(1) CRI. APPEAL 152.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 152 OF 2010 1. Prabhakar S/o Narayan Patlola Age : 27 years, Occu.: Agri., R/o. Bolakpalli, Mandal Pitalam, Dist. Nizamabad (Andhra Pradesh) 2. Venkatesh S/o Gangaram Chanda Age : 34 years, Occu.: Photographer, R/o. Warni, Presently Chaitanya Colony, Old Baswada Road, Nizamabad (Andhra Pradesh) .. APPELLANTS VERSUS The State of Maharashtra (Copy to be served on G.P. of High Court Bench at Aurangabad) .. RESPONDENT ... Smt. Sadhana S. Jadhav, Advocate for the Appellants Mr. B.J. Sonawane, APP for the respondent ... CORAM : V.R. KINGAONKAR, J. DATE OF RESERVING THE JUDGMENT : 16TH NOVEMBER' 2010 DATE OF PRONOUNCING THE JUDGMENT : 25TH NOVEMBER' 2010 JUDGMENT:- 1. Challenge in this Appeal is to judgment rendered by learned Additional Sessions Judge, Biloli, in Sessions Case no. 25 of 2009, whereby both the appellants have been convicted for offences (2) CRI. APPEAL 152.2010 punishable under section 489-B r/w. section 34 of the Indian Penal Code and are sentenced to suffer R.I. for 7 years each and to pay fine of Rs.5000/- each in default to suffer R.I. for six months. They are also convicted and sentenced for the offences punishable under section 420 r/w. 34 of the Indian Penal Code and have been sentenced to suffer R.I. for period of two years each and to pay fine of Rs.1000/- each in default to suffer R.I. for two months. Besides, appellant no.1-Prabhakar is further convicted for the offence punishable under section 489-C of the Indian Penal Code and is sentenced to suffer R.I. for five years and to pay fine of Rs.5000/- in default to suffer R.I. of six months. So also, appellant no.2- Venkatesh is convicted for the offences punishable under section 489-A and 489-D of the Indian Penal Code and has been sentenced to suffer R.I. for period of seven years and to pay fine of Rs.5000/- in default to suffer R.I. for six months on each count. 2. It is alleged that both the appellants allegedly attempted to use counterfeit currency notes of Rs.500/- denomination which were falsely (3) CRI. APPEAL 152.2010 represented as genuine currency notes and were got printed by appellant no.2. 3. The prosecution case, stated briefly, is that on 7th June, 2009, appellant no.1-Prabhakar visited a beer bar styled as "Alankar Beer Bar, Degloor" around its business closing hours. He ordered couple of beer bottles. He gave currency note of Rs.500/- denomination to the Manager of the Beer Bar. The Manager suspected that the currency note was counterfeit and hence called upon appellant no.1-Prabhakar to tender another currency note. Another currency note of Rs.500/- denomination was produced and given by appellant no.1-Prabhakar. The Manager noticed that both the currency notes bore identical serial numbers. His belief that the currency notes were counterfeit, was thus confirmed. He, therefore, telephonically informed the Police that the customer i.e. appellant no.1-Prabhakar attempted to deceive him by giving the counterfeit currency note of Rs.500/- denomination. The Police arrived at the spot within a short while. They took away appellant no.1-Prabhakar alongwith the two (4) CRI. APPEAL 152.2010 counterfeit currency notes which were in his possession. They also took away motorbike used by appellant no.1-Prabhakar which was parked outside the beer bar. The Police recovered 30 counterfeit currency notes of Rs.1000/- denomination, 9 counterfeit currency notes of Rs.500/- denomination, 46 currency notes of Rs.100/- denomination and 1 counterfeit currency note of Rs.50/- denomination from the tool box of the dickey of the motorbike of appellant no.1-Prabhakar in pursuance of his confessional statement recorded under section 27 of the Evidence Act. The investigation further revealed that counterfeit currency notes were prepared by appellant no.2-Venkatesh. The arrest of appellant no.2-Venkatesh gave rise to recovery of computer, printer, paper-cutter machine, compact discs containing Computer programme used for preparation of the counterfeit notes and the stock of paper used while printing such fake currency notes. Appellant no.2-Venkatesh is a photographer by profession. The Police gathered evidence to the effect that both the appellants were dealing in misuse of such counterfeit currency