Delhi High Court

Sunil Kumar vs The State(Nct Of Delhi) on 28 March, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on: March 28, 2011

+      CRIMINAL APPEAL NO. 570/2008

       SUNIL KUMAR                                   ....APPELLANT
               Through:      Ms. Anita    Abraham,   Advocate/Amicus
                             Curiae.

                       Versus

       THE STATE (N.C.T. OF DELHI)            .....RESPONDENT

Through: Mr.Sunil Sharma, APP.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated

25.3.2008 in Sessions Case No.136/2003 FIR No.212/2003 under

Sections 489A to 489E P.S. Nabi Karim and the consequent order on

sentence dated 26.3.2008 whereby the appellant Sunil Kumar has

been convicted for the offences under Section 489A, 489C and 489D

IPC and sentenced to undergo R.I. for a period of seven years and to

pay a fine of `100/- for respective offences, in default to undergo R.I.

for a further period of seven days each for respective offences.

2. Briefly stated, case of the prosecution is that on 14 th July, 2003

Inspector S.R.Meena (PW6) while on patrol duty along with Head

Constable Ghanshyam (PW4), Constable Asloop (PW3) and

Constable Gopal at about 6.45 p.m. near Sheela Cinema, Inspector

S.R.Meena received a secret information that a person having

counterfeit currency notes was present on the footpath of Sheela

Cinema. Inspector S.R.Meena decided to conduct a raid and he

requested few persons to join the raiding party but no-one came

forward. Thereafter, on the pointing out of the secret informer,

police party apprehended appellant Sunil Kumar. He was searched

and from his possession 90 counterfeit currency notes of `100/-

denomination each were recovered. All those counterfeit currency

notes were having the same serial number i.e. 6DD 823243.

Counterfeit currency notes were sealed in a packet with the seal of

`SRM‟ and it was taken into possession vide memo Ex.PW3/A.

„Rukka' (Ex.PW2/A) was prepared and sent to the police station for

the registration of case. On the basis of 'rukka', formal FIR was

registered by the Duty Officer A.S.I. Mahender Singh (PW2), site plan

Ex.PW6/B was prepared and the appellant was arrested. On

interrogation, the appellant made a disclosure statement stating

that he was having a printing machine and other material for

counterfeiting the currency notes at his residence. Pursuant to said

disclosure statement, appellant led the police party to his residence

A-23, Gali No.10, Vikas Nagar, Uttam Nagar, New Delhi and from

there, police party recovered 93 more counterfeit currency notes of

`100/- denomination each having same serial number 2GU 2J496J

(collectively Ex.P2), another bundle of 78 counterfeit currency of

`100/- denomination each having the same serial number 8CS

955820 (collectively Ex.P3), 3 genuine currency notes and 3

counterfeit currency notes, an adopter, 5 ink cartridges, 8 printing

papers, 1015 white papers/sheets, a cutter and a printer. The

recovered articles as well as the counterfeit as well as genuine

currency notes were sealed separately with the seal of `SRM‟ and

were taken into possession vide respective memos Ex.PW3/C to

PW3/G. Rough site plan of the residence of the appellant Ex.PW6/E

was also prepared. The sealed exhibits were handed over to Head

Constable Ramesh Tyagi (PW5). Counterfeit currency notes were

sent to Security Printing Press, Nasik for examination. As per the

report of Security Printing Press, Nasik (Ex.PW6/G), currency notes

bearing Nos. 6DD 823243, 8CS955820, 2GU214961, 3 currency

notes found to be counterfeit.

3. On completion of investigation, appellant was challaned and

sent for trial.

4. Appellant was charged under Section 489A, 489C and 489D

IPC. He pleaded not guilty and claimed to be tried.

5. In order to bring home the guilt of the appellant, prosecution

has examined as many as six witnesses.

6. PW1 Sunny is resident of Vikas Nagar, Uttam Nagar, New Delhi.

He has testified that the appellant was resident of A-23, Gali No.10,

Vikas Nagar, Uttam Nagar for the last 8-10 years. PW2 ASI

Mahender Singh has proved the copy of FIR registered by him on the

basis of rukka Ex.PW2/B. PW5 Head Constable Ramesh Tiwari is the

Malkhana Muharir, who stated about the deposit of case property at

Malkhana by the IO SI S.R.Meena and he testified that during the

period in which the case property remained at Malkhana, nobody

tampered with the same.

