Som Prakash vs State
2009 Latest Caselaw 4360 Del

*  IN THE HIGH COURT OF DELHI AT NEW
DELHI

                              Reserved on: October 15, 2009

                       Pronounced on: October 28, 2009

+      (1) CRL.A. 426/1999


#      SIRIDHAR                               ..... Appellant

!                             Through: Mr. R.M. Tufail with Mr.
                              Anwar A Khan and Mr. Vishal
                              Sehijpal,  Mr.    Sunil    Sagar,
                              Advocates

                       Versus

$      STATE                                    .....Respondent

^                             Through: Mr. Amit Sharma, Addl.
                              PP for the State.

+      (2) CRL.A. 393/1999


#      SOM PRAKASH                            ..... Appellant

!                             Through: Mr. R.M. Tufail with Mr.
                              Anwar A Khan and Mr. Vishal
                              Sehijpal,  Mr.    Sunil    Sagar,
                              Advocates

                       Versus

$      STATE                                    .....Respondent

^              Through: Mr. Amit Sharma, Addl. PP for the
               State.




Crl. A. No. 426.99 & 393.99
                                                  Page 1 of 24
 CORAM:

 HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers 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.

These are two separate appeals against the

judgment dated 27th July, 1999 and Order on Sentence

dated 29th July, 1999, whereby the appellants were

convicted under Sections 489-A, 489-C and 489-D of

IPC, read with Section 34 thereof and were sentenced to

undergo RI for 7 years each and pay fine of Rs.1000/-

each or to under SI for one month each in default, under

Section 489-A and were further sentenced to undergo RI

for 5 years each and pay a fine of Rs.500/- each or

undergo SI for 15 days in default, under Section 489-C.

They were also sentenced to undergo RI for 7 years each

and pay a fine of Rs.1000/- each or undergo SI for one

month each, in default, under Section 489-D.

Crl. A. No. 426.99 & 393.99

2. The case of the prosecution in nutshell is that on

11th August, 1988 a secret information was received that

one person with forged Special Bearer Bonds of

Government of India was present near Volga Restaurant,

Connaught Place, New Delhi and forged bearer bonds

can be recovered if he is arrested. A raiding party was

thereupon formed and the appellant Som Prakash was

arrested from near Volga Restaurant, Connaught Place.

He was carrying a file type raxin bag in his hand. On

checking, the bag was found to contain 24 bearer bonds.

He was interrogated and at his instance appellant

Siridhar Prasad was arrested from his jhuggi in Janta

Quarters, Shahdara, Delhi. On the search of his jhuggi

218 forged bearer bonds were recovered. One small

wooden rod bearing digits 1, 2, 3 etc. and letters A, B, C

was also recovered along with one small iron saw. One

paper on which various digits were fixed was also

recovered from his jhuggi.

3. As regards alleged recovery of forged Special

Bearer Bonds, the case of the prosecution solely rests

upon the testimony of police officials. PW-3 Inspector

Crl. A. No. 426.99 & 393.99

Gurdeep Singh, PW-7 Constable Richhpal Singh and PW-

8 SI Amar Singh are the witnesses of the alleged

recovery. Inspector Gurdeep Singh has stated that on

11th August, 1988, while he was present at Regal

Cinema along with other police officials, a secret

information was received that one person in possession

of forged barrier bonds was present near Volga

Restaurant for selling the same to intended purchasers.

He organized a raiding party and requested 2-3 public

persons to join the same, but they declined. They then

proceeded to Volga Restaurant and found appellant Som

Prakash present there, with a folder file cover in his

hand. The file cover could be opened and closed using a

zipper. On opening the file cover, 24 bonds, Ex.P1 to

P24 were recovered from it. On interrogation, he

disclosed the names of some other persons including

Siridhar and took the police team to the house of

Siridhar in Janta Colony, Shahdara. Siridhar was found

present there and 218 forged bearer bonds Ex. P25 to

P242 were recovered from his jhuggi. One small iron

saw and one sample of printed paper was also recovered

Crl. A. No. 426.99 & 393.99

from there. The wooden sticks were in the form of small

blocks bearing digits and English alphabets words.

