Laloo @ Laloo Ghai vs State
2010 Latest Caselaw 1223 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl.A.No. 17/2005

%                     Date of Decision: 4th March, 2010

#     LALOO @ LALOO GHAI                   ..... Appellant
!                 Through:         Mr. Yogendra Singh, Adv.


                      versus

$     STATE                           ..... Respondent
^                     Through:     Mr. Jaideep Malik, APP

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


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?               No

      2.    To be referred to the Reporter or not?            No

      3.    Whether the judgment should be
            reported in the Digest?                           No


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

1. This is an appeal against the judgment dated 9th

November 2004 and Order on Sentence dated 19th November

2004 whereby the appellant was convicted under Section

120B, 489D and 489C of IPC and was sentenced to undergo

R.I. for four years and to pay fine of Rs.1,000/- or to undergo

R.I. for two months in default under Section 120B of IPC, R.I.

for four years and to pay fine of Rs.1,000/- or to undergo R.I.

for two months in default under Section 489C of IPC and was

further sentenced to undergo R.I. for 6 years and to pay fine of

Rs.1,000/- or to undergo R.I. for two months in default under

Section 489D of IPC.

2. On 19th December 2001, an information was received by

Police Control Room that one person carrying counterfeit

currency notes in the denomination of Rs.100/-, had been

apprehended near Sector 12 of R.K. Puram. The information

was recorded vide DD No. 26A. On receipt of copy of DD,

Investigating Officer of this case went to the spot where he

recorded the statement of Constable Chander Pal. The

complainant Const. Chander Pal alleged that on that day, he

was going to Paschim Vihar in a bus plying at Route No. 442.

When the bus reached Bikaji Cama Place, one person, whose

name later on came to be knonw as Sanju Singh Gaud,

handed over a 100 Rupee note to the Conductor to purchase

the ticket. When the Conductor, on checking the note, told

him that it did not appear to be genuine, that person became

nervous and tried to get down from the bus. He was

apprehended with the help of a commuter Anil Kumar and on

his search, 24 currency notes, which appear to be counterfeit

currency, were recovered from his possession. On

interrogation of Sanju Singh Gaud, he named two persons

including the appellant Laloo residing in his neighbourhood.

He took the police to the place of the appellant Laloo and on

the search of Laloo, 9 counterfeit currency notes in the

denomination of Rs.100/- were recovered from his possession.

3. The prosecution examined as many as eight witnesses in

support of its case. The appellant Laloo examined himself as a

witness.

4. PW-5 SI Arun Kumar has stated that he interrogated the

accused Sanju Singh Gaud after his arrest on 19th February

2001. He led the police party first to the place of Subhash, co-

accused of the appellant. When Subhash was interrogated, he

took them to the Jhuggi of the appellant Laloo. On his search

10 currency notes in the denomination of Rs.100/- were

recovered from the pocket of his shirt and were seized vide

memo Ex.PW 5/6. He further stated that on interrogation, the

appellant disclosed that the currency notes were being

prepared by his co-accused Brij Pal on a Xerox machine. The

appellant Laloo then took them to the place of Brij Pal, where

one Xerox machine was found lying in his house underneath a

cot. He has identified the photocopy machine as Ex.P-56. 11

currency notes in the denomination of Rs.100/- were found

from the printer side of the machine along with white paper,

which appear to be identical to the paper used for currency

notes. These currency notes as well as Xerox machine were

seized by him. He has identified Ex.P-35 to P-43 as the

currency notes which were recovered from the possession of

the appellant Laloo.

5. PW-6 is a Director of Prime Pat Communications Pvt.

Ltd., Naraina Industrial Area, New Delhi. He has stated that

one Scanner and Copier were sold by him vide receipts

Ex.PW6/1 and 6/2. He identified Ex.P-56 as the machine,

which was sold by him, vide these receipts.

6. PW-3 Sh. Harsh Vardhan is the Senior Scientific

Assistant of FSL, who examined counterfeit currency notes

seized in this case and opined that the same were counterfeit

currency. His report in this regard is Ex.PW 3/1. He also

opined that these currency notes appear to be coloured

photocopy of genuine currency notes. He also identified Ex.P-

1 to P-54 as the currency notes which were examined by him.

7. In his statement under Section 313 of Cr.P.C., the

appellant denied the recovery of currency notes from his

possession. He also denied having taken the police to the

place of Brij Pal and stated that he has been falsely implicated

in this case.

8. When the appellant came in the witness box as DW-1, he

stated that he was an autorickshaw driver and on 20th

February 2001, some police officials came to the stand where

he used to park his autorickshaw and asked other

autorikshaw drivers to send him to Police Station R.K. Puram

and meet Arun Kumar. When he went to the Police Station

and met Arun Kumar, three persons present in the Police

Station were shown to him and he was asked as to whether he

knew them. He however replied in the negative. Thereafter, he

was falsely involved in this case.

9. Testimony of PW-5 SI Arun Kumar, which I see no reason

to disbelieve shows that the appellant was found in possession

of currency notes Ex. P-35 to P-43. The testimony of PW-3 Sh.

Harsh Vardhan coupled with this report Ex.PW 3/1 shows that

these notes were counterfeit currency. There is no evidence to

rebut the testimony given by PW-3 and in fact this is not the

case of the appellant that the currency notes alleged to have

been recovered from his possession were genuine currency.