notes by putting them in use for personal (5) CRI. APPEAL 152.2010 benefits like purchasing of cigarettes etc. The manner in which the counterfeit notes were prepared and printed by using the computer, printer and the C.D. programme was made explicit on demonstration of the process by appellant no.2-Venkatesh whilst he was in the Police custody. On basis of the material gathered during course of investigation, both the appellants were chargesheeted for the offences punishable under section 489-A, 489-B, 489-C, 489-D and section 420 r/w. 34 of the Indian Penal Code. A Charge was framed against them vide exhibit-9. Both of them pleaded 'not guilty' in response to the charge. Their defence was of total denial. They asserted that they have been framed in a false case. No particular defence was raised by either of them. 4. The prosecution examined in all 14 witnesses in support of its case. The prosecution also placed on record several documents, including the counterfeit currency notes and the machinery/material used while printing the counterfeit currency notes. The learned Sessions Judge held that appellant no.1- Prabhakar attempted to use the two counterfeit (6) CRI. APPEAL 152.2010 currency notes of Rs.500/- denomination at Alankar Beer Bar in the evening of 7th June, 2009 though he had the knowledge that both the currency notes were not genuine. The learned Sessions Judge came to the conclusion that appellant no.1-Prabhakar made false representation to the Manager of the Beer Bar that the currency notes were genuine and purchased two beer bottles under such false representation. The learned Sessions Judge however held that appellant no.1-Prabhakar is not proved to be the maker of the fake currency notes and is therefore not liable to be convicted for the offences under section 489-A and 489-D of the Indian Penal Code. 5. The learned Advocate for the appellants would submit that appellant no.1-Prabhakar could not have any intention to use counterfeit currency notes with knowledge that they were not genuine. It is argued that there was communication gap between the Manager of the Beer Bar and appellant no.1 -Prabhakar due to language barrier and, therefore, the FIR was lodged due to misunderstanding. It is further argued that the evidence on record does not establish any (7) CRI. APPEAL 152.2010 criminal act of appellant no.2-Venkatesh. It is argued that the confessional statement of appellant no.1-Prabhakar or appellant no.2-Venkatesh are of no avail because no recovery was effected in pursuance to such statements. It is pointed out that the computer, printer and other equipments were available in the open market and there was nothing to infer that they were the particular instruments used in printing of the counterfeit currency notes recovered from possession of appellant no.1-Prabhakar. It is submitted, therefore, by learned Advocate of the appellants that both of them deserve benefit of reasonable doubt. Hence it is urged to allow the Appeal. Per contra, the learned Assistant Public Prosecutor supports the judgment of conviction and sentence. 6. Considering the nature of the charge, the points which arise for determination are as stated below:- (I) Whether it is proved that appellant no.1- Prabhakar attempted to use counterfeit notes of Rs.500/- in the evening of 7.6.2009 at Alankar Beer Bar, (8) CRI. APPEAL 152.2010 Degloor with knowledge that the currency notes were fake? (II) Whether it is proved that appellant no.1-Prabhakar was in possession of 4 counterfeit currency notes of Rs.500/- denomination alongwith large number of counterfeit currency notes of Rs.1000/- and other denominations? (III) Whether it is proved that both the appellants shared common intention while distributing/using the counterfeit currency notes? (IV) Whether it is proved that appellant no.2-Vyankatesh prepared forged/counterfeit currency notes by using the computer, printer and the CDs of the computer programme? (V) Whether it is proved that the appellants, in pursuance to their common intention, mis-represented to the Manager of the Beer Bar or any other person that the currency notes were genuine and obtained unlawful gains by their such acts? (VI) Whether the impugned judgment of conviction and sentence is legal and proper? (9) CRI. APPEAL 