IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 124 of 2010 Judgment reserved on: 27.4.2011 Date of decision: 16.5.2011 Fayaz Ahmad …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Varun Rana, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. __________________________________________________________ Kuldip Singh, Judge The convict has come in appeal against judgment dated 26/28.5.2010 passed by learned Sessions Judge, Kullu in Sessions Trial No. 13 of 2008 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for two and half years and to pay fine of ` 25,000/- for the offence punishable under Section 420 read with Section 511 IPC. In default of payment of fine, the convict shall further undergo simple imprisonment for three months. 2. The prosecution case, in brief, is that Fayaz Ahmed and Rayees Ahmed approached the complainant Nirlep Singh, ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 who was residing in hotel Paradise Shadow, Nehru Kund Manali on 20.5.2007 at about 5.15 p.m. They disclosed to the complainant that they were having one million Euro currency note and they wanted to exchange the same in Indian currency. Fayaz Ahmed had shown the currency note alongwith certificate of authenticity and copper zinc plate having engraved number of the said currency note. According to the prosecution, the value of the said Euro currency note was ` 5,60,000 crore. 3. On suspicion, the complainant informed PW-9 Kuldip Chand Rana, Dy.S.P. on telephone, who reached the spot along with police officials and recorded the statement Ex.PW-8/A of the complainant under Section 154 Cr.P.C. which led to registration of FIR Ex.PW-3/B and the accused were arrested. The Euro currency note was sent to Reserve Bank of India, Chandigarh, who opined that the said note was not genuine. On completion of investigation, challan was submitted against Fayaz Ahmed and Rayees Ahmed under Section 489 C read with Section 120-B and Section 420 read with Section 511 IPC. The accused were committed to the Sessions Court. They were charged for offences punishable under Section 489 C read with Section 120-B and Section 420 read with Section 511 IPC. They pleaded not guilty. The prosecution examined nine witnesses and produced some documents. The statements of accused were recorded under Section 313 Cr.P.C. They led no evidence in defence. On conclusion of trial, Rayees Ahmed was acquitted and appellant was convicted and sentenced, as noticed above. Hence, the appeal. 3 4. I have heard Mr. Varun Rana, Advocate, learned counsel for the appellant as well as learned Additional Advocate General assisted by Assistant Advocate General for the respondent and have also perused the record. It has been submitted on behalf of the appellant that the learned Sessions Judge has not properly appreciated the evidence on record and has erred in convicting and sentencing the appellant. On the basis of material on record, no case is made out against the appellant. The learned counsel for the appellant has prayed for acceptance of appeal and acquittal of the appellant. On behalf of the respondent, it has been submitted that the learned Sessions Judge has rightly appreciated the evidence on record and no fault can be found with the conviction and sentence of the appellant. A prayer has been made for dismissal of the appeal. 5. The appellant and Rayees Ahmed were tried on the complaint of PW-8. In order to appreciate the arguments advanced, it is necessary to consider the evidence. PW-1 Assistant Manager, R.B.I. has stated that vide police docket Ex.PW-1/A, one million Euro currency note Ex.P-1 with certificate of authenticity Ex.P-2 and a plate (validity of Euro Note) Ex.P-3 was received in his office. After comparison prima-facie, it was found that Ex.P-1 was not a genuine note. Report Ex.PW-1/B was issued by him under his signatures. There is no Euro currency note of one million denomination. At the relevant time, one million currency note was equivalent to ` 5,60,000 crore. In cross- examination, he has stated that Ex.P-1 is not the currency note. 4 6. PW-2 HHC Ganga Ram has proved rapat No. 28 dated 20.5.2007 Ex.P-2/A. PW-3 Lal Singh has proved FIR Ex.PW-3/B. PW-4 Sanjay Kumar, Inspector has stated that he prepared the report under Section 173 Cr.P.C. PW-5 C. Om Parkash has stated that on 20.5.2007 he carried the ruqa to Police Station, Manali for registration of case. 7. PW-6 Dina Nath has stated that the currency note was taken into possession vide recovery memo Ex.PW-6/A which bears his signatures alongwith signatures of Duni Chand. The currency note was not shown to him. He was declared hostile and was cross-examined by the Prosecutor, but nothing helpful to the prosecution was extracted in his cross-examination. PW-7 Duni Chand has stated that police disclosed that fake currency has been recovered from Fayaz Ahmad. He identified his signatures on Ex.PW-6/A. In cross-examination, he has stated that police did not tell that the currency has been recovered from Fayaz Ahmad. 