Criminal Appeal No.475 of 2014

8th August, 2018.

Petitioner Counsel: Mr. NILESH S. GHANEKAR
Respondent Counsel: Mr. S.P. SONPAWALE

Cases Cited:
Umashanker Vs. State of Chhattisgarh, 2001 ALL MR (Cri) 2398 (S.C.)=(2001) 9 SCC 642 [Para 7,13,17,18]
M. Mammutti Vs. State of Karnataka, 1979 ALLMR ONLINE 149 (S.C.) : (1979) 4 SCC 723 [Para 8,18]
Noor Islam s/o. Sadik Ali Vs. The State of Maharashtra, 2016 ALL MR (Cri) 3480=Cri. Appeal No.510/2015, Dt.15.7.2016 (Aur.) [Para 9,14,18]

JUDGMENT

JUDGMENT :- The appellant original accused (hereinafter referred to as "accused") was tried for allegedly committing offences punishable under Sections 489B and 489C, read with Section 34 of the Indian Penal Code, along with some absconding accused.

2. The prosecution had come with a case, that PSI Suresh Bhale of City Chowk Police Station, Aurangabad, was informed by one Police Head Constable Mundhe, at about 19.30 hours on 23.10.2011, that a person is trying to bring a fake currency note into circulation at Kumbharwada Bazar Peth. It was also informed that, that person has been taken in custody. Therefore, PSI Bhale along with Mundhe and other Police officers went to Kumbharwada Bazar Peth. They met Sachin Balaprasad Chandak, who was the owner of A.K. Plastic shop. The person was handed over by said Sachin Chandak to PSI Suresh Bhale. It was disclosed to the informant, that the said person has purchased material by giving fake currency notes. Thereupon, the informant had asked the name of the person. The said person gave his name as Shaikh Nazir Shaikh Failu. He also gave his age and that he is from Jharkhand State, however, presently residing at Chitegaon, Taluka Paithan, District Aurangabad. Two panchas were called and search on the person of the accused was taken. They found one currency note bearing no. 4AL178673 of denomination of Rs. 1000/- in the pocket of the pant of the accused and the said currency note was almost similar to a real currency note. It was then asked to the accused, as to who was along with him. He told that one person was along with him, but he has ran away. His name and address was not disclosed by the accused. It was also disclosed that he had purchased cutlery articles from Sanjay Sangewar. Therefore, informant, panchas and accused went to Sanjay Sangewar's shop. Sanjay Sangewar produced a counterfeit currency note bearing no. 4AL178678. Thereafter, it was informed that the said person had also purchased articles from H.K. Plastic shop belonging to Sachin Chandak. Sachin Chandak produced currency note bearing no. 4AL178639 which was similarly appearing with the real currency note. All these currency notes were seized under the panchanama. Those currency notes were checked at Shraddha Gown House where machine to detect counterfeit note was available. It was confirmed that those currency notes were counterfeit and, therefore, accused was arrested at that place. All the police officers and the accused came back to the police station and thereafter informant lodged the first information report.

3. On the basis of said first information report, offence vide Crime No. I-306/2011 came to be registered. The investigation was undertaken. Statements of witnesses were recorded. The seized currency notes were sent to mint for ascertaining truthfulness. When the accused was in the custody of police, he gave statement and showed willingness that he has some more fake notes and he would produce them. He then also disclosed the name of other person as Shaikh Wahab Shaikh Salman who was cousin brother of the accused. Accused then took panchas and police to the place where he was residing. There was a black raxine bag in the said room. After opening the said bag, 18 currency notes of denomination of Rs. 1000/- were found. All those currency notes were taken in custody and then checked on the machine. It was found that out of those currency notes, 17 were real. Only one currency note bearing no. 4AL178643 was fake. Panchanama to that effect was executed. Other articles were also seized at that time. After completion of the investigation, charge-sheet was filed.