7. PW6 Inspector S.R. Meena is the Investigating Officer. He has

stated that on 14.07.2003, he was on patrol duty near Sheela

Cinema along with Head Constable Ghanshyam, Constable Gopal

and Constable Asloob at around 6:45 pm he received information

that one boy having in possession of counterfeit currency notes was

present on the footpath of Sheela Cinema. He organised a raiding

party with other police officials. He also requested few passerby to

join the raiding party, but they declined to be part of raiding party.

Accordingly, he along with the police officials, conducted raid and

apprehended the appellant Sunil Kumar on the pointing of informer.

The appellant was searched and 90 counterfeit currency notes of

`100/- denomination each were recovered from his possession. All

the recovered currency notes were having same number i.e. 6DD

823243. He further stated that he converted the recovered

currency notes into a sealed pullanda with the seal of „SRM‟ and

took the packet into possession vide memo Ex.PW3/A. Thereafter,

he prepared the rukka Ex.PW2/A and sent it to the police station for

registration of the case. He further stated that he arrested the

appellant. On interrogation, appellant made a disclosure statement

Ex.PW3/B and pursuant to the disclosure statement, he led the

police party to his residence A-23, Gali No.10, Vikas Nagar and from

there, he got recovered printer, cutter, cartridge, papers, blade as

well as 171 counterfeit currency notes of `100/- denomination each.

He stated that printer, scanner, copier were sealed in one pullanda

and sealed with the seal of „SRM‟, adapter and cartridge were sealed

in another pullanda and sealed with the seal of SRM, the counterfeit

currency notes were sealed in a pullanda and sealed with the seal of

SRM and were taken into possession vide memo Ex.PW3/C, PW3/D

and PW3/E respectively. Cutter and blade were also converted into

a separate pullanda and sealed with the seal of „SRM‟ (Ex.PW3/F).

Aforesaid version of Inspector S.R. Meena is corroborated by the

other witness of recovery, namely, Constable Asloop Khan(PW3) and

Head Constable Ghanshyam Singh(PW4) who deposed to the similar

effect.

8. Statement of the appellant under Section 313 Cr.P.C. was

recorded. The appellant denied the prosecution version in toto and

he claimed that he has been falsely implicated at the instance of

one Pappu who is related to PW3 Constable Asloob Khan. No

witness in defence has been examined.

9. Learned Additional Sessions Judge on consideration of the

prosecution evidence convicted the appellant on three counts under

Section 489A, 489C and 489D IPC and sentenced the appellant

accordingly.

10. Learned Ms.Anita Abraham, Amicus Curiae, on the instructions

of the appellant, at the outset has conceded that the appellant does

not challenge his conviction under Section 489C IPC on merits. She

has confined her arguments to challenge the conviction under

Section 489A IPC and 489D IPC and the quantum of sentence

awarded to the appellant for the offence under Section 489C IPC.

11. Learned amicus curiae for the appellant submits that Section

489A deals with the offence of counterfeiting currency notes or bank

notes and it reads thus:

"489A. Counterfeiting currency-notes or bank-notes.

Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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 world, 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".

12. Learned Amicus Curiae submitted that in order to succeed on

charge under Section 489A IPC, the prosecution was required to

establish beyond doubt that the appellant has counterfeited the

recovered fake currency notes. However, the prosecution has not

led any evidence to this effect. As such, in the absence of any

evidence in this regard, the offence under Section 489A is not made

out.

13. Learned APP, on the contrary has submitted that the

prosecution has been able to establish on record that the appellant

was not only found in possession of 90 fake currency notes of `100/-

denomination each near Sheela Cinema but he also got recovered

171 more fake currency notes of `100/- denomination each from his

residence. Besides that, he also got recovered a printer, scanner, ink

cartridges (black as well as coloured), paper cutter, blade and paper

etc. From this, it can be safely inferred that it was the petitioner

who actually counterfeited the recovered fake currency notes.

14. No doubt, from the testimony of the IO Inspector S.R. Meena,

PW3 Constable Asloob Khan and PW4 Head Constable Ghyanshyam

Singh and in view of above referred seizure memos, it is established

that the appellant got recovered the printer, scanner, ink cartridges,

paper, blade and cutter etc., but this itself, in my considered view, is

not sufficient to conclude that the recovered material was actually

the equipment for printing the counterfeiting currency notes. Those

recovered articles were not sent to CFSL or any other expert for

examination to seek opinion whether the aforesaid

equipment/cutter/paper were used for counterfeiting recovered fake

currency notes. In absence of any evidence in this regard, it is

difficult to conclude that the appellant counterfeited currency notes.

