The inconsistency and discrepancy in the evidence of the
prosecution witnesses casts a serious doubt on the prosecution
case. The prosecution having failed to establish the guilt of
the accused persons beyond reasonable doubt, the conviction
cannot be based solely on the explanation given by the
accused No.1 in his statement under Section 313 of the
Criminal Procedure Code. {Para 16}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1060 OF 2019
Jabbar Isak Shaikh Vs V/s. The State of Maharashtra
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATE : 6th DECEMBER, 2021
This appeal is directed against the Judgment and Order
dated 21st January 2019 in Sessions Case No.420 of 2016,
Greater Mumbai.
2. By the impugned Judgment, the learned Additional
Sessions Judge, Greater Mumbai, has held the Appellants
(hereinafter referred to as the Accused Nos.1 and 2) guilty of
offences under Sections 489 (B) and 489 (C ) read with 34 of
Indian Penal Code. They have been sentenced to undergo
Rigorous Imprisonment for ten years with fine of Rs.10,000/-
in default six months for offence under Section 489 and five
years with fine of Rs.5,000/- in default three months in
respect of offence under Section 489 C read with 34 of Indian
Penal Code.
3. The case of the prosecution in brief is that on 15th March
2016 PW-1 Arif Khan police Naik attached to Sion Police
Station received secret information that two persons from
West Bengal were in possession of counterfeit notes. He passed
on the information to PW-5, Mr. Santosh Gaikwad, A.P.I. at
Sion Police Station. PW-5 arranged a trap and he along with
PW-1 and other police personnel proceeded near Krushna
Bhuvan, Bus Depot, Sion. They saw one person offering a note
of Rs.1,000/-to a taxi driver and later to the owner of a
grocery shop and asking them for change. They refused to
accept the currency note. While the said person was
proceeding to another shop, PW-5 and the other police
personnel caught him. PW5 introduced himself and the other
members of the police staff and took search of the said person
in presence of the panchas and recovered nine notes in
denominations of Rs.1,000/- each from the said person. The
said notes, which appeared to be counterfeit notes, were
seized under Panchanama.
4. Accused No.2 was arrested on 17th March 2016.
Pursuant to the disclosure statement made by him, 10
currency notes of Rs.1,000/- denomination were recovered
from his house and seized under Panchanama at (Exh.29)
drawn in presence of PW-2 Madan Sharma. Investigating
Officer recorded statements of the witnesses. The said notes
were send to Currency Press Note, Nashik Road for opinion
and it was opined that the said notes were counterfeit notes.
Upon completion of the investigation, PW-5 filed the
chargesheet against both the accused for offences under
Section 489B and 489 C of the Indian Penal Code.
5. The accused pleaded not guilt to the charge and claimed
to be tried. The prosecution in support of its case examined
five witnesses. The statements of the accused were recorded
under Section 313 of the Code of Criminal Procedure, 1973.
The accused No.1 admitted that his personal search was taken
near Krushna Bhuvan, Bus Depot, Sion and nine currency
notes of denominations of Rs.1,000/- were recovered from his
possession and same were seized under Panchanama. He has
admitted that these notes are counterfeit notes. The accused
No.1 has in fact admitted almost all the incriminating
circumstances appearing not only against him but also against
accused No.2. The defence of the accused No.2 is total denial.
6. Learned Sessions Judge after considering the evidence
on record has observed that the notes which were forwarded
to Nasik Press for opinion at Exh. 25 are counterfeit notes.
Learned Sessions Judge has further observed that the
prosecution has proved that the nine notes were recovered
from the possession of accused No.1 whereas 10 counterfeit
notes were recovered pursuant to the disclosure statement of
accused no. 2. Learned Sessions Judge has taken note of the
fact that though the answers given in the statement under
Section 313 of the Code of Criminal Procedure cannot be
made basis for conviction, the same can be used for
appreciating the evidence adduced by the prosecution.
Learned Sessions Judge held that the prosecution has proved
that the accused were in possession of counterfeit notes and
that the accused have not offered any explanation. Learned
Sessions Judge therefore, held that the prosecution has proved
the essential ingredients of 489B and 489C and thus,
convicted them as stated above. Being aggrieved by
conviction and sentenced, the Appellants have preferred this
appeal.
