CR.A/1317/2003 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1317 of 2003 With CRIMINAL APPEAL No. 1347 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MANSING @ GALABHAI FULABHAI VAGHARI (TALPADA) - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : Criminal Appeal No. 1317 of 2003 MR KIRTIDEV R DAVE for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent Criminal Appeal No. 1347 of 2003 MR SHAKEEL KURESHI for appellant MR KT DAVE ADDL PP FOR respondent ========================================================= CR.A/1317/2003 2/55 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/02/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. These two Criminal Appeals under Section 374 of the Code of Criminal Procedure ('the Code' for short) are directed against the judgment and order dated 15.9.2003 rendered in Sessions Case No.24 of 2003 by the learned Additional Sessions Judge, Fast track Court, District Kheda at Nadiad by which the appellants of both these appeals, who are original accused Nos.7 and 2 (A-7 and A-2 for short) respectively, are convicted for commission of the offences punishable under Sections 489A, 489B, 489C, 489D read with Section 114 and also under Section 120B of the Indian Penal Code ('IPC' for short) and both of them are sentenced to suffer RI for a period of ten years and fine of Rs.2,000/- and in default of payment CR.A/1317/2003 3/55 JUDGMENT of fine, SI for four months for commission of the offence under Section 489A IPC, RI for ten years and fine of Rs.2,000/- and in default of payment of fine, SI for four months for commission of offence under Section 489B IPC, RI for seven years and fine of Rs.2,000/- and in default of payment of fine, SI for four months for the offence under Section 489C IPC, RI for ten years and fine of Rs.2,000/- and in default of payment of fine, SI for four months for commission of offence under Section 489D IPC and RI for six months and fine of Rs.800/- and in default of payment of fine, SI for one month for the offence under Section 120B IPC. It is also ordered that all the sentences imposed on the accused persons shall run concurrently. 2. The prosecution case, as disclosed from the FIR and unfolded during trial, is as under: 2.1. P.W.7, Bharatkumar Dahyaram Vaishnav, Police Inspector, Nadiad Town Police Station, CR.A/1317/2003 4/55 JUDGMENT District Kheda, had received an information from reliable persons to the effect that prior to 1 ½ months counterfeited currency notes were in circulation. He conveyed the said information to P.W.22, A.L. Vaghela, PSI and P.W.20, NM Solanki, PSI and other police personnels of 'D' Staff and they were instructed to make sincere efforts to find out the root thereof. Thereafter prior to three days he received an information about a suspicious person and, therefore, police personnels of D staff were asked to keep continuous vigil and watch on the movement of the said person. He also remained in constant touch with those police personnels. On 4.7.2002 he received an information from a reliable informant that one person was going to handover counterfeited currency notes to someone. He, therefore, kept watch with panchas on the road near Mafatlal Apparels railway Crossing at Nadiad Mill Road wherefrom the said person was to pass, as per the information. It is further case of the prosecution that the said person came on a CR.A/1317/2003 5/55 JUDGMENT scooter at 3 P.M. from Kamla. He along with other police personnel intercepted him and on being asked his name, he stated that his name is Firozbhai Allarakha, by cast Vora, residing at Kamla, Taluka Nadiad, District Kheda (A-2). On making search of his scooter, a bundle of currency notes of Rs.50/- denomination and other Rs.250/- (two notes of Rs.100/- and one note of Rs.50/-) were found from the pocket of his pant. The bundle of currency notes of Rs.50 denomination was new and appeared to be counterfeited. On looking into it, there were more notes of one and the same number. While comparing with the original note of Rs.50 denomination and on verifying the watermark, the said notes appeared to be counterfeited. The said notes were counted and they were hundred in number. The other notes of Rs.250 were original. The counterfeited notes were as under by segregating as per the numbers: (i) 22 notes of No. 9 R S 312680 (ii)12 notes of No. 5 D C 214865 CR.A/1317/2003 6/55 JUDGMENT (iii)12 notes of No. 5 T U 117837 (iv) 33 notes of No. 4 U B 034459 (v) 18 notes of No. 2 S B 909057 (vi)04 notes of No. 5 R Q 211629. The registration number of the scooter is GJ 1 AC 989 and the value of the said scooter was about Rs.5,000/- Therefore, he arrested A-2 with the counterfeited notes in presence of panchas. 