innocent citizens, who

not being in a position to distinguish a fake currency note from a

genuine one or on account of not taking trouble of examining

them meticulously, become victims of such criminals by

accepting such currency notes without even suspecting them to

be fake currency notes, it is imperative to award adequate

punishment to those who indulge in such crimes. This would

also save harassment of innocent receivers of such currency

notes, by curbing the activities of those who are printing and

circulating counterfeit currency. Any unwarranted sympathy

with such persons will be totally misplaced. Taking into

consideration all the facts and circumstances of the case, while

maintaining the fine imposed upon the appellants, I direct that

they shall undergo R.I. for 4 years each, under Section 489-B of

IPC. One copy each of this judgment be sent to the appellants

through Jail Superintendent. Trial Court Record be sent back

within seven days, alongwith a copy of this judgment.

V.K. JAIN,J

DECEMBER 16, 2009 RS/AG