PW-7 Ct. Richhpal Singh and PW-8 SI Amar Singh

have corroborated the deposition of PW-3 as regards

recovery from the possession of the appellants.

4. PW-5 Mr. G.D. Dhingra, Works Manager, Indian

Security Press, Nasik examined the Special Bearer

Bonds alleged to have been recovered from the

possession of the appellants and found the same to be

forged.

5. In their statement under Section 313 of Cr. P.C.,

the appellants denied the alleged recovery from them

and stated that since the police could not arrest the real

culprit, they implicated them in this case, to save their

skin.

6. I do not see any reason to disbelieve the testimony

of PW-3 Inspector Gurdeep Singh, PW-7 Ct. Richhpal

and PW-8 Amar Singh as regards recovery of Special

Bearer Bonds from the possession of appellants. The

appellants do not claim that there was any enmity or ill

Crl. A. No. 426.99 & 393.99

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.

7. It was contended by the learned counsel for the

appellants that no public witnesses were joined in the

raiding party despite the fact that there are a number of

shops situated in the same block in which Volga

Restaurant is situated and therefore any of them could

Crl. A. No. 426.99 & 393.99

have been requested to be a witness to the recovery. It

can not 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.

8. It was also pointed out by the learned counsel for

the appellants that no decoy customer was sent by

police for purchase of these Special Bearer Bonds from

the appellants despite having prior information. In my

view, the contention has no merit. No one is likely to

sell forged bonds to a stranger. Therefore no useful

Crl. A. No. 426.99 & 393.99

purpose would have been served by appointing a decoy

customer and asking him to go to appellant Som Prakash

and ask for forged bonds from him. That, in fact, would

have been counterproductive and would have alerted the

appellants. It was lastly contended that no evidence has

been collected by the Investigating Officer to prove

where these forged bonds were printed and even the

Blocks alleged to have been seized from the appellant

Sridhar were not sent to the laboratory to find out

whether those very Blocks were used for printing the

forged bonds or not. The inability or failure of the

Investigating Officer to find out the place where these

bonds were printed or possibly his having let off the

printer has no bearing on the recovery of these bonds

and cannot be a valid ground for acquittal of the

appellants on this ground alone. Similarly, failure of the

investigating agency to send the Blocks, alleged to have

been recovered from the appellant Sridhar, to the

Laboratory cannot be a valid ground to reject the

recovery of forged bonds from the appellants if the

recovery otherwise stands duly proved. Since, in my

Crl. A. No. 426.99 & 393.99

view, these Special Bearer Bonds are not „bank notes‟ or

„currency notes‟ and consequently charge under Section

489A, 489C or 489D does not stand prove against the

appellants, failure of the investigating agency to send

these Blocks to the laboratory becomes immaterial.

9. Special Bearer Bonds in such a huge quantity are

not such thing as could have been planted by the police

on the appellants from its own coffers. This is also not

the case of the appellants in their statement under

Section 313 of Cr. P.C. that these Special Bearer Bonds

were recovered by the police from some other person

and they have been implicated after letting that person

off.

10. For the reasons given above, I confirm the finding

that Special Bearer Bonds Ex. P-1 to P-24 were

recovered from the possession of appellant Som Prkash

and Special Bearer Bonds Ex. P-25 to P-242 were

recovered from the possession of appellant Sridhar. The

testimony of PW-5 Mr. G.D. Dhingra leaves no doubt

that these Special Bearer Bonds are forged documents.

Moreover, this is not the case of the appellants that

Crl. A. No. 426.99 & 393.99

these Special Bearer Bonds are genuine documents.

Thus, both the appellants were found in possession of

forged Special Bearer Bonds purporting to be issued by

Government of India.