8. PW-8 Sardar Nerlep Singh has stated that he used to stay in hotel Paradise Shadow Bahan, near Nehru Kund Manali. On 20.5.2007 Fayaz and Rayees came. They disclosed that they were having a currency note of one million denomination of Euro currency. They offered him to sell the same. He demanded the said note from them in order to satisfy himself about the genuineness of the same. They handed over one currency note of one million Euro currency, one copper plate, upon which number of the said note was engraved and a certificate of authenticity. They also offered him Indian Currency notes of the denomination of 5 ` 500/- and ` 1000/- in bulk quantity. This created suspicion in his mind, he contacted Dy.S.P. Manali on telephone, who reached the spot. Duni Chand and Dina Nath , Pradhan also came there. The police arrested Fayaz Ahmed and Rayees Ahmed. He made the statement Ex.PW-8/A. The currency note, authentication certificate and copper plate were taken into possession by the police vide memo Ex.PW-6/A in presence of Dina Nath and Duni Chand. The currency note Ex.P1, certificate of authenticity Ex.P-2 and copper plate Ex.P-3 are the same which were given to him by accused persons and same were taken into possession by the police. In cross-examination, it was suggested to him that accused neither came to him nor they had given him Ex.P-1, Ex.P-2 and Ex.P-3. He has stated that he had heard that the maximum denomination of Euro currency is of 500/- Euro. 9. PW-9 Kuldip Chand Rana, has stated that in May 2007 he was posted as Sub Divisional Police Officer at Manali. PW-8 Nirlep Singh informed him telephonically that two persons had come to him and offered to sell some fake currency to him. The police party had gone to Paradise Shadow Hotel. The witness found five persons present there including PW-6, PW-7, PW-8 and two accused. The statement Ex.PW-8/A of PW-8 was recorded and on that basis FIR was recorded. Accused Fayaz Ahmed had given currency note of one million Euro, certificate of authenticity and copper plate Ex.P-1, Ex.P-2 and Ex.P-3 respectively. 10. Initially there were two accused namely Fayaz Ahmed and Rayees Ahmed. The learned Sessions Judge has acquitted 6 Rayees Ahmed. There is nothing on record to suggest that the acquittal of Rayees Ahmed has been challenged. In other words, the story of the prosecution that Rayees Ahmed was also involved in the commission of offence, has been rejected by the learned Sessions Judge by acquitting Rayees Ahmed which has attained finality. 11. The appellant has been convicted only under Section 420 read with Section 511 IPC. PW-8 Sardar Nirlep Singh, complainant has very clearly stated that accused had handed over to him one currency note of one million Euro, one copper plate upon which number of the said note was engraved and a certificate of authenticity. Ex.PW-6/A is the recovery memo of Euro one million currency note, certificate of authenticity and copper zinc plate indicating that these were recovered from Fayaz Ahmed. PW-8 has not stated that once these items were handed over to him by accused then after some time he returned these items to the accused. Once one million Euro currency note, copper plate and certificate of authenticity were handed over by the accused to PW-8 then how these items were recovered from accused that has not been explained. 12. PW-6 Dina Nath has stated that currency note was not shown to him but his signatures were obtained. He has not stated that items mentioned in recovery memo Ex.PW-6/A were taken into possession from whom. PW-7 Duni Chand has stated that police disclosed that fake currency note has been recovered from Fayaz Ahmed. He identified his signatures on Ex.PW-6/A but this witness 7 has also not stated that in fact the items mentioned in Ex.PW-6/A were recovered from Fayaz Ahmed. This creates suspicion in the prosecution case that the items mentioned in recovery memo Ex.PW-6/A were in fact recovered from Fayaz Ahmed. 13. PW-1 has stated that there is no Euro currency note of one million denomination. At the relevant time, one million currency note was equivalent to ` 5,60,000 crore. The learned Sessions Judge has convicted the appellant under Section 420 read with Section 511 IPC. In other words, the appellant had made an attempt to cheat the complainant according to the findings recorded by the learned Sessions Judge. However, PW-8 complainant has stated that he had heard that the maximum denomination of Euro currency is of 500/- Euro then there is no question that Fayaz Ahmed attempted to cheat the complainant by offering him one million Euro currency. No other attempt of cheating by Fayaz Ahmed has been alleged nor a finding to this effect has been recorded by the learned Sessions Judge. 14. Taking the case of the prosecution to its maximum, even if it is assumed that Fayaz Ahmed had offered one million Euro currency to complainant that in no way could be said to be an attempt of cheating on the part of Fayaz Ahmed once the complainant was very much aware that in fact there is no Euro currency over and above 500 Euro. It is not the prosecution case that complainant accepted the version of Fayaz Ahmed that in fact there is currency of one million Euro. In view of the above discussion, it cannot be said that Fayaz Ahmed has committed an 8 offence punishable under Section 420 read with Section 511 IPC. The learned Sessions Judge has not properly appreciated the material on record and has erred in convicting and sentencing the appellant under Section 420 read with Section 511 IPC. The conviction and sentence of the appellant under Section 420 read with Section 511 IPC is not sustainable. 15. In view of above discussion, the appeal is allowed, judgment dated 26.5.2010 convicting the appellant under Section 420 read with Section 511 IPC read with judgment dated 28.5.2011 sentencing the appellant under Section 420 read with Section 511 IPC are set-aside. The appellant/accused is acquitted of the charge. The fine amount, if any, deposited by the appellant/accused be refunded to him. His bail bonds stand discharged. (Kuldip Singh), May 16, 2011 Judge. (GR)