7. Heard Mr. Neville Deboo, learned Counsel for the
Appellants and Mr. S. V. Gavand, learned APP for the State. I
have perused the records and considered the submissions
advanced by learned Counsel for the respective parties.
8. The charge against the Appellants is that they were in
possession of counterfeit notes and that they had used the said
notes as genuine notes. The accused are therefore charged
for offences punishable under Sections 489B and 489C read
with 34 of the Indian Penal Code, which read thus:-
9. In Umashankar Vs. State of Chattisgarh, AIR 2001 SC
2074, the Apex Court has observed that :-
“7. Section 489 A to 489 E deal with various
economic offences in respect of forged or
counterfeit currency notes or Bank notes. The
object of 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 bank notes. The currency notes are,
inspite of growing accustomedness to the credit
cards system, still the back bone of the commercial
transactions by multitudes of in our country. But
these provisions are not meant to punish unwary
possessers or users.
8. A perusal of the provisions, extracted above
shows that mens rea of offences under Section 489
B and 489 C is “knowing or having reason to
believe the currency notes or bank notes 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 note or bank note is
not enough to constitute offence under Section 489
B of IPC. So also possessing or even intending to
use any forged or counterfeit currency note or bank
notes, is sufficient to make out a case under Section
489 C in the absence of the mens rea noted above.”
10. In the instant case it is alleged that on 15th March 2016
PW1-Arif Khan, Police Naik attached to Sion Police Station,
was on duty near Ramdev Hotel, Sion Station (west). He has
deposed that he had received secret information that two
persons were in possession of counterfeit notes. He conveyed
this information to A.P.I. Gaikar (Gaikwad), Sion Police
Station, pursuant to which A.P.I. Gaikar (Gaikwad) formed a
team and told them to keep a watch on the said persons. At
about 3.30 p.m. he saw two persons entering UP Dairy and
asking for change of Rs.1,000/-. The owner of the said UP
Dairy shop refused to give them change, hence they went to
another store and asked for change. The said person also
refused to give them the change. Thereafter PW1 and the
other police staff caught these two persons and on being
questioned they were unable to give satisfactory answers. API
Gaikwad took both the persons to Sion Police Station. They
took search of the said persons and found nine currency notes
of Rs.1,000/- denomination which appeared to be counterfeit
notes. He has further stated that they had taken their search
near the shop and found nine counterfeit notes and that
thereafter, they had called two Panchas and taken personal
search of these persons in their presence. He states that both
these persons had disclosed their names as Jabbar Shaikh
(accused No.1) and Piyarul Alihasan Mondal (accused No.2).
He therefore lodged a complaint against these accused at
Exhibit-24. In his cross-examination, he has stated that his
superior had not told him to call the pancha witness and that
he had called the said pancha witnesses. He later changed the
version and claimed that the pancha witnesses were present
when the accused were taken in the custody and that A.P.I.
Gaikar (Gaikwad) came to the spot along with Panchas.
11. The evidence of PW-1 indicates that both the accused
persons were arrested while they were trying to use the
counterfeit notes as genuine notes. This witness has given
different versions regarding search and seizure of counterfeit
notes. Initially he had stated that the personal search of the
accused was taken at Sion Police Station and the notes were
recovered and seized at Sion police station. He subsequently
claimed that the search of the accused persons was taken in
front of the shop in presence of Panchas. He has deposed that
he had called the panchas but later claimed that API Gaikwad
had come along with panchas. He has deposed that the
accused were taken into custody in presence of panchas. The
evidence of indicates that they had arrested both the accused
on the same day near Ramdev Hotel, Sion (west). He has
merely stated that 9 currency notes of Rs.1000/- were
recovered from them without specifying whether these notes
were recovered from accused No.1 or accused No.2 or from
both.