152.2010 7. Before I proceed to scrutinize the prosecution evidence, it may be noticed that Degloor is situated on border of State of Maharashtra and State of Andhra Pradesh. It has come on record that there is frequent egress and ingress of neighbouring inhabitants of Andhra Pradesh to Degloor and vice-a- versa. The native village of appellant no.1- Prabhakar is in the proximity of Degloor town. Both the appellants hail from two different places situated in adjacent Nizamabad district of Andhra Pradesh. There is no dispute about the fact that appellant no.1-Prabhakar visited Alankar Beer Bar in the relevant evening at about business closing hours. There is also no dispute about the fact that he had tendered the currency note of Rs.500/- denomination while purchasing two beer bottles and the Manager asked him to give substitute to that currency note of which genuineness was suspected. The substituted currency note also was found to bear the same serial number and as such the Police party was called at the Beer bar. (10) CRI. APPEAL 152.2010 8. So far as appellant no.1-Prabhakar is concerned, there is direct evidence of P.W.1-Shankar, who is Manager of the Beer bar and that of P.W.5- Shivaji, who was working as the hotel's servant. Their versions, un-mistakably, go to show that appellant no.1-Prabhkar visited the Beer Bar at about 10.30 pm. on 7.6.2009. Their versions categorically show that he ordered for two beer bottles. Their versions also purport to show that P.W. Shankar (Manager) informed appellant no.1-Prabhakar that the currency notes could not be used. They also confirmed the fact that appellant no.1-Prabhakar had been to the Beer Bar on motorcycle which was parked in its front. There is no dispute about the genuineness of the spot panchanama (Exhibit 26) drawn at the place of the Beer bar. 9. Cross-examination of P.W. Shankar purports to show that he understands but is unable to fluently speak Telugu language. He admits that normally he used to speak in Hindi language. It is pointed out by the learned Advocate, from cross-examination of P.W. Shankar that appellant no.1-Prabhakar was (11) CRI. APPEAL 152.2010 telling the Manager that it was a genuine currency note. He also admits that appellant no.1-Prabhkar was insisting him to retain Rs.160/- for the couple of beer bottles instead of Rs.100/-. This conduct shows that he wanted to use the fake currency note. He admits that since appellant no.1-Prabhakar was not paying the bill of the purchased beer bottles, employees of the beer bar brought the motorbike of appellant no.1-Prabhakar from the parking lot and parked it in front of the Alankar Beer bar. 10. Considering the direct evidence, which is not materially affected inspite of searching cross- examination, it will have to be stated that appellant no.1-Prabhakar used the two fake currency notes under the pretext of purchasing the two bottles of beer. It is explicit that he had gone to the said Beer bar at the business closing hours with a view to hurriedly take away the beer bottles on making payment vide the counterfeit currency note of Rs.500/- denomination. He was probably under the impression that at such business closing time, the Manager and the other staff of the beer bar would not (12) CRI. APPEAL 152.2010 be able to pay much attention to the currency note of Rs.500/- denomination. Be that may as it is, it is duly proved that appellant no.1-Prabhakar used the fake currency notes in that evening. 11. Another question is whether appellant no.1- Prabhkar can be attributed knowledge about the currency notes being counterfeit? It has come on record that not only that he was having these two counterfeit currency notes of Rs.500/- denomination each but subsequently a large number of counterfeit currency note of Rs.1000/- denomination alongwith other counterfeit currency notes were recovered at his instance from the tool box of his motorbike. This is a glaring fact. It is not the contention of appellant no.1-Prabhakar that the motorbike did not belong to him. The Manager and staff members of Beer bar had actually seen appellant no.1-Prabhkar while coming to the Beer Bar on the motorcycle. 