4. Accused was not released on bail. He has been produced before the learned trial court from time to time. Charge was framed at Exhibit 84 for the offence punishable under Sections 489B, 489C, read with Section 34 of the Indian Penal Code. Accused pleaded not guilty and, therefore, trial has been conducted. Taking into consideration the incriminating material, statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, came to be recorded. After hearing both sides, the learned Additional Sessions Judge has come to the conclusion that the prosecution has proved that the accused has committed offence punishable under Section 489B, read with Section 34 of the IPC. He has been sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 25,000/-, in default, to suffer simple imprisonment for 06 months. Further, he has also been held guilty for offence punishable under Section 489C, read with Section 34 of the IPC and he has been sentenced to suffer rigorous imprisonment for 07 years and to pay fine of Rs. 25,000/-, in default, to suffer simple imprisonment for 06 months. This order of conviction is under challenge in this appeal.

5. It has been vehemently argued on behalf of the appellant original accused, that PW 2 Sanjay Sangewar, who is stated to be the person from whom certain articles were purchased by the accused and at that time, accused had handed over currency note of denomination of Rs. 1000/-to him. He has also stated that the accused was found possessing two currency notes of Rs. 1000/-each on his person at that time. He has not stated anything that the accused was found possessing Rs.920/- because it was his case that the accused had purchased bangles worth Rs. 80/- and cash of Rs. 920/- was returned to the accused. The learned trial court has failed to consider the improvements and omissions in his evidence. Further, he has given sequence of events contrary to the sequence that has been told by PW 04 Sachin Chandak, another person who was present at that time. The testimony of PW 05 Umesh Thakkar would show that he had verified the currency note at the request of PW 02 Sanjay Sangewar. At a point of time i.e. till he was handed over with the currency note, in order to have verification, he is corroborating the prosecution. However, the incident told by him, had not taken place, rather those events have also been seen by some other person. PW 06 Vishnu Mundhe is the Police Head Constable who claim to have received phone call from PW 04 Sachin Chandak. He had gone along with PW 01 PSI Suresh Bhale to Kumbharwada. But then, he has not stated anything about the second transaction which, according to the FIR, was in the shop of PW 04 Sachin Chandak. He says only about purchase of articles and handing over of fake note to PW 02 Sanjay Sangewar. The prosecution has also not explained as to why PW 02 Sanjay Sangewar or PW 04 Sachin Chandak had not lodged any FIR.

6. Learned Advocate for the appellant further argued that PW 01 PSI Suresh Bhale and PW 06 Vishnu Mundhe have not stated anything about Rs. 920/- which were returned by PW 02 Sanjay Sangewar. PW 03 Pranjal Vyavahare is the panch. He says that three currency notes were seized in his presence and then panchanama was executed. But in his cross, he has clearly stated that the three currency notes were already on the table in the police station. The question, therefore, arises how he would have seen accused possessing those currency notes. PW 07 Ajay Pardeshi was another panch for the panchanama that has been allegedly drawn under Section 27 of the Indian Evidence Act. He has stated that the accused had taken them and the police to his room and thereafter certain currency notes were produced by him from a bank. It is required to be seen, whether such kind of disclosure would amount to 'possession' and knowledge thereof to the accused. The said panchanama also cannot be considered as panchnama of search of the house because relevant factors have not been proved at all. PW 08 Nilesh Jadhav was Assistant Manager, Currency Note Press, Nashik, who has stated that, in all 21 currency notes were sent for inspection and report. Out of that, all 21 notes were found to be counterfeit. Accordingly, he has given report Exhibit 53.

7. Learned Advocate for the appellant further argued that PW 09 Sunita Chande and PW 10 Dashrath Salve were stated to be the eye witness at the time when accused was grabbed and then handed over to police. They have halfheartedly supported prosecution. PW 11 Shaikh Akmal Mustafa is the Investigating Officer. None of the witnesses have stated that after the accused was caught hold, he had ever tried to flee away. Other persons are not claiming that somebody else was with the accused. Under such circumstance, when his conduct was not to flee away, then note of the said behaviour is required to be taken. All the prosecution witnesses have not stated that the alleged counterfeit currency was sealed immediately at the spot. But it appears that the same has been sealed at some later point of time. The prosecution has failed to prove that the accused had mens rea to commit the offence. He relied on decision of the Hon'ble Supreme Court in the case of Umashanker Vs. State of Chhattisgarh [(2001) 9 SCC 642] : [2001 ALL MR (Cri) 2398 (S.C.)], wherein it has been observed thus :-

"7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary possessors or users.