11. Section 489A of India Penal Code provides for

punishment of a person who counterfeits or knowingly

performs any part of the process of counterfeiting any

currency note or bank note. Section 489C provides for

punishment of a person who is found in possession of

any forged or counterfeit currency note or bank note

knowing or having reason to believe the same to be

forged or counterfeited or intending to use the same as

genuine or that it may be used as genuine. Section 489D

provides for punishment of a person who makes or

performs any part of the process of making or buys or

sells or disposes of or has in his possession any

machinery, instrument or material for the purpose of

being used or knowing or having reason to believe that

it is intended to be used for forging or counterfeiting

any currency note or bank note.

Crl. A. No. 426.99 & 393.99

12. The expression „bank note‟ has been defined in the

Explanation to Section 489A of the Indian Penal Code,

which reads as under:

"Explanation - For the purposes of this section and of sections 489B, [489C, 489D and 489E], the expression "bank note" means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the word, or issued by or under the authority of any State or Sovereign power, and intended to be used as equivalent to, or as a substitute for money."

An analysis of the definition given above would

show that the following are the essential ingredients of a

bank note -

(i) It should be a promissory note or encashment

for payment of money to bearer on demand;

(ii) It should have been issued by any person

carrying on business of banking or should

have been issued by or under the authority of

any State or sovereign power; and

(iii) It should be intended to be used as equivalent

to or as a substitute for money.

Crl. A. No. 426.99 & 393.99

13. The Bearer Bonds alleged to have been recovered

from the possession of the appellant qualify the first and

second requirement noted above, but, fail to qualify the

third requirement. A perusal of the Special Bearer Bond

would show that vide this document, President of India

has promised to pay to the bearer, the amount indicated

in the bond on expiry of a period of 10 years from the

date of its sale. Thus, on expiry of 10 years from the

date on which the Special Bearer Bond is issued, its

bearer could have gone to any office or branch of

Reserve Bank of India or State Bank of India or its

subsidiary banks in India and claimed the amount

equivalent to the value of the bond. It cannot be said

that a bond which was encashable only after 10 years

and that too at the branches of specified banks was

intended to be used as equivalent to money or as a

substitute for money. No one could have purchased any

article in the market on payment by delivery of these

Special Bearer Bonds. No one could have repaid his

debt by delivery of a bearer bond. Neither amount

indicated on the bond was payable immediately on

Crl. A. No. 426.99 & 393.99

demand unless 10 years had expired from the date of

issue of bond nor could one have legally passed on these

Bearer Bonds in lieu of currency notes.

14. Though, in view of the definition given in the

explanation to Section 489A of the Indian Penal Code,

the court is not to look upon the definition given

elsewhere for the expression „bank note‟ but, even if

one has to look for dictionary meaning, Special Bearer

Bonds still do not qualify as „bank notes‟. Wikipedia

defines „Bank Note‟ as under:

"A bank note (often known as a bill, paper money or simply a note) is a kind of negotiable instrument, a promissory note made by a bank payable to the bearer on demand, used as money, and in many jurisdictions is legal tender. Along with coins, bank notes make up the cash or bear forms of all modern money. With the exception of non-circulating high- value or precious metal commemorative issues, coins are used for lower valued monetary units, while bank-notes are used for higher values. However some coins may have a significant value depending on the condition and worth. "

Crl. A. No. 426.99 & 393.99

One essential ingredient of a banknote, as per this

definition is that it should be used as money. Since

Special Bearer Bonds issued by Government of India

were neither intended to be nor could not have been

used as money, they cannot be said to be bank note as

defined in Wikipedia.

15. Oxford Dictionary defines „bank note‟ as „bankers

promissory notes specially from a central bank payable

to the bearer on demand and serving as money." Since

Special Bearer Bonds are not intended to serve as

money, they are not covered under the definition of

„bank note‟ as given in Oxford Dictionary.

Therefore, even if a most liberal interpretation is

taken, it cannot be said that the Special Bearer Bonds

issued by Government of India were banknote within the

meaning of the explanation to Section 498A of Indian

Penal Code.