10. In order to succeed in a charge under Section 489-C of

IPC, the prosecution is required to prove the following:

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

forged or counterfeit;

(ii) that the accused was in possession of it;

(iii) that he at the time of his possession knew, or had reason

to believe, that it was forged or counterfeit;

(iv) that he intended to use it as genuine or that it might be

used as guanine.

11. This is not the case of the appellant that though the

currency notes Ex. P-35 to P-43 were found in his possession,

he did not know and did not have any reason to believe the

same to be counterfeit currency. This is also not his case that

the currency notes were given to him by someone and he had

accepted the same without suspecting them to be counterfeit

currency. His case is that these currency notes were not at all

recovered from his possession.

12. 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 appellant came into possession of such

currency is sufficient to infer the requisite knowledge and

intention on the part of the appellant. 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 appellant knew or had

reasons to believe that the currency notes found in his

possession were counterfeit currency.

13. In order to succeed in charge under Section 489D of IPC,

the prosecution must prove the following:

(i) That the thing in question was machinery,

instrument or material necessary for or used in

forging or counterfeiting a currency-note or bank-

note.

(ii) That the accused made, or performed, some part of

the process of making the machinery, instrument,

or material, in question; that he bought, sold, or

disposed of it or that it in his possession.

(iii) That the object of the accused was that such

machinery, instrument, or material might be used

for the purpose of forging or counterfeit currency-

note or bank-notes; or that he knew, or had reason

to believe, that the same was intended to be used for

such purpose.

14. In the present case, there is absolutely no evidence that

the appellant Laloo had made or performed any part of the

process of making 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. The testimony

of PW-3 Sh. Harsh Vardhan does not show as to who had

purchased the photocopier, found in the house of Brij Pal, co-

accused of the appellant Laloo. The photocopier found in the

house of Brij Pal cannot be said to be in possession of

appellant Laloo. There is no evidence of the appellant Laloo

having photocopied the counterfeit currency notes or having

helped Brij Pal or any other person in preparing coloured

photocopy of currency notes. There is no evidence of the

photocopier found in the house of Brij Pal having been

purchased by the appellant. There is no evidence of paper

lying in the house of Brij Pal having been purchased by the

appellant. Therefore, there is absolutely no evidence against

the appellant Laloo to prove the substantive offence

punishable under Section 489D of IPC.

15. As regards charge under Section 120B of IPC, the order of

the trial court does not show whether the appellant has been

convicted under Section 120B of IPC read with Section 489D of

IPC or under Section 120B read with Section 489C of IPC or

under Section 120B read with Section 489C and 489D of IPC.

The only evidence against the appellant Laloo, besides recovery

of counterfeit currency from him, is that he led the police to

the place of Brij Pal where a coloured photocopier was found

and some counterfeit currency notes were recovered from the

printer part of the photocopier along with some paper which

appeared to be like the paper used for printing currency notes.

The evidence produced by the prosecution at best proves that

the appellant knew that Brij Pal was making counterfeit

currency in his house in Vasant Vihar. If the appellant had

been procuring the counterfeit currency from Brij Pal as is

evident from his taking the police to the place of Brij Pal,

where coloured photocopier along with counterfeit currency

and some paper was found, that by itself is not sufficient to

prove his involvement in the making of counterfeit currency

using a coloured photocopier for this purpose. In fact

according to PW-5, when he interrogated the appellant, he told

him that currency notes were being prepared by Brij Pal with

the help of a Xerox machine. Therefore, the offence under

Section 120B of IPC read with Section 489D thereof is also not

made out against the appellant.

16. In order to make out an offence under Section 489B of

IPC the prosecution must prove the following:

(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.

17. The act of the accused in disclosing the name of Brij Pal

to the police and leading the police party to the house of Brij

Pal where coloured photocopier along with counterfeit currency

and paper were found, when seen in the light of recovery of

some counterfeit currency notes from his possession, leaves no

reasonable doubt that the appellant had bought or received

counterfeit currency from Brij Pal knowing or having reason to

believe the same to be forged or counterfeit and, therefore, the

offence under Section 489B of IPC is clearly made out against

him. Since the offence under Section 489D and 489B carry

identical punishments, it is permissible for the Court to

convict him under Section 489B of IPC without his specifically

having been charged for this offence, when all the necessary

ingredients constituting offence punishable under Section

489B of IPC has been duly conveyed to him in the charges that

were framed against him.

18. For the reasons given in the preceding paragraphs, the

appellant is convicted under Section 489B and 489C of IPC.

19. It transpired during the course of arguments that the

appellant has already spent about four and a half years in

judicial custody including the remission earned by him during

the period he was in jail. Taking into consideration all the

facts and circumstances of the case, the appellant is sentenced

to undergo R.I. for the period already spent by him in custody

under Section 489-B and 489-C of IPC. He is also sentenced

to pay fine of Rs.1,000/- each or to undergo S.I. for two

months each in default under Section 489C and 489B of IPC.

The appellant is granted two weeks' time to deposit the

amount of fine with the trial court. In the event of his failure

to pay the fine, he shall surrender before the trial court within

two weeks from today to undergo the sentence awarded to him

in default of payment of fine and compliance.

Crl.A. 17/2005 stands disposed of.

One copy of this order be sent to trial court for

information.

(V.K.JAIN) JUDGE MARCH 04, 2010 Ag