8. A perusal of the provisions, extracted above, shows that mens read of offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect."

8. Reliance has also been placed on behalf of the appellant, on the decision of the Hon'ble Supreme Court, in the case of M. Mammutti Vs. State of Karnataka [(1979) 4 SCC 723] : [1979 ALLMR ONLINE 149 (S.C.)], wherein it has been held that "where it is not shown that the appellant had knowledge or reason to believe that the notes were counterfeit, the conviction was not proper. Presumption of knowledge from mere possession can only be drawn if the notes were apparently counterfeit."

9. Learned Advocate appearing for the appellant also submitted that the testimony of the Investigating Officer, informant and the panchas does not disclose that they had offered accused to take search on the person of panchas and the police party before actually searching the person of the accused. He relied on the decision of this Court in Noor Islam s/o. Sadik Ali Vs. The State of Maharashtra, Criminal Appeal No. 510 of 2015 : [2016 ALL MR (Cri) 3480], decided on 15th July 2016. He, therefore, submitted that the learned trial court failed to consider all these aspects and, therefore, the conviction awarded to the appellant cannot be allowed to sustain.

10. Per contra, it has been argued on behalf of the respondent State, that out of the three currency notes those were seized and found on the person of the accused, the accused has tried only two, to bring it in circulation i.e. by using it for payment of the purchased articles. Therefore, proper explanation has been given by the Investigating Officer as to exactly how much currency notes were found in possession of the accused. All the witnesses are corroborating with each other. When accused was found having such currency notes, then the knowledge will have to be attributed. The FIR has been lodged only after confirmation. Even the panchanama under Section 27 of the Indian Evidence Act has been proved. Accused was the only person who had knowledge about the place where he has kept the currency notes. Under such circumstance, the said panchanama is also proved beyond reasonable doubt. He also submitted that the facts in the cases which are relied by the learned Advocate for the accused were different and, therefore, the ratio therein is not applicable.

11. PW 01 Suresh Bhale is the police officer who had received information from PW 06 Vishnu Mundhe. PW 06 Vishnu Mundhe has stated that when he was on duty at about 07.15 p.m. on 23.10.2011, he had received phone call from PW 04 Sachin Chandak, owner of H.K. Plastics, Kumbharwada, that he has got a boy using counterfeit currency note. He gave that information to PSI Suresh Bhale and all of them went to Kumbharwada thereafter. If we consider the testimony of PW 01 Suresh Bhale, he supports PW 06 Vishnu Mundhe to that extent. However, thereafter when they went there, PW 04 Sachin Chandak had handed over that person to PSI Suresh Bhale and it was told that he was using currency note of Rs. 1000/- denomination. However, PW 06 Vishnu Mundhe had stated that they found PW 04 Sachin Chandak and PW 02 Sanjay Sangewar had caught hold of one person and Sanjay Sangewar was asked by PSI Suresh Bhale about the incident. Sanjay Sangewar had told them that the accused had purchased article worth Rs. 20/- and gave currency note of Rs. 1000/-. He had returned Rs. 920/- to the accused. Here, PW 01 PSI Suresh Bhale has stated that he had made enquiry with PW 04 Sachin Chandak first and then name of Sanjay Sangewar was revealed. PW 01 PSI Suresh Bhale has not stated that PW 02 Sanjay Sangewar had made a statement before him that amount of Rs. 920/-was returned by PW 02 Sanjay Sangewar to the accused. Though both of them have stated that search on the person of the accused was undertaken at that point itself, but they are silent on the point that amount of Rs. 920/- in the form of real currency note was found on the person of the accused.