Thus, in my view, prosecution has failed to establish beyond doubt

the charge under Section 489A IPC.

15. Coming to the charge under Section 489D, learned counsel for

the appellant submits that offence under Section 489D relates to

making or possessing instruments or material for forgoing or

counterfeiting currency notes or bank notes. In this regard, learned

counsel for the appellant has submitted that prosecution though has

led evidence regarding recovery of printer, scanner, blade, cutter,

ink cartridges and paper etc. at the instance of the appellant, yet it

has not led any evidence to show that aforesaid recovered

instruments/implements were the equipments for forgoing

counterfeiting currency notes. Learned counsel for the appellant

submitted that neither of those articles seized at the instance of the

appellant were sent to CFSL or some laboratory for seeking opinion

whether those could be used for counterfeiting the currency notes or

bank notes.

16. Learned APP has failed to point out any evidence which could

lead to an inference that aforesaid articles were actually meant for

the purpose of forgoing or counterfeiting currency notes. Therefore,

I find merit in the contention of learned counsel for the appellant

and conclude that prosecution has failed to establish the charge

under Section 489D IPC for want of sufficient evidence.

17. Learned amicus curiae for the appellant has lastly contended

that the sentence of seven years‟ imprisonment awarded to the

appellant is too harsh and it does not commensurate with the

gravity of the offence committed by the appellant. Learned counsel

submitted that the appellant is a young man of 27 years, having

responsibility of his aged mother and he has his whole life ahead of

him. Thus, he deserves at least one chance to relent and repent

and become a useful member of the society. Thus, she pressed for

reduction of the sentence awarded to the appellant.

18. Learned APP, on the contrary, has contended that the

appellant has been held guilty of the offence of possessing the

counterfeit currency notes, which is a grave offence having adverse

impact on the economy of the country. Therefore, learned

Additional Sessions Judge has rightly awarded the maximum term of

imprisonment to the appellant.

19. I have considered the rival contentions. Sentencing of an

accused in a criminal matter is a serious exercise and the quantum

of sentence imposed commensurate with the gravity of the offence

committed by the accused and the circumstances under which the

offence was committed. While dealing with the issue of sentence for

the offences under Sections 3,4 & 6 of Terrorist and Disruptive

Activities (Prevention) Act, 1987, Supreme Court in the matter of

Karamjit Singh v. State (Delhi Admn.), (2001) 9 SCC 161,

wherein the Supreme Court, has inter alia, observed thus:

"7. ......Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such a case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his

fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law.

8. After giving our anxious consideration to the question of reduction of sentence as urged on behalf of the appellant and objected to on behalf of the respondent, we have come to the conclusion that some consideration should be shown to the appellant in the matter. In coming to this conclusion we have taken into account the facts that he has spent a long period, more than thirteen years, in jail; that he was a young man of 21 years when he committed the act giving rise to the case; that the situation then prevailing in the State of Punjab was surcharged with acts of terrorism and several misguided young men were drawn into the movement; that in the meantime the movement has subsided and it could be reasonably taken that the State is free from the menace of terrorism. In taking the decision to show some consideration to the appellant in the matter of punishment we have reposed confidence in goodness of human character which is a part of the personality of every human being. We hope and believe that our confidence will not be belied in the case of the appellant. In the facts and circumstances of the case and the changed social environment which has taken place in the meantime, it is our considered view that the sentence of life imprisonment should be modified to the period already undergone (about 13 years 7 months). Before being released from jail in the case, the appellant will notify the jail authority the place and the address at which he intends to stay, on receipt of which the jail authority will intimate the Superintendent of Police of that place with a request to him to keep the appellant under observation. If the Superintendent of Police finds that the appellant is indulging in any illegal activity which amounts to an offence under any law, he shall immediately send a report to the Registrar General of this Court. With this modification of sentence as noted above, this appeal is dismissed."

20. In the case in hand, the appellant is a young man of 27 years

having responsibility of his aged mother. He appears to have

realized his mistake, thus, in my view, he deserves at least a chance

to mend his ways and become a useful member of the society.

Therefore, taking into account the facts and circumstances of the

case and the quantum of fake currency notes recovered from the

possession of the appellant, I take a lenient view and while,

maintaining the sentence of fine, reduce the sentence of

imprisonment awarded to the appellant from 07 years RI to 06 years

RI.

21. In view of the discussion above, the appeal is partly accepted.

The conviction of the appellant on charges under Sections 489A &