2.2. Upon further interrogation, A-2 stated that the person who supplied him those counterfeited notes will be coming with other counterfeited notes near Bokadvad, Nadiad at about 4 p.m. as per the previous deal with him. Therefore, A-2, along with the counterfeited notes of Rs.50 denomination and the original Rs.250/- and the Bajaj scooter, were seized so that the police personnels can reach to the root of these counterfeited notes. Thereafter all of them, along with the panchas, kept watch on the road taking their position separately near CR.A/1317/2003 7/55 JUDGMENT Bokadvad, Nadiad. As per the time given by A-2, one person came walking at about 4 O' clock in the evening and as A-2 gave signal about his arrival, the police personnels became alert. The said person approached A-2 and as soon as he was handing over three bundles covered in a blank paper after taking out from the waist portion of his pant, he was surrounded and caught by the police personnels. Thereafter the said person was arrested along with the counterfeited notes in presence of panchas. On inquiring his name, he told that he is Adimulam Balram, by cast Kavandar (Rajput) (Original accused No.1 who has been convicted by the trial court but has not chosen to file appeal) residing at Block No.99/769 Khokhra Housing Board, Hatkeshwar, Amraivadi, Ahmedabad. Thereafter three bundles in his hand covered in a blank paper and tied with a red coloured string were seized. On opening the paper, new notes of Rs.50 denomination were found. There were many notes of one and the same number which were counterfeited. On segregating CR.A/1317/2003 8/55 JUDGMENT the same as per the numbers, they were as under: (i) 68 notes of No. 7 E G 865641 (ii)99 notes of No. 3 B D 571912 (iii) 97 notes of No. 7 S P 227660 (iv)124 notes of No. 7 E W 023282 (v) 75 notes of No. 7 G H 593291 (vi)120 notes of No. 4 M R 681072 (vii) 17 notes of No. 7 R F 020004. On being search of the person of A-1, Rs.140 (two notes of RS.50 and four notes of Rs.10) in original were found. The aforesaid counterfeited notes, six hundred in total, were seized for investigation. Upon asking him as to from where did he bring the said notes, he stated that he was preparing the same and supplying at half rate. Thus counterfeited hundred notes of Rs.50 denomination found from A-2 and original Rs.250/- and Bajaj Scooter and the original Rs.140 and counterfeited six hundred notes of RS.50 denomination found from A-1 were seized and detailed panchnama in this regard was prepared in CR.A/1317/2003 9/55 JUDGMENT presence of the panchas. 2.3. As per further case of prosecution, A-1 and A-2 both hatched criminal conspiracy and made counterfeited currency notes and used them as genuine notes and put them in circulation. Therefore, both of them have committed offence under Sections 489A, 489B, 489C, 489D read with Section 114 as well as Section 120 B IPC. 2.4. A complaint in respect of the aforesaid incident was lodged by P.W.7, B.D. Vaishnav, PI at Nadiad Town Police Station where it was registered as Ist CR No. 274 of 2002 for commission of the offences under sections 489A, 489B, 489C, 489D read with section 114 and 120B IPC. Thereafter further investigation was handed over to P.W.20, NM Solanki, who recorded the statements of police personnels and police officers who were present at the time of actual arrest of A-1 and A-2 and seizure of counterfeited currency notes from them. CR.A/1317/2003 10/55 JUDGMENT Thereafter both the accused were further interrogated. On the basis of information given by A-1, the investigating officer visited the house of A-1 at Amraivadi, Ahmedabad, in presence of panchas wherefrom he recovered xerox machine, ½ rim blank paper, fevicoal, blade for cutting the papers, red threat and two pages on which currency notes of Rs.50 denomination were xeroxed. He has recovered all the instruments in presence of panchas form the house of A-1 and a report thereof was made to Amraivadi Police Station. Report of the seizure of the muddamal was reported to Amraiwadi police station. During further investigation, A-1 produced the bill for the purchase of xerox machine. P.W.20, NM Solanki also recovered the xerox copy of the ration card. During his further interrogation, names of A-3 and A-4 also divulged. Therefore A-3 and A-4 were arrested. Thereafter further investigation was handed over to P.W.22, AL Vaghela. On taking over the investigation, PW 22, AL Vaghela obtained