12. PW 03 Pranjal Vyavahare is panch at the spot. He has stated that one currency note was found with PW 04 Sachin Chandak, one with PW 02 Sanjay Sangewar and third with Shaikh Nazir Failu i.e. accused. These three currency notes were seized by police in his presence and thereafter they were checked in the shop of Thakkar. His testimony is also silent on the point of amount of Rs. 920/-which ought to have been on the person of the accused. Prosecution has not come with a case, that the said amount of Rs. 920/- was with the coaccused and, therefore, it could not be found on the person of the accused. When PW 02 Sanjay Sangewar has categorically stated that the accused was a person who had purchased bangles worth Rs. 80/- from his shop and then gave currency note of Rs. 1000/-, he had returned amount of Rs. 920/- to him, then the prosecution was bound to explain where the said amount has gone.

13. It appears that PW 02 Sanjay Sangewar has given the sequence where the accused had gone and how he was caught in different manner than PW 04 Sachin Chandak. According to PW 04 Sachin Chandak, accused was about to purchase some articles but then Sanjay Sangewar came there and asked him to catch the person and thereafter the accused was caught hold of. According to PW 02 Sanjay Sangewar, he had already checked the currency note from Umesh Thakkar before police arrived. But none of the witnesses i.e. PW 02 Sanjay Sangewar, PW 04 Sachin Chandak and PW 05 Umesh Thakkar have stated what were the different features which made them to realize that the said note is fake note. PW 02 Sanjay Sangewar has stated that the said currency note was somewhat thick and they found that the shining line was missing. That means, they were able to make out that the currency note allegedly given to PW 02 Sanjay Sangewar and PW 04 Sachin Chandak was fake. Only on the basis of the same, mens rea cannot be presumed on the part of the accused. The Hon'ble Supreme Court in the case of Umashanker [2001 ALL MR (Cri) 2398 (S.C.)] (supra), has observed about the object with which Sections 489A to 489E of the IPC have been enacted. It is specifically pointed out that the mens rea is the basic ingredient to prove the said offences.

14. It is further to be noted that PW 04 Sachin Chandak had made many improvements in his statement. In his statement, he has stated that the accused had given one currency note of Rs. 1000/- denomination. That means, even the accused intended to give that currency note to him and then use it for the ulterior motive. None of these witnesses, including the police witnesses and panch witness have stated that before search on the person of the accused was taken, they had offered the accused to take search of the police persons as well as panchas. In the case of Noor Islam s/o. Sadik Ali [2016 ALL MR (Cri) 3480] (supra), this Court in para 10 has categorically stated that "It was necessary to establish that proper procedure for search was followed and personal search was offered to the accused."

15. The prosecution has also led evidence in respect of other currency notes alleged to have been found in the room which accused was occupying. In order to prove that search, PW 07 Ajay Pardeshi was examined. He has stated about the memorandum that was given by the accused and then he says that as per the say of the accused, they went to the rented room. Accused produced 18 currency notes of Rs. 1000/-each from a bag and then the bank slip of Rs. 20,000/- as well as railway ticket was produced. The most important point to be noted is that, according to this witness, accused had produced one black bag from Farshi rack (rack made up with stones). But his testimony is silent as to who else was present in the room and how they had entered the room. If we peruse the panchanama, it says that the accused pointed out towards the room and then they entered the room by opening the door. It is hard to believe that the room would have been kept open by any person. The Investigating Officer also does not say that he had made enquiry regarding the said room to the adjoining persons. He had not made any enquiry as to who was present in the room just prior to their entry in the room. The memorandum says that the accused was arrested at about 21.30 hours on 23.10.2011. The memorandum was recorded between 21.40 to 21.50 hours, that means, within ten minutes and then they went to the room at about 22.05 hours. As per PW 01 Suresh Bhale, entire police staff went to Kumbharwada Bazar Peth at 19.30 hours. That means, even since prior to 19.30 hours, the said room which was searched by the Investigating Officer was in possession of somebody else and not the accused. Therefore, whatever has been seized in pursuant to alleged panchanama under Section 27 of the Indian Evidence Act, cannot be attributed to accused. No doubt, all the currency notes i.e. 03 seized at Kumbharwada Bazar Peth and 18 seized in the room were sent to Currency Note Press, Nashik, and all are found to be fake / counterfeit. As regards the three currency notes allegedly seized in pursuant to panchanama Exhibit 21, were not sealed immediately. PW 03 Pranjal Vyavahare does not say that those currency notes were sealed in a packet in his presence. No doubt, such statement definitely appears in the said panchanama, however, not orally supported by the panch.