16. The expression "currency note" has not been

defined in Indian Penal Code, however, Oxford

Crl. A. No. 426.99 & 393.99

Dictionary defines „Currency‟ and „Currency note‟ as

under:

"currency - the money or other commodity which is in circulation as a medium of exchange. "

"currency note - a note issued as a medium of exchange"

It cannot be said that Special Bear Bonds issued by

Government of India could have been used as a medium

of exchange. It cannot be treated at par with rupee and

coins. It is not „money in circulation‟ as a medium of

exchange.

17. Since the Special Bearer Bonds, alleged to have

been recovered, from the possession of the appellant are

neither bank note or currency note, office under Section

489A, 489B or 489D is not made out against either of

them.

18. Though, charge under Section 489A, 489C and

489D of Indian Penal Code does not stand proved

against the appellants as the Special Bearer Bonds are

neither bank notes nor currency notes, offence under

Crl. A. No. 426.99 & 393.99

Section 474 of Indian Penal Code stands duly

established against them. Section 474 of Indian Penal

Code, to the extent it is relevant, provides for

punishment of a person who has in his possession any

document knowing the same to be forged and intending

that the same fraudulently be used as genuine if the

documents is of the description mentioned in Section

466 or 467 of the Code. In order to succeed for

conviction under Section 474 of the Indian Penal Code,

the prosecution is required to prove that (i) document

was a forged document; (ii) the accused had the

document in his possession; (iii) the accused knew it to

be forged when he had it in his possession; (iv) the

accused intended dishonestly or fraudulently, that the

document should be used as genuine document.

19. In the present case, the testimony of PW-5 Shri

G.D. Dhingra proves that Special Bearer Bonds Ex. P-1

to P-242 are forged documents. The prosecution has

also been able to prove that these forged documents

were found in possession of the appellants. This is not

the case of the appellants that they did not know that

Crl. A. No. 426.99 & 393.99

these Special Bearer Bonds were forged documents.

Their case is that these documents were not at all

recovered from their possession. 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 such bonds in a

huge quantity coupled with denial of possession by itself

is sufficient to infer the requisite knowledge and

intention on the part of the appellants. This is also not

the case of the appellants that these bonds were not

intended to be used either by sale or by encashment on

maturity. As provided in Section 106 of Evidence Act,

when a fact is especially in the knowledge of a person

the burden of proving that fact is upon him. No doubt,

the fundamental principles of criminal case is that it is

for the prosecution to prove the guilt attributed to the

accused beyond reasonable doubt, but, when the

prosecution has proved all that it could have and the

circumstances proved by it point 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

Crl. A. No. 426.99 & 393.99

compatible with his innocence it is for the accused to

bring that fact in the notice of the court. When forged

documents of this nature, which are not readily available

in the market, are found in possession of a person, and

he does not try to give any explanation for his

possession, does not disclose the source from which the

documents came to him doesn‟t say that the documents

came into his possession without his having knowledge

about their nature, doesn‟t say that he acquired them

believing them to be genuine documents or doesn‟t say

that they were left with him by someone, the court

would be justified in drawing an inference of his having

the required criminal knowledge and intent. Instead of

giving any explanation for their possession of these

forged documents the appellants have chosen to

altogether deny the possession. When an accused is

found in possession of such documents and he fails to

give any satisfactory explanation as to how he came to

possess them, and for what purpose they were in his

possession, the inevitable inference is that he knew that

the documents were not genuine and further that he

Crl. A. No. 426.99 & 393.99

fraudulently or dishonestly intended to use them for

unlawful gains. 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.

20. The Special Bearer Bonds give an authority to their

holder to receive the amount printed on the bond from

the Reserve Bank of India or State Bank of India or any

of its subsidiary banks in India. Hence, these are

documents of the nature specified in Section 467 of

Indian Penal Code and consequently, offence under Sec.

474 of IPC stands duly proved against the appellants.

21. Though the appellants were not charged and tried

for the offence punishable under Section 474 of IPC,

there is no legal impediment in convicting them under

Section 474 of IPC as the offence under Section 474 of

IPC stand established on the basis of very same evidence

Crl. A. No. 426.99 & 393.99

which was led to prove charges under Sections 489A,

489C and 489D of Penal Code.

