:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.559 OF 2006 WITH CRIMINAL APPEAL NO.625 OF 2006 Joitaram Rekhaji Chaudhary, Age 25 years, Shantaram Talao, Kurar Village, Malad (E), Mumbai. ....Appellant. (Org.Accused No.3) Vs. The State of Maharashtra, (At the instance of MIDC Police Station. Mumbai.) ....Respondent. CRIMINAL APPEAL NO.625 OF 2006 Jabraram @ Vikram Lasaram Mali, Age 30 yrs., Hindu,Adult, R/at Mukam Bhalani, Tal. Bhinmal, Dist. Jalor, Rajasthan and at present in Judicial custody at Thane Central Prison, Thane. ....Appellant. (Org. accused No.2) Vs. The State of Maharashtra, (At the instance of MIDC Police Station vide C.R.No.261/2000). ....Respondent. Mr.Amit Lalla, Sr.Advocate i/by M/s. Lalla & Lalla for the Appellant. Mrs. A.A. Mane, A.P.P. for the State. CORAM: R.S.MOHITE, J. DATE : 09/9/2008 ORAL JUDGMENMT : 1. Both these appeals challenge a judgment and order passed by the Additional Sessions Judge, Greater Bombay on 5.6.2006 in Sessions Case No.116 :2: of 2001. Since both the appeal arise from the same set of facts, they are being disposed off by this common judgment and order. Appeal No.559 of 2006 has been filed by one Joitaram R.Chaudhary (hereinafter referred to as "Accused No.3") whereas Criminal Appeal No.625 of 2006 has been filed by Jabraram @ Vikram Lasaram Mali (hereinafter referred to as "Accused No.2"). At the trial one Abdul Rehman Mohiddin Abdul was arrayed as accused No.1 but he died during the pendency of the trial. In the circumstances, by the impugned judgment and order only accused Nos. 2 and 3 were convicted for committing offence under Section 489-B and 489-C of the Indian Penal Code. For the offence under Section 489-B each of them was sentenced to suffer R.I. for 5-years and to pay a fine of Rs.2000/-, in default to suffer S.I. for one month. For the offence U/s. 489-C, they both were sentenced to suffer R.I. for 5-years . 2. The brief facts of the prosecution case were as under. a) On 2.10.2000, P.W.No.1 Constable -Abdul Shaikh was on duty at MIDC Police Station Andheri. From an informant, he received information that a person was likely to arrive in front of Cafe Marol hotel situated at Morashi road with fake currency :3: notes. He passed on this information to his Senior Officer i.e. Sr. P.I. Abdul Raut. The senior Police Inspector called P.W.No.6 API Babasaheb Namdeo Salunke and other staff members. It was decided to lay a trap. Accordingly, P.W.No.6 API Salunke, P.W.No.1 Constable Abdul Rauf, P.W.No.2 Constable Ramkar, Constable Nalawade, Constable Gole and Constable Wagh went and stood in front of Cafe Marol. The informant went along with them. b) At 4.45p.m. one person came in front of Cafe Marol and he was immediately followed by two other persons. They were having some discussion amongst themselves. Accused No.1 Abdul Rehman took out some bundles from his pocket and gave them to the said two persons. The informant gave a signal and on receiving the signal, the police party went towards the accused Nos. 1 to 3 and caught them. c) After the accused were caught, two panchas who were passing by the road were called and the three accused were searched. From accused No.1-Abdul Rehman a packet containing 21 notes of Rs.500/- each were found. From accused No.2- Jabraram Mali 49 fake notes of Rs.100/- each, of purported value of Rs.4900/- were found in envelope. From accused No.3 Jotiaram Chaudhary 25 notes of Rs.100/-each of purported value of :4: Rs.2500/- were seized. d) The seizure was effected under panchanama. in the presence of two panchas of which P.W.No.3-Ajit Dait was one of the panch. P.W.No.2 Police Constable Sunil Ramkar had been dispatched to the MIDC Police Station to get a police seal. When he got the police seal, all the envelopes and the notes were sealed and the labels of the panchas were put thereon. The panchanama was completed on the spot and thereafter, the police party along with the accused persons came to the police station where P.W.No.1 Police Constable Abdul Rauf lodged an FIR which was recorded by P.W.No.6 API Babasaheb Salunke. On the basis of the FIR, police commenced their investigation. e) On 3.10.2000, the Investigation Officer-API Salunke recorded the statements of several witnesses and sent all the currency notes to the Reserve Bank of India under a covering letter Exh.6. The Reserve Bank of India reported that all the notes seized were fake. A charge-sheet was prepared and filed in the court. In due course, the matter was committed to the Court of Sessions. Charges were framed and the trial of the accused commenced. :5: 3) At the trial the prosecution examined as many as six witnesses. A reference to the nature of the evidence has already been made by me in the aforesaid paragraphs. The defence of the accused is of total denial. No defence evidence was led on behalf of the accused. Ultimately, by the impugned judgment and order, the trial court convicted and sentenced the accused as stated hereinabove and that is how these two appeals have been filed in this court. 