remand of A-1 to A-4 which was granted. P.W.22, CR.A/1317/2003 11/55 JUDGMENT AL Vaghela came to Ahmedabad together with A-1 and A-6, son of A-1 was also arrested as he was also found to be involved in the said offence, against whom separate FIR No. 227 of 2001 for commission of the offences under sections 489A, 489B, 489C, 489D read with Section 114 and Section 120B IPC at Odhav police station was filed and a copy of the said FIR was kept along with the FIR filed against A-1 and A-2. Thereafter during further interrogation of A-1 he stated as to from where he purchased the paper. During further interrogation, name of A-7 Mansingh Galabhai was divulged and he was traced out and in presence of panchas he was searched and during the search from the pocket of his pant, notes of Rs.50 denomination, in all 99 in number, were recovered. Therefore in presence of panchas, panchnama was prepared to the said effect. The notes were seized and sealed and A-7 was arrested. Thereafter during further interrogation and investigation all the remaining accused were also found to be involved CR.A/1317/2003 12/55 JUDGMENT in the said scam and all of them were arrested and the currency notes seized from the accused persons were sent to FSL for analysis and thereafter further investigation was handed over to P.W 25 DT Rana. Since the investigation was completed and on receiving report from the FSL certifying that the notes recovered from the accused persons were counterfeited notes and as incriminating evidence was found against all the accused persons, charge sheet was filed before the learned Chief Judicial Magistrate, Nadiad against all the ten accused persons. 2.5. As all the offences with which the accused persons were charged with are exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Nadiad committed case to the Sessions Court, Kheda at Nadiad. 2.6. On committal, the learned Additional Sessions Judge to whom the case was made over for trial, framed charge against all the accused CR.A/1317/2003 13/55 JUDGMENT persons for commission of the offences under sections 489A, 489B. 489C, 489D read with Section 114 and 120B IPC and read over and explained to them. As the accused persons pleaded not guilty to the same and claimed to be tried, they were put to trial by the learned Additional Sessions Judge, Nadiad in Sessions Case No.24 of 2003. 2.7. In order to bring home the charge levelled against the accused persons, the prosecution has examined as many as 25 witnesses and relied upon their testimonies, details of which have been narrated in para 3 of the impugned judgment and order. They are as under: P.W. No. Name Ex. No. Page No. 1 Kiritbhai Kuberbhai Parmar, Panch witness 41 255 2 Lalitbhai Somabhai Barot, Panch witness 43 259 3 Revandas Dhirumal Sejvani, Panch witness 44 261 4 Jethanand Bhojraj Gurnani, Panch witness 45 263 5 Suryakantbhai Chhaganbhai Tadvi, Panch witness 46 265 CR.A/1317/2003 14/55 JUDGMENT P.W. No. Name Ex. No. Page No. 6 Dineshbhai Trikambhai Bhatia, Panch witness 47 267 7 Bharatkumar Dayaram Vaishnav, PI, complainant 48 269 8 Rasilaben Ratilal Shrimali 57 289 9 Harshkumar Amrutlal Patel 58 291 10 Sureshbhai Ramjibhai Kachchhi Patel 59 293 11 Bharatbhai Shamjibhai Patel 60 295 12 Rameshbhai Virjibhai alias Hiralal 61 297 13 Rameshbhai Vishrambhai 63 300 14 Hansrajbhai Bhimjibhai 64 302 15 Natvarsinh Shankarbhai Vaghela 65 303 16 Melabhai Khumanbhai Parmar 66 305 17 Gotabhai Bhagubhai Solanki 67 307 18 Bharat Kapilrai Mistri, FSL Officer 69 310 19 Laxmiben Mansingbhai alias Galabhai 72 328 20 Navalsinh Mathursinh Solanki, PSI, Investigating Officer 73 330 21 Harshadbhai alias Tino Khumansing 82 365 22 Abhaysinh Lalubha Vaghela, PSI, Investigating Officer 84 368 23 Kanjibhai Vithalbhai Dasaniya, Zonal Officer, Maninagar 95 396 24 Mayurbhai Kanaiyalal Shah 100 405 25 Dashrathsinh Takhatsinh Rana, PSI, Investigating Officer 102 410 CR.A/1317/2003 15/55 JUDGMENT 2.8. To prove the charge against the accused, the prosecution has also produced in all 16 documents and relied upon the contents of the same. They are mentioned in paragraph 4 of the impugned judgment and order. The relevance of those documents would be discussed hereinafter in this judgment as and when required. 2.9. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused persons the circumstances appearing against them in the evidence of the prosecution and recorded their further statement under section 313 of the Code. In their further statement, the accused persons denied the case of the prosecution in toto and reiterated that they are innocent and have been falsely implicated. However, they did not lead any evidence nor did they examine any witness in support of their defence. 