Tej Pratap Singh vs State
2011 Latest Caselaw 3939 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

     %              Judgment reserved on : 04th August, 2011
                    Judgment delivered on: 12thAugust, 2011

+                   CRL.APPEAL NO.898/2011

         TEJ PRATAP SINGH                    ......Appellant
                              Through :   Mr.O.P. Mathur, Adv
                               Versus
         STATE                                ......Respondent
                              Through: Ms.Rajdipa Behura,APP
                              for State.


         CORAM:
         HON'BLE MR. JUSTICE SURESH KAIT

     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 YES
        Digest?

SURESH KAIT, J.

1. Vide this appeal, the appellant has challenged the

impugned order dated 17.02.2011, whereby the appellant was

held guilty under Section 489-B and 489-C of the Indian Penal

Code, 1860 (hereinafter referred to as IPC), and vide order

dated 21.02.2011 the appellant was sentenced to undergo

Rigorous Imprisonment for 03 years u/s 489-B IPC in addition

to payment of `5,000/-. Further he was sentenced to RI for

03 years under Section 489C IPC and a fine of `5000/-.

2. Briefly, the case of the prosecution is that on 06.04.2005

at about 02:30 PM, a secret information was received that one

person, namely, T.P.Singh along with his two-three associates

is selling fake currency notes and that he would come to

Railway Station, Pahar Ganj. On the same day at about 04:00

PM, where he would deal with one person, namely, Mishra.

ASI Gyanender Singh disclosed the secret information with the

senior officers and at about 03:30 PM, ASI Gayanender along

with Ct.Sunil, Ct. Sanjay, Ct. Arun Kumar, Ct. Krishan and Ct.

Bhim reached New Delhi Railway Station in two private cars.

They reached near the entry gate of the Railway Station, New

Delhi and requested the public persons to join the

proceedings, to which they refused.

3. A raiding party was constituted and Ct. Sanjay was

deputed as decoy customer. After taking his personal search

two currency notes in the denomination of `500/- each bearing

Nos.IBS613919 and 8DL63396 were handed over to him and

he was directed to represent himself as one Mishra and deal

with the accused. Ct. Sunil was deputed as shadow witness.

4. At about 04:10 PM, three persons came to the Railway

Reservation Office and the secret informer pointed towards

one of them as T.P.Singh. The decoy customer and the

shadow witness were given directions to deal with the said

person and ASI Gyanendra stood at some distance from there.

At about 04:25 PM Ct.Sanjay the decoy customer gave a pre-

determined indication upon which ASI Gyanendera along with

the raiding party apprehended the three said persons. All of

them revealed themselves as T.P.Singh, Anand and Pintoo.

5. Ct. Sanjay deposed that accused T.P.Singh had handed

over 04 currency notes in the denomination of

`500/- each. Accused Anand and Pintoo also disclosed that

they had currency notes of `40,45,000/- with them.

6. The shadow witness also supported the version of decoy

customer. On taking personal search of accused T.P.Singh,

02 currency notes in the denomination of `500/- each bearing

Nos.IBS613919 and 8DL63396 were recovered from the pant

worn by the accused which were handed over to him by decoy

customer Ct.Sanjay and upon conducting personal search of

accused Pappu Khan, 20 currency notes of `500/- each, which

appeared to be fake were recovered. The recovered currency

notes and the original notes which were handed over to

accused T.P.Singh by the decoy customer were taken into

police possession after sealing them with the seal of 'JK' and

seal after use was handed over to Ct. Sunil.

7. It is the case of the prosecution that during the course of

the further investigation and upon disclosure statement and

pointing out by accused T.P.Singh, one Iqbal Singh was

apprehended. Fake currency notes totaling to the amount of

`4,78,000/- were recovered. All the recovered notes were sent

for expert opinion to Government Press Nasik.

8. The Charges was framed on the accused T.P.Singh,

Anand Das and Pappu Khan for the offence punishable u/s

489-B/34 and 120-B IPC on 06.07.2006 and accused Iqbal

Khan was charged for the offence punishable u/s 489-C and

120-B IPC to which all the accused persons pleaded not guilty

and claimed trial.

9. The prosecution examined seven witnesses. Duty Officer

was examined as PW4, who further proved the registration of

FIR EX.PW-4/A.