Section 221 of the Code of Criminal Procedure

which squarely applies to the present case reads as

under:

"221. Where it is doubtful what offence has been committed - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

22. In J.D. Sharma and R.N. Tyagi Vs. State of U.P. and

Anr, AIR 1960 SC 400, the appellant was initially

Crl. A. No. 426.99 & 393.99

convicted by the trial court for the offence under Section

467/471 of IPC. In appeal the High Court set aside the

conviction and ordered re-trial with the directions for

framing alternative charge under Section 477 A of

Indian Penal Code against two of them and a charge for

abetment and in the alternative for offences under

Sections 467 and 477A should be framed against the

third one. The Hon‟ble Supreme Court inter alia held as

under:

"The provisions of Sections 236 and 237 are clear enough to enable a court to convict an accused person even of an offence with which he had not been charged if the court is of the opinion that the provisions of Section 236 apply, that is to say, if a single act is or a series of acts are of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, then the accused can be charged with having committed all or any of such offences, and any number of such charges can be tried at once; or he may be charged in the alternative with having committed some one of the said

Crl. A. No. 426.99 & 393.99

offences and by virtue of the provisions of Section 237 the accused although charges with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Section 236, can be convicted of the offence which he is shown to have committed, although he was not charged with it. In our opinion, therefore, the High Court erred in ordering a retrial of the appellants and should have decided, on the evidence before it, whether any offence had been committed by the appellants. We accordingly allow the appeals, set aside the orders of the High Court directing the retrial of the appellants and remand back the case to it for rehearing of the appeals filed by the appellants."

23. The provisions of Section 221 of Code of Criminal

Procedure being identical to the provisions of the old

Code relied upon by the Hon‟ble Supreme Court, it is

legally permissible to convict the appellants under

Section 474 of the Penal Code, as this court has come to

the conclusion that since the Special Bearer Bonds

Crl. A. No. 426.99 & 393.99

recovered from them are not „bank notes‟ or „currency

notes‟, but are documents of the nature specified in

Section 467 of the Penal Code, the offence under

Section 489A, 489C or 489D does not stand established

though the offence under Section 474 clearly stands

proved against them from the evidence led by the

prosecution.

24. Even otherwise, no prejudice will be caused to the

appellants, from their conviction u/s 474 of IPC, on the

basis of evidence, already led by the Prosecution. The

appellants knew very well that the charge against them

during trial was that they were found in possession of

forged Special Bearer Bonds. The evidence led by the

prosecution proves that they were found in possession of

Special Bearer Bonds. It is only on account of view

taken by this court that the Special Bearer Bonds are

not „bank notes‟ or „currency notes‟, that they cannot be

convicted under Section 489A, 489C or 489D of IPC.

But, since offence under Section 474 of IPC is clearly

made out against them, there is no reason why the

matter should be sent back for amendment of charge

Crl. A. No. 426.99 & 393.99

and fresh trial. Even otherwise, the offence having

taken place way back in August, 1988, it will neither be

just nor in the interest of the appellants to remand back

the case after 21 years without any apparent advantage

to either side.

For the reasons given in the preceding paragraphs,

both the appellants are convicted under Section 474 of

IPC. Keeping in view the fact that the offence took place

more than 20 years ago and the appeals itself are

pending for the last about 10 years, I am inclined to take

a rather lenient view in the matter of sentence. The

appellants are therefore sentenced to undergo RI for

two years each and to pay a fine of Rs. 5,000/- each or to

undergo Simple Imprisonment for three months, in

default. They shall also be entitled to benefit under

Section 428 of Cr. P.C. One copy of this order, alongwith

Trial Court Record, be sent to Trial Court within 3 days

for committing the appellants to prison, to serve the

remaining sentence, if any.

(V.K. JAIN) JUDGE October 28, 2009/acm

Crl. A. No. 426.99 & 393.99