2.10. On appreciation, evaluation, CR.A/1317/2003 16/55 JUDGMENT analysis and scrutiny of the evidence on record, the trial court held that the prosecution has failed to establish the complicity of the accused Nos.3 to 6 and 8 to 10 for commission of the offences under sections 489A, 489B, 489C, 489D read with Section 114 and 120B IPC and, therefore, they are acquitted of the offences with which they were charged whereas the prosecution has established the complicity of A- 1, A-2 and A-7 from whom counterfeited currency notes were recovered and from the house of A-1 xerox machine and other articles and materials used for counterfeiting currency notes were recovered and, therefore, A-1, A-2 and A-7 conspired together in this scam of counterfeiting currency notes. It is also held by the trial court that direct evidence with regard to conspiracy is difficult to obtain. However, on the basis of the circumstantial evidence, it is proved that A -2 and A-7 conspired with A-1 in the scam of counterfeiting currency notes and, therefore, A-1, A-2 and A-7 are held guilty for CR.A/1317/2003 17/55 JUDGMENT commission of the offences under Sections 489A, 489B, 489C, 489D read with Section 114 and Section 120B IPC and accordingly they are convicted for the same and sentenced to suffer imprisonment about which reference is made in earlier paragraph of this judgment, which has given rise to instant two appeals at the instance of A-7 and A-2. 3. Criminal Appeal No.1317 of 2003 is filed by A-7 whereas Criminal Appeal No. 1347 of 2003 is filed by A-2. So far as A-1 is concerned, though he has been convicted along with A-2 and A-7, he has not chosen to file appeal. 4. Mr. Kirtidev Dave, learned advocate for A-7 and Mr. Shakeel Kureshi, learned Advocate for A-2, have submitted that there is no evidence that A-7 and A-2 have hatched conspiracy with original A-1, who is not before this court, from whom all the articles, xerox machine and materials used for preparing the counterfeited CR.A/1317/2003 18/55 JUDGMENT currency notes were recovered. There is no evidence to the effect that there is a meeting of mind prior to purchasing the machines, articles and materials for forging or counterfeiting currency notes. So far as A-2 and A-7 are concerned, according to them, it is true that counterfeited currency notes of the denomination of Rs.50 were recovered form them and the serial numbers were also same to each other. However, they are not the makers of the counterfeited notes or possessor of the machine and instruments used for making the counterfeited currency notes. Therefore, so far as conviction for commission of offences under Sections 489A, 489B and 489D IPC is concerned, in absence of any evidence against them, deserves to be quashed and set aside. So far as the conviction under Section 489C is concerned, the independent witnesses like panchas have not supported the seizure of the counterfeited currency notes from them and, therefore, it is totally unsafe to convict them even for commission of the offence under section CR.A/1317/2003 19/55 JUDGMENT 498C IPC merely relying upon the evidence of police personnels. Alternatively, they submitted that even if this court comes to the conclusion that they have committed offence under Section 489C IPC, which is punishable with imprisonment of either description for a term which may extend to seven years, or with fine, or with both, at the most the maximum imprisonment that can be imposed on them would be seven years. They have also submitted that both the accused have undergone around 4 ½ years in jail and under these circumstances by showing leniency, the period of imprisonment undergone by them may be treated as substantive sentence for commission of the offence under section 489C IPC and accordingly the judgment and order of conviction and sentence passed against them for commission of the offences under Sections 489A, 4389B, 489D read with section 114 and Section 120B IPC may be quashed and set aside and while maintaining the conviction under Section 489C the period of imprisonment undergone by them so far may be CR.A/1317/2003 20/55 JUDGMENT treated as substantive sentence for commission of this offence and the appeals may be partly allowed. They, therefore, urged to partly allow the appeals. 