10. HC Devi Singh was brought into witness box as PW-1,

who had received two parcels in the Malkhana and further

handed over the same to the concerned official for being sent

for expert opinion to Government Press Nasik.

11. On 06.04.2005 ASI Gyanender Singh (PW-2) on receipt

of a secret information, he along with Ct. Sunil, Ct. Sanjay, Ct.

Krishan, Ct. Arun and Ct. Bhim Singh reached at the parking

of New Delhi Railway Station at about 03:30 PM where the

secret informer joined in the raiding party. He deposed that

he asked five-six persons at the entry gate of the Railway

Station to join the raiding party but none agreed to join. He

deposed that he deputed Ct. Sanjay (PW-3) as a decoy

customer and after taking his personal search, he was handed

over two currency notes of `500/- denomination each having

Nos.IBS613919 and 8DL63396 vide memo Ex. PW-2/A. Ct.

Sanjay (PW-3) was directed to deal with the said person by the

name of Mishra and Ct. Sunil (PW-6) was deputed as a shadow

customer with directions to overhear the conversation of the

deal between Ct. Sanjay and him.

12. PW-2 further deposed that thereafter he along with other

staff reached at Main Gate of Reservation Office and at about

04:10 PM, three persons reached there, out of which secret

informer identified one as T.P.Singh. Ct. Sanjay (PW3) and Ct.

Sunil (PW6) shadow witness dealt with the said three persons

and at about 04:25 PM Ct. Sanjay gave pre-appointed signal

and all the three persons were overpowered by the members

of the raiding party. He identified all the accused persons

correctly in the court and stated that Ct. Sanjay told him that

accused T.P.Singh had given him four currency notes in lieu of

two currency notes of ` 500/- denomination each.

13. On search of accused T.P.Singh, two currency notes

which were recovered from the front pocket of his shirt. On

further search 20 fake currency notes in the denomination of

` 500/- each were recovered from the pocket of the pant worn

by him. He further deposed that on search of accused Anand

Das, 40 fake currency notes in the denomination of `500/-

were recovered from right side pocket of his worn pant and on

search of accused Pappu Khan @ Pintoo, 20 fake currency

notes in the denomination of ` 500/- each were recovered

from the right side pocket of his worn pant. The recovered

currency notes were kept in separate pullandas and sealed

with the seal of 'JK'. The seizure memo Ex.PW-2/B of two

currency notes were handed over to Ct. Sanjay. Seizure

memo of 20 fake currency notes recovered from accused

T.P.Singh was proved as Ex.PW-2/C. Seizure memo of 40

fake currency notes recovered from accused Anand Dass is

Ex.PW-2/D. Seizure memo of 20 fake currency notes Ex.PW-

2/E were recovered from accused Pappu Khan @ Pintoo.

14. ASI Gayanender Singh (PW-2) further deposed that

decoy customer Ct. Sanjay (PW-3) also handed over four fake

currency notes which had been given to him by accused

T.P.Singh, were sealed is separate envelopes and seized vide

memo Ex.PW-2/F. Sealed exhibits were handed over to Ct.

Sunil (PW6), who also corroborated this fact. Further

deposed, he prepared rukka Ex.PW-2/G and handed over the

same to Ct. Sunil who got registered the case.

15. Thereafter, investigation was handed over to SI Suresh

Kumar(PW-7).

16. The witness further correctly identified the case property

when it was produced before the court. Head Ct. Sanjay

(PW-3) corroborated the testimony of PW-2 ASI Gyanender

Singh and deposed that he dealt with accused T.P.Singh

pretending to be as one Mishra and handed over two genuine

currency notes in the denomination of `500/- in lieu of four

fake currency notes of ` 500/- denomination. He also deposed

regarding recovery of the fake currency notes from the

possession of all the three accused persons and corroborated

the testimony of PW-2. He also identified the case property

when it was produced before the Court.

17. Head Ct. Sanjay, who was the decoy customer was

examined as PW-3 and he also supported the testimony of

PW-2 and PW-3.

18. Prosecution also examined SI Jagdish Kumar as PW-5

besides the aforesaid witnesses. He deposed that on

10.04.2005, accused T.P.Singh who was in police custody lead

them to House No.D-105, Sector 10, Noida, U.P. where they

along with SI Suresh Kumar (PW-7), Ct. Sunil (PW-6) and Ct.