12. PW4-Mutukumar is one of the witnesses to the
panchanama at Exhibit-37. He has deposed that on
15/03/2016 at about 3.00 p.m. he was called near Krishna
Bhavan bus stop at Sion. He has deposed that the police had
caught one person, who had disclosed his name as Jabbar
Shaikh (A1). He has stated that the police had taken search of
the said person and recovered 9 currency notes in
denomination of Rs.1000/- from the right hand side pocket of
his pant. The said notes appeared to be counterfeit notes and
the same were attached under panchanama at Exhibit-37.
13. PW1 claims that both the accused were arrested on
15/03/2016 while they were trying to use the counterfeit
notes as genuine notes. Whereas PW4 claims that only
accused No.1 was arrested in his presence on 15/03/2016.
PW-3 Motilal Yadav, the owner of the UP Dairy shop at Sion
claims that on 15th March 2016 one person had came to his
shop and requested for change of Rs.1,000/-. He has identified
accused No.2 as the person who had come with a note of
Rs.1,000/-. PW-5 Santosh Gaikar (Gaikwad) has given yet
another version. He claims that accused No.1 was arrested on
15th March 2016, when he was attempting to use counterfeit
notes as a genuine note. He has stated that the accused No.1
tried to run away but was caught by them. His personal
search was taken and 9 currency notes of denomination of
Rs.1000/- each were recovered from him. His evidence
indicates that the accused No.1 had taken them to Sion
Railway Station on 17th March 2016 and pointed out to
accused No.2, who was also allegedly involved in similar
offence. He claims that custody of accused No.2 was taken on
17th March 2016. The prosecution has also not placed on
record the arrest Panchanama in respect of accused No.2. This
assumes significance as evidence of PW1 indicates that both
accused were arrested on 15/03/2016 near Ramdev Hotel,
Sion, while they were trying to use counterfeit notes as
genuine notes.
14. PW-5 has deposed that accused No.2 had disclosed that
he was in possession of ten counterfeit currency notes given to
him by one Moni and that he was ready to produce the said
notes. PW5 claims that he had recorded the disclosure
statement made by accused No.2 in presence of Pancha
witnesses. Thereafter, he along with accused No.2 and the
Panchas proceeded towards Santoshi Mata Mandir at Santosh
Bhuvan at Nallasopara. He claims that they went to Room
No.4 of Sai Darshan Chawl and that the accused No.2 entered
the said room and removed ten currency notes which were
kept in a box. The said currency notes which appeared to be
counterfeit notes were seized under Panchanama at Exhibit-
28.
15. PW-2 Madan Sharma who is a witness to the said
recovery Panchanama does not claim that the notes were
recovered from a room in Sai Darshan Chawl at Nalasopara.
He claims that the said notes were recovered from a room in
Gupta Chawl at Vasai Pada. The evidence of PW-2 thus does
not corroborate the evidence of PW-5 regarding recovery of
counterfeit notes as per the disclosure statement of accused
No.2. It is also pertinent to note that PW5 has admitted in his
cross-examination that the police had obtained his signatures
on blank papers. This statement raises a serious doubt about
the genuineness of the recovery Panchanama.
16. The inconsistency and discrepancy in the evidence of the
prosecution witnesses casts a serious doubt on the prosecution
case. The prosecution having failed to establish the guilt of
the accused persons beyond reasonable doubt, the conviction
cannot be based solely on the explanation given by the
accused No.1 in his statement under Section 313 of the
Criminal Procedure Code.
17. Under the circumstances and in view of discussion supra,
the impugned judgment and order cannot be sustained.
Hence the following order:-
ORDER
(i)The Appeal is allowed.
(ii)The impugned Judgment and Order dated
21st January 2019 in Sessions Case No.420 of
2016, Greater Mumbai is quashed and set
aside.
(iii)The accused is acquitted of offences under
Sections 489 (B) and 489 (C ) read with 34
of Indian Penal Code.
(iv)Their bail bonds shall be discharged.
(v) The fine amount, if paid, shall be refunded
to the accused.
(vi)The accused to furnish bonds under Section
437 A of Criminal Procedure Code, 1973
before the Sessions Court within a reasonable
time.
(SMT. ANUJA PRABHUDESSAI, J.)
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