5. In counter submission, Mr. KT Dave, learned APP for respondent-State of Gujarat, has contended that there is voluminous evidence against both the accused for commission of offences under Sections 489A, 489B, 489C, 489D read with Section 114 and Section 120B IPC as A-2 was caught read handed with counterfeited currency notes and on the basis of his statement, A-1 was also caught with counterfeited currency notes and on the basis of the statement of A-1, the investigation officer has visited his house from where all necessary xerox machine, instruments and materials for forging counterfeited currency notes were seized. So far as A-7 is concerned, from him also counterfeited currency notes were recovered, the numbers of which are similar to the numbers of the CR.A/1317/2003 21/55 JUDGMENT counterfeited notes which were recovered from A- 2. Therefore, all the three accused A-1, A-2 and A-7 have hatched criminal conspiracy for preparing and forging counterfeited currency notes. According to him, it is true that panchas have turned hostile but the evidence of the police personnels who have no axe to grind against the accused persons, is so glaring and of sterling quality that the deficiency in the prosecution, if the turning of panchas hostile can be called so, has paled into insignificance. Therefore, there is no reason to discard the evidence of the police personnels. He has also asserted that the offence of counterfeiting currency notes is a crime against the Nation and it will affect the economy of the country adversely and, therefore, no leniency can be shown against any of the accused persons. He has therefore submitted that there is no merit in both the appeals and urged to dismiss both the appeals. CR.A/1317/2003 22/55 JUDGMENT 6. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a compete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read an re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with criminal appeals, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 7. At the outset, be it noted that the trial court has acquitted all the accused except A-1, A-2 and A-7 of the offences punishable under CR.A/1317/2003 23/55 JUDGMENT Sections 489A, 489B, 489C, 489D read with Section 114 and 120B IPC. A-1 has not preferred appeal against the order of conviction and sentence and, therefore, to examine whether A-2 and A-7 have been rightly held guilty by the trial court for commission of the said offences, according to this Court, the relevant evidence which is required to be reappreciated is that of P.W.7, BD Vaishnav, PI- complainant, Ex.48, P.W.18, Bharat Kapilrai Mistri, Scientific Officer of FSL, Nadiad, Ex.69, P.W.20, Navalsinh Mathursinh Solanki, PSI, Investigating Officer, Ex.73, P.W.22, Abhaysinh Lalubha Vaghela, PSI, Investigating Officer, Ex.84 and P.W.25, Dashrathsinh Takhatsinh Rana, PSI, Investigating Officer, Ex.102 and P.W.3, Revandas Dhirumal Sejvani, panch witness, Ex.44, P.W.4, Jethanand Bhojraj Gurnani, panch witness, Ex.45, P.W.5, Suryakantbhai Chhaganbhai Tadvi, Pach witness, Ex.46 and P.W.6, Dineshbhai Trikambhai Bhatia, Panch witness, Ex.47. CR.A/1317/2003 24/55 JUDGMENT 8. In order to prove that the currency notes which were recovered from A-2 and A-7 were counterfeited currency notes, the prosecution has examined P.W.18, Bharat Kapilrai Mistri, a Scientific Officer of FSL, Nadiad, Ex.69, page 310 of the paper book. He has, inter alia, testified that he is serving as a Scientific Officer in FSL, Nadiad for the last 20 years. He had received 3 parcels, in sealed condition, to examine the same in connection with the crime registered vide CR No. 276 of 2002 at Nadiad Town Police Station. He examined the currency notes which were packed in the three parcels. According to him, the currency notes of Rs.50 denomination sent to FSL, Nadiad for analysis were counterfeited currency notes and not genuine currency notes. He has also produced report in this connection which is at Ex.71. A perusal of Ex.71, page 322 of the paper book, shows that he has certified that the notes received for analysis were counterfeited currency notes. The said report also bears his signature. Therefore, CR.A/1317/2003 25/55 JUDGMENT evidence of P.W.18, Bharat Kapilrai Mistri, gets corroboration from the report Ex.71. Therefore, it is duly proved that the currency notes which were recovered from A-2 and A-7 were counterfeited currency notes. The trial court has, therefore, rightly held that the currency notes which were recovered from A-2 and A-7 were counterfeited currency notes. It may also be noted that the learned advocates for the accused have also not disputed the said aspect. However, this Court has, just with a view to record its satisfaction, examined this piece