Arun Kumar, at the instance of accused T.P.Singh, accused

Iqbal Singh was arrested vide seizure memo PW-5/A. His

disclosure statement Ex.5/B was recorded and pursuant to his

disclosure nine wads of currency notes in the denomination of

`500/- each and 56 loose currency notes in the domination of

`500/- i.e. total 956 currency notes in the denomination of

`500/- each were recovered from the house of accused Iqbal

Singh. All the said currency notes were found to be fake.

They were converted into ten separate parcels and sealed

with the seal of 'SK' and seized vide seizure memo Ex.PW-5/C.

One mobile phone Nokia 2280 was also seized vide seizure

memo Ex.PW-5/D from the possession of accused Iqbal Singh.

The witness correctly identified the case property when it was

produced before the Court. His testimony was corroborated by

the Statement of Ct. Sunil Kumar (PW-6), who had

accompanied him on 10.04.2005 and in whose presence

accused Iqbal Singh got recovered 956 currency notes in the

denomination of ` 500/- each from his house i.e. House No.D-

105, Sector-10, Noida, U.P.

19. Inspector Suresh Kumar (PW-7), to whom investigation

was subsequently handed over by ASI Gyanender Singh was

also brought in the witness box as PW-7.

20. The statement of all the accused persons were recorded

under Section 313 Cr.P.C. All the accused persons pleaded

innocence and stated that they have been falsely implicated in

this case.

21. Accused T.P.Singh stated that he wants to examine one

witness in his defence. However, despite several opportunities,

no defence evidence was led and the opportunities for leading

evidence was finally closed vide order dated 01.11.2010 by

the trial Judge.

22. As discussed above and as per the prosecution case, on

06.04.2005, accused T.P.Singh, Pappu Khan and Anand Das

were apprehended from near Railway Reservation Office,

Pahar Ganj, on receipt of secret information.

23. Mr. O.P.Mathur, learned counsel for the appellant has

argued that secret informer has not been examined by the

prosecution and in view of the judgment of Supreme Court

titled as Bhugdomal Gangaram Vs. The State of Gujarat

1984 (1) SCC 319 wherein it was held that, since secret

informer has not been examined on recording of the evidence

to this effect is inadmissible in evidence.

24. On the other hand, Ms.Rajdipa Behura learned APP

submitted that the prosecution witnesses have duly

established the recovery of fake currency notes from the

possession of the accused person. She also submitted that

the report from the Government Press Nasik duly established

that the said recovered notes are fake and that there is

evidence on record to establish that the accused person had

entered into a criminal conspiracy acquire fake currency notes

with an intention to use them as genuine and that prosecution

has proved its case.

25. Further, learned APP also placed the reliance on the

testimonies of PW2 ASI Gyaneder Singh and PW3 Head Ct.

Sanjay in support of the arguments that the allegations

against accused T.P.Singh, Pappu Khan and Anand Das duly

stand established on record by way of testimonies of these

witnesses.

26. Learned counsel for the appellant submitted that

prosecution witnesses have failed to prove the case of the

prosecution inasmuch as even the place of apprehension of

the accused persons at Mark A in the site plan Ex.PW-7/A has

also not been proved on record.

27. Further submitted that as per cross examination of PW-2

ASI Gyanender Singh, aforesaid three accused persons were

apprehended at the main gate of Railway Reservation Office,

whereas point shown in the site plan Ex. PW-7/A is not near

the distance between parking and reservation counter is about

400-500 meters and both of them fall on the same side.

28. On considering the above arguments advanced before

this Court and gone through the statements of PW-2 and PW-7

Inspector Suresh Kumar who prepared site plan PW-7/A at the

instance of PW2 Gyanender Singh. ASI Gyanender Singh

deposed in his examination-in-chief that the accused persons

were apprehended near Railway Reservation Office, Pahar

Ganj. He clearly identified all the accused persons and

correctly identified currency notes, which were recovered from

their possession. The testimony of PW-2 ASI Gyanender and

PW-3 Head Ct. Sanjay also establishes that two genuine

currency notes of `500/- denomination each bearing

Nos.IBS613919 and 8DL633963, which had been handed over

by the decoy customer to accused T.P.Singh and were also

recovered from his possession the decoy customer were also

recovered from his possession, the fake four currency notes

which were handed over the decoy customer were recovered

from his possession. The other two accused persons namely

Pappu Khan and Anand Das were also apprehended and were

found in possession of fake currency notes as per seizure

memo Ex.PW-2/C, PW-2/D and PW-2/E.