12. The prosecution case is further corroborated by the version of P.W.2-Chandrashekhar. There is no serious infirmity in the testimony of P.W. Chandrashekhar. He is an independent witness and has (13) CRI. APPEAL 152.2010 no business to speak lie. The testimony of P.W. Shivaji reveals that in his presence the spot panchanama (exhibit 26) was drawn and so also the seizure of the two currency notes was effected vide panchanama (exhibit 25). The report of Expert (exhibit 21) clearly shows that the currency notes sent for examination and opinion were found to be the counterfeit notes. 13. There is testimony of P.W. 6 Laxmansing in support of a large stock of counterfeit currency notes recovered from the dickey of motorbike of appellant no.1-Prabhakar in pursuance to his statement, and after preparing memorandum panchanama (exhibit 28). Thus, there is sufficient evidence to infer that appellant no.1-Prabhakar had the knowledge that the currency notes used by him were of counterfeit nature. It is duly proved that he had used the two counterfeit currency notes of Rs.500/- denomination in the Beer Bar with a view to purchase two beer bottles. Considering these circumstances, the learned Sessions Judge was right in convicting appellant no.1-Prabhakar for the offences of using (14) CRI. APPEAL 152.2010 the counterfeit currency notes, and cheating the Manager of Alankar Beer Bar by making false representation that they were genuine and obtaining the unlawful gain of two beer bottles. 14. P.W. 4 Shaikh Rafik narrated as to how both the appellants together visited his pan shop situated at Khanapur intersection in the outskirts of Degloor. His version reveals that they had purchased two packets of cigarettes from him. They gave him a fake currency note which was lateron burnt away. He identified both the appellants as the same customers to whom he had sold the cigarette packets. He has no business to falsely implicate the appellants as his customers. He is an independent witness. He has no animosity against the appellants. It is therefore manifest that both the appellants had shared the common intention while using the fake currency note in order to purchase two packets of cigarettes from the pan shop of the P.W. Shaikh Rafik in the proximity of period of recovery of counterfeit notes and the articles like computer, compact disc etc. (15) CRI. APPEAL 152.2010 15. On close scrutiny of version of P.W. 7 Sachin, it is amply proved that while appellant no.2- Venkatesh was in Police custody, the Police took him alongwith appellant no.2-Venkatesh and another panch to Banswada (A.P.). The residential house of appellant no.2-Venkatesh was searched in his presence. He corroborates search and seizure panchanama (exhibit 32). His version lends corroboration to the prosecution story that a computer alongwith a C.P.U., monitor, deskjet printer, scanner, copier and a Harrison brand paper cutter were recovered from house of appellant no.2- Venkatesh. The recovery of the said articles is relevant. It is duly proved that the Police recovered two Compact Disc (article no.12) during the course of search and seizure of the residential house of the appellant no.2-Venkatesh. It is admitted by P.W. Sachin that on purchasing of inkjet printer or deskjet printer, the Company provides Compact Disc (C.D.) of the software programme for use of the printer. (16) CRI. APPEAL 152.2010 16. The testimony of P.W. 11-Yusuf, to whom one fake currency note was given by the appellants, go to show that appellant no.1-Prabhakar had purchased the cigarette packet from his shop alongwith a toothpaste tube and one Fair and Lovely brand cream tube by giving counterfeit currency note of Rs.500/-. That counterfeit currency note was recovered from him at instance of appellant no.1-Prabhakar under a panchanama. He identified the counterfeit currency note (article 40). It is therefore manifestly clear that appellant no.1-Prabhakar knowingly indulged in the use of counterfeit currency notes. 