4) I have heard both the sides and perused the record. According to me the appeals need to be partly allowed, in so far as sentence Under Section- 489-B is concerned and in so far as the sentence Under Section 489-C is concerned, for the reasons which follow. i) That, it is strongly urged on behalf of the defence that the entire seizure operation story regarding the seizure of articles from accused Nos. 2 and 3 should be totally disbelieved because no panchas were admittedly called prior to the time of alleged exchange of monies and they were therefore, not corroborating the witnesses to the factum of exchange of notes. I find that merely for this reason, the prosecution story cannot be thrown out. As regards actual finding and seizure of notes from :6: the accused Nos. 1 to 3, the same was effected in presence of the panchas. The Advocate for the accused argued that P.W.No.1 Abdul Rauf had admitted that the panchas were called prior to the raid but if this version is accepted then they would have seen the incident of exchange of notes. In fact, P.W.No.1 Constable Abdul Rauf in his examination in chief clearly stated that they were called after the accused were apprehended. Panchas themselves do not state about witnessing the exchange of money between the accused inter-se and it seems to be the prosecution case that the panchas were called at a stage after the exchange of money between the accused No.1 to accused Nos. 2 and 3, had already been completed. The police had also examined another independent witness P.W.No.4 Sanjeev Shah who claims to have come there after the accused were apprehended. But this witness also seems to have arrived much later after delivery of monies by accused No.1 or even the seizure of the monies. He only stated in his evidence that the police took out some bundles of monies from the envelope. Nevertheless, the evidence of P.W.No.3 Ajit Dait, Constable P.W.No.1 Abdul Rauf, P.W.6 API Babasaheb Salunke is consistent on the point of finding fake currency notes on the persons of accused Nos. 1 to 3 and the seizure of the notes. Admittedly, the notes :7: which were seized contained three or four notes each bearing the same number. In my view, therefore, the conviction under Section 489-C has been correctly recorded. 5. There is something however, to be said regarding the conviction under Section-489-B. For the conviction of the said section, the prosecution has to prove that the person who has purchased, sold or received the counterfeit money. In the present case, there is nothing to show that there was any sale or purchase transaction between accused No.1 and accused Nos. 2 and 3 on the other side. If there was any such transaction then genuine monies would be found. If accused Nos. 2 and 3 were sellers then genuine monies would normally be found from their possession of accused No.1. If accused Nos. 2 and 3 were purchasers then some genuine notes would have been found with accused No.1. However, this is a case where no genuine monies were found. Under Section 489-B mere receiving of monies, is also sufficient to constitute an offence if other ingredients are satisfied. However, unfortunately there is discrepancy in the evidence in this regard. I have already stated above that as regards the transaction of receiving monies by accused Nos. 2 and 3, there is no corroboration from the panch :8: witnesses P.W.No.3 Ajit Dait who was independent witness and P.W.No.4 Sanjeev Shah because they arrived at the spot after the incident of alleged act of receiving the monies by accused Nos. 2 and 3 was over. No doubt, P.W.No.1 Abdul Rauf stated in his evidence that he saw the accused No.1 giving a bundle to accused Nos. 2 and 3 but he does not specify the number of bundles which were passed on. No doubt, this fact is corroborated by the F.I.R. but unfortunately P.W.No.6-API Babasaheb Salunke who was the Senior Officer and a part of the raiding party did not state in his evidence that he saw the accused No.1 giving any bundle of notes to accused Nos. 2 and 3. In view of this discrepancy and this lacunae in the evidence, in my view, the accused would get benefit of doubt in so far as their conviction under Section 489-C is concerned. 6. In so far as sentence is concerned, it is seen that the conviction under Section-489-B is punishable with life imprisonment and the conviction under Section 489-C is punishable upto 7 years. The Trial Court has however, imposed a uniform sentence of 5-years. In my view, since the maximum sentence for an offence under Section 489-C is 7-years, the ends of justice would met if the sentence of 3.1/2 years is imposed on the accused-appellants under Section 489-C of the :9: I.P.C. 7. In the net result, I pass the following order. ORDER a. Both the appeals are partly allowed. b. The conviction and sentences of the appellants-accused (Original accused Nos. 2 and 3) i.e. Joitaram Rekhaji Chaudhary and Jabraram @ Vikram Lasaram Mali U/s.489 -B of the I.P.C. is quashed and set aside. c. The conviction of aforesaid accused Nos. 2 and 3 for the offence punishable under Section 489-C is confirmed but their sentences are modified and now they are sentence to suffer R.I for 3.1/2-years on the aforesaid count. d. Both the accused will be entitled to set off against the sentence already under gone. e. Both the appeals stand disposed off in the aforesaid terms. :10: f. The Muddemal articles be preserved for a period of three months from today and thereafter, be destroyed in accordance with the impugned judgment and order. (R.S. MOHITE, J.)