29. I note, the learned Trial Judge has considered evidence on

record i.e. testimony of ASI Gyanender and decoy customer

Head Ct. PW-2 Sanjay Singh, the recovery of currency notes

from the possession of accused T.P.Singh, Anand Dass and

Pappu Khan had been duly established on record. Ct. Sunil

who was examined as PW-6, who was deputed as shadow

customer has also corroborated the testimonies of PW-2 and

PW-3.

30. As arguments advance by the learned counsel for

appellant that the secrete informer has not been examined on

record.

31. I am of the opinion, it do not effect the case of the

prosecution inasmuch as the recovery of currency notes were

in the possession of the accused persons has been duly proved

on record. Further said, mere in admissibility of the evidence

regarding receipt of information from the secrete informer

would not established the entire case of the prosecution as

argued by learned defence counsel.

32. Further argued by learned counsel for the appellant, the

substance of FIR Ex.PW4/A has not been recorded in

corresponding to DD No.14A which has neither been placed

nor proved on record by the Prosecution.

33. In my opinion it loses importance in view of the factum of

registration of FIR. Even Duty Officer PW4 has not been cross

examined. Thus, FIR EX.PW4/A stand duly proved on record.

34. Learned counsel further argued that it is the case of the

prosecution that accused Iqbal Singh was arrested and his

personal search was conducted vide memo Ex.PW7/E. It is

further the case of the prosecution that the lock of the shop/

godown was opened from the key in possession of the

accused. Further, a perusal of personal search memo

Ex.PW7/E shows that nothing was recovered from his personal

search. He argued that this cuts the entire fabric of the

prosecution and suggest that nothing incriminating was

recovered from the shop/godown of house No.D-105, Sector-

10, Noida, UP and that the recovery in question has been

planted upon the accused Iqbal Singh.

35. On the other hand learned APP submitted that it is not a

case of prosecution that the key which was carried by the

accused Iqbal Singh was used to open the house. He submitted

that in these circumstances the fact that nothing was

recovered from his personal search is not relevant. Learned

APP has drawn the attention to the Trial Judge to the testimony

of PW5 SI Jagdish who deposed that pursuant to the disclosure

statement of accused Iqbal Singh ExPW-5/B, nine wads of

currency notes in the denomination of ì 500/- and 56 loose

currency notes in the denomination of ì 500/- were recovered.

The case property was duly identified by the witness in court.

PW-9 Inspector Suresh Kumar also deposed regarding the

recovery of 956 fake currency notes in the denomination of

ì500/- at the instance of accused Iqbal Singh and the case

property duly identified by the witness in the Court.

36. I have gone through the record and the judgment passed

by the Trial Judge. The learned Trial Judge has observed that it

is not a case of the prosecution that the key of the

godown/house bearing No.D-105, Sector 10, Noida, UP was

with the accused Iqbal Singh. Further, the fact reveals the

currency notes were recovered at the instance of Iqbal Singh

and were found to be fake. Thus, the mere fact that the

personal search memo of accused was 'nil' cannot be said to

imply that the recovery has been planted.

37. The Trial Judge has also detailed the submission of the

learned counsel for the accused Iqbal Singh that prosecution

witnesses did not offer their search to accused Iqbal Singh or

his family members despite the fact that admittedly mother,

sister and brother of accused Iqbal Singh were residing in the

premises of D-105, Sector-10, Noida, U.P.

38. The learned counsel for the appellant has relied upon a

judgment of High Court of Orissa titled as Ravinder Nath Prusty

Vs. The State (1984) Crl.L.J.1392.

39. However, a perusal of cross-examination of PW-7

Inspector Suresh Kumar reveals that before entering the

house of accused Iqbal Singh, they offered their search to

mother of accused Iqbal Singh but she refused to take their

search. In the light of the said testimony of PW-7, the

arguments of learned Defence counsel to this effect cannot be

sustained.

40. As regards the submissions of learned counsel that no

independent public person joined the proceedings. On perusal

of the deposition of the witnesses, I find that all the witnesses

had consistently deposed that despite their efficient efforts no

public persons volunteered to join the proceedings. Even

otherwise, it is well settled law that any irregularity or even

illegality during the investigation should not be treated as a

ground to reject the prosecution's case. This issue is no more

res-integra and has already been decided in the following

cases:-

(i) AIR 2001 Supreme Court 142 "State of U.P. Vs. Hari Mohan".