17. The question of significance is whether appellant no.2-Venkatesh was found in possession of the material/articles/instruments which could be used to prepare counterfeit currency notes? The version of P.W. 14 P.S.I. Bhimsingh Chavan and the version of Panch witnesses lend corroboration to the fact that appellant no.2-Venkatesh gave information to the effect that he had concealed the computer, printer, scanner and other articles at his residential house situated at Banswada (A.P.). Therefore, P.S.I. (17) CRI. APPEAL 152.2010 Bhimsingh Chavan took appellant no.2-Venkatesh and the panchas to his residential house. The recovery of the said articles was effected vide seizure panchanama (exhibit 32). The testimony of P.W. P.S.I. Bhimsingh Chavan reveals that on information furnished by appellant no.2-Venkatesh, particular C.D.s and the software utilized for preparation of the fake currency notes came to be recovered in pursuance to his statement dated 13.6.2009 prepared vide memorandum (exhibit 33). Two C.D.s were thus recovered at his instance vide panchanama exhibit 34. The version of P.W. P.S.I. Bhimsingh Chavan goes to show that appellant no.2-Venkatesh gave demonstration pertaining to use of the C.D.s for printing of the counterfeit currency notes. The panchanama (exhibit 36) was drawn after the demonstration was successfully shown by appellant no.2-Venkatesh in the premises of the Police Station. 18. Can the demonstration of printing of the fake currency notes be regarded as discovery of fact under section 27 of the Evidence Act, is the question raised by the learned Advocate for the appellants. (18) CRI. APPEAL 152.2010 It is important to notice that both the C.D.s were recovered in pursuance to the statement of appellant no.2-Venkatesh as per section 27 of the Evidence Act. Though, the confessional part of the statement of the appellants and the confessional part of the recorded statements of the witnesses, will have be scrapped and cannot be considered, yet the fact remains that the place where the two C.D.s were concealed by appellant no.2-Venkatesh was discovered at his instance. This is a discovery of fact. The further discovery at his instance is regarding the methodology of using the computer, printer and the C.D. programme for the purpose of preparing the counterfeit currency notes. He gave demonstration of the methodology in presence of the Panchas to P.W. P.S.I. Bhimsing Chavan. The demonstration given by appellant no.2-Venkatesh cannot be regarded as his confessional statement to the Police. It has to be treated as "Discovery of Fact" in pursuance to his earlier confessional statement based upon which the two C.D.s were recovered. Unless the computer, printer and other articles recovered from his house could be shown to be instruments that could be used (19) CRI. APPEAL 152.2010 for preparation of fake currency notes, the recovery perhaps by itself would not have been of any evidentiary value. The said recovery of the instruments, the further recovery of the two C.D.s in pursuance to his confessional statement under section 27 of the Evidence Act and the culmination of such discovery of fact due to the demonstration given by him would certainly be admissible in the evidence. Therefore, the demonstration given by him will not amount to his confession of the guilt and will be discovery of the fact at his instance in the context of the functional use of the instruments which could be utilised for preparing the fake currency notes. 19. On careful consideration of the entire record, I have no hesitation in holding that the relevant charges have been duly proved against both the appellants. It is proved that both the appellants, in furtherance of their common intention were found using as genuine the counterfeit currency notes. Is is also proved that appellant no.1- Prabhakar had knowledge that the currency notes in his possession were of counterfeit nature. It is (20) CRI. APPEAL 152.2010 duly proved that both the appellants, in furtherance of their common intention falsely represented that the currency notes were genuine and obtained unlawful gains for themselves by purchasing cigarette packets and other articles from the traders. It is duly proved that the appellant no.2-Venkatesh prepared counterfeit currency notes and was found in possession of the instruments which could be used for such purpose. Considering gravity of the offence proved against the appellants, the sentence awarded to them appears to be quite legal and proper. Thus, there is no merit in the Appeal. 20. In the result, the Appeal is dismissed. The impugned judgment of conviction and sentence rendered in Sessions Case no. 25 of 2009 stands confirmed. Sd/- [V.R. KINGAONKAR, J.] arp