16. PW 02 Sanjay Sangewar or PW 04 Sachin Chandak have not explained as to why they have not lodged any report with the police. PW 01 PSI Suresh Bhale also does not explain as to why he was required to file report on behalf of the State. PW 02 Sanjay Sangewar and PW 04 Sachin Chandak have not stated that the accused had made any kind of attempt to flee away. The said conduct is definitely required to be taken into consideration.

17. Even if for the sake of arguments it is accepted that the accused had given the alleged fake currency note of Rs. 1000/- to PW 02 Sanjay Sangewar and then he was found possessing one more such currency note, yet, in order to draw presumption that he had the requisite mens rea, some more evidence ought to have been produced. Knowledge of the accused himself, that though he was able to make the difference between the real and counterfeit, he was trying to use it. The facts in Umashanker's case [2001 ALL MR (Cri) 2398 (S.C.)] (supra) are almost same. Even in that case, the accused was charged that he had purchased 01 kg. of mango costing Rs. 05/- and then he gave fake currency note of Rs. 100/- to PW 04 who doubted its genuineness. She had showed that currency note to PW 02 and PW 07, who also stated that it was fake currency note. Then the accused was handed over to the police who recovered 13 more such fake currency notes from him. He was also prosecuted for the offence punishable under Section 489-A, 489-B and 489-C of the IPC. It has been observed that "the learned trial Judge on the basis of evidence of PW 02, PW 04 and PW 07, that they were able to make out that the currency note to have been given to PW 04 was fake, "presumed" such a mens rea." On the date of the incident, the appellant therein was said to be 18 years old student and, therefore, on the facts of the case, presumption was drawn by the trial court. But the Hon'ble Supreme Court has observed that it was unwarranted.

18. Here, in this case also, the accused was 20 years old at the time of the incident. Therefore, the said ratio and decision in Umashanker's case [2001 ALL MR (Cri) 2398 (S.C.)] (supra) is definitely applicable here. The facts of the case, in Noor Islam s/o. Sadik Ali [2016 ALL MR (Cri) 3480] (supra) are also same. In the same manner, when the accused purchased certain article and tried to give the counterfeit currency notes and then certain more currency notes were seized from him, the accused therein was prosecuted. In that case also, this Court had relied on Umashanker's case [2001 ALL MR (Cri) 2398 (S.C.)] (supra) as well as M. Mammutti's case [1979 ALLMR ONLINE 149 (S.C.)] (supra).

19. Taking into consideration such kind of evidence and the basic fact that important ingredient of mens rea was not proved by the prosecution beyond reasonable doubt, in the form that the accused was knowing or had reason to believe that the currency notes, he was possessing were counterfeit or forged. The learned trial court has not taken into consideration the basic ingredient and, therefore, the conviction and sentence cannot be maintained.

20. I, therefore, proceed to pass the following order :-

(a) The appeal is allowed.

(b) The impugned judgment and order passed in Sessions Case No. 55 of 2012, on 30.06.2014, by the Additional Sessions Judge, Aurangabad, convicting the appellant for the offence punishable under Sections 489B, 489C, read with Section 34 of the Indian Penal Code, is hereby quashed and set aside. The appellant original accused is hereby acquitted of the offences punishable under Sections 489B, 489C, read with Section 34 of the Indian Penal Code. The appellant original accused be set at liberty forthwith, unless his custody is required in any other offence. Fine amount paid, if any, be refunded to the appellant.

Appeal allowed.