(ii) AIR 1999 Supreme Court 3717 "Leela Ram Vs. State of Haryana".

(iii) AIR 1996 Supreme Court 3035 "State of Rajasthan Vs. Kishore"

(iv) AIR 2004 Supreme Court 1920 "Dhanaj Singh Vs. State of Punjab".

41. Learned counsel for the appellant has taken the plea that

there is nothing on record to suggest that recovery effected

from the jurisdiction of Police Station Noida from house No.

D-105, Sector 10, Noida, U.P. was ever reported to the police

officials of Noida and thus provisions of Section 166 Cr.P.C

have not been complied with. He further argued that non-

compliance of this provision also renders the investigation as

suspect. Reliance has been placed in judgment passed by

this Court in case titled as Chaman Lal Vs. The State

reported as RCR 1987 (1) 208.

42. In this regard, learned APP submitted that PW-7

deposed in his cross-examination that before proceeding in

Noida, which is in U.P., ACP, Dr.Ashok Malik, Anti Extortion

Cell had granted permission though admittedly no such

permission was placed on record. He further explained that

ACP was in contact with the senior officials in Noida regarding

the case. He denied the suggestion that no such fact was

mentioned in the statement of any of the witnesses.

43. Even otherwise, even if it is held that provisions of

Section 166 Cr.P.C. appears to have not been complied with

by the Investigating Officer, however, recovery of the

currency notes has been duly established on record, as is

evident from the consistent testimony of PW-6 and PW-7.

44. It was also discussed above, it has been laid down by the

Apex Court in a catena of judgments that any defect in

investigation or any irregularity or illegality committed by the

Investigating Officer will not thereby render Prosecution's

case untrustworthy nor it is a ground for acquittal of

appellant. Thus, there is no force in the said argument, nor

can it be said to be fatal to the case of the prosecution.

45. The issue raised by the learned counsel for the appellant

that seizure memo Ex.PW2/E, where it is mentioned. A careful

perusal of cross examination of PW-1 Devi Singh, MHC(M)

does reveal that he deposed about a relevant entry in the

malkhana register as per seizure memo Ex.PW2/E.

Moreover, this fact has been explained by two Prosecution

witnesses namely PW-2 ASI Gyanender Singh and PW-3 Ct.

Sanjay in his cross-examination. Both the prosecution

witnesses have stated that though at Point X, seal impression

of 'SK' is written. Both the prosecution witnesses stated that

the though at point X, seal impression of 'SK' is written, but

the same was written by mistake. Further, as per the case of

the prosecution, 1040 currency notes were recovered.

However, as per record only 1038 currency notes were

received in Government Press Nasik implying that there is

tampering with the case property.

46. In this regard PW-7 Inspector Suresh Kumar who was

asked to clarify in his cross-examination about number of

currency notes. He stated in his cross examination that on

10.04.2005, they recovered 09 wads of fake currency notes

and on wads containing and 56 loose currency notes. He

stated that notes were hurriedly counted and inadvertently,

while counting it may have been possible that one or two

currency notes may have been less in one or two wads.

47. Even otherwise, there are sufficient evidence on record

to establish the recovery of currency notes from the accuse

persons. There is also evidence on record to establish that

the said currency notes were not genuine.

48. After going through the evidence on record and

discussion above, I am of the view that there is no infirmity in

the judgment by the learned Trial Judge. Therefore, I am not

inclined to interfere with the same. However, the learned

counsel for the appellant has argued on the sentence of the

appellant having already undergone nearly 03 years and the

unexpired period of sentence is only 04 months and 02 days

as on 19.03.2011 as per the Nominal Roll dated 30.07.2011.

49. I found force in this contention. Therefore, while

maintaining the conviction of the appellant, the sentence of

the appellant is modified to the sentence already undergone.

50. Appeal is partially allowed.

51. Vide order dated 18.03.2011 passed by the learned Trial

Judge, the appellant was released on bail.

52. The personal bond of appellant cancelled and his surety

stands discharged.

53. No order as to costs.

SURESH KAIT, J AUGUST 12, 2011 RS