1 APEAL 501 OF 2006 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.501 OF 2006 1. Chandrashekhar @ Babu Puranchandra Maharana, age; 27 years, Occn. Service, residing at: 7 Bunglow, Sagar Kutir, Opp. Kuwa, Andheri (W) Mumbai 400 061. 2. Niranjan @ China Shankarsan Sethi, residing at: Bharat Nagar, Versova Link Road, Andheri (W), Mumbai 400 058. (at present in Aurthur Road Jail .. Appellants. Orig. Accused. -versus The State of Maharashtra .. Respondent. Mr. Niranjan Mundargi, Advocate, for the appellants. Ms. R. M. Gadhavi, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 2nd December, 2011 Oral Judgment 1. This appeal is directed against the conviction of the appellants for the offence punishable under Sections 489B and 489C read with section 34 of the Indian Penal Code and sentence to suffer R.I. for 10 years with fine of Rs.1,000/- 2 APEAL 501 OF 2006 each or in default R.I. for six months, imposed upon the appellants by the learned Additional Sessions Judge, Mumbai. 2. Facts which are material for deciding this appeal are as under:- The appellant and co-accused had gone to the shop of one Motilal Yadav on a foot path at Andheri. They purchased two Baba suits for Rs.200/-. The appellant No.1 gave him two currency notes of Rs.100/- towards price of the two suits. The vendor found the notes to be fake and therefore, altercation ensued. People gathered there. The appellants tried to run away, persons gathered caught both the accused and took them to the police chowky which was nearby. Thereafter on a report by complainant, offence was registered. Two fake currency notes which had been given to the complainant were seized as also other currency notes found in possession of the two accused persons. Those notes were sent to the Currency Note Press at Nasik and the Currency Press Note reported that in all 17 notes were fake. On completion of investigation, chargesheet was sent to the Court of of Metropolitan Magistrate, Andheri, who committed the case to the court of Sessions. 3. The learned Additional Sessions Judge to whom the 3 APEAL 501 OF 2006 case was made over, charged the appellants of offences punishable under Sections 498B and 498C read with 34 of the Indian penal Code. Since the accused persons pleaded not guilty, they were put on trial at which the prosecution examined in all 7 witnesses to bring home the guilt of the appellant. 4. After considering the prosecution evidence in the light of defence of being falsely involved, learned Additional Sessions Judge, convicted and sentenced the appellants as aforementioned. Aggrieved thereby the appellants are before this Court. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record. 6. P.W.1 Motilal is the vendor to whom the appellant No.1 had given two fake currency notes of Rs.100/-. He states that after two accused persons were taken to the police station, he returned back to his shop. Thereafter a civilian informed that he was called at D.N. Nagar police and therefore, he went to the Police station. Then his report was recorded. The report is at Exh.14. Cross examination comprises of suggestions of non involvement of the accused 4 APEAL 501 OF 2006 which have been denied by the witnesses. P.W.2 Abdul Rehman Abdul Satar Khan is another hawker, whose shop was just at a distance of 2 to 3 feet from P.W.1’s shop. He too corroborates the version of P.W.1 that the appellant No.1 had given two fake currency notes to the first informant. He too states that a lady who was at the shop of P.W.1, stated that the notes were fake. This lady has been examined as P.W.7. Said witness Lekha Vaidya, stated that she was a customer of the complainant and complainant showed her two currency notes of Rs.100/-each and asked her whether the notes were fake or genuine and she told him that the notes were fake. She identified the accused persons who were before the Court who have allegedly given those notes. P.W.3 Shaikh Nimberali is panch, in whose presence currency notes were seized from the two accused persons and panchnama at Exh. 19 was drawn. He refused to support the prosecution and therefore, was declared hostile. He, however, admitted in the cross examination that the police told them that a search of the accused person was to be taken in his presence. He further stated that some currency notes were taken out from the black and red wallets. In the cross examination of this witness for appellants, he stated that he was simply asked to sign panchnama. Therefore, the evidence of this witness does not help prosecution. P.W.4 Ram Yadav is another vendor on the foot path where complainant has his shop. He stated that 5 APEAL 501 OF 2006 in his presence both the accused persons were taken by police. He did not state that he had seen fake notes. P.W.5- Police Sub Inspector - Ahmedkhan Kasamkhan Pathan, stated that at about 10.30 or 11.00 p.m., A.S.I. Chavan, gave a report about apprehending appellants which is at Exh.25. He recorded report of the complainant vide Exh. 14, registered offence, seized two fake currency notes produced by the complainant in presence of panchas, took personal search of the accused persons and seized cash and other articles from the accused by drawing up panchnama. The fake currency notes were seized and sealed by him which bear signatures of panchas vide Exh.20 and 21. He identified the articles before the Court. He himself has handed over the three sealed packets to the Currency Note Press at Nasik, for expert’s opinion. P.W.6- Police Inspector - Chandrashekhar Ambaji Gaikwad, claims to have sent fake currency notes to the Currency Note Press vide requisition at Exh.28. He received acknowledgment at Exh.29. Reports from the Currency Note press are at Exh. 24. 7. Learned counsel for the appellant submits that though ASI Chavan, had in fact apprehended the accused person on the spot and taken them to the police station he was not examined. He pointed out that the incident allegedly took place at 9.30 p.m. The offence itself was registered at 6 APEAL 501 OF 2006 23.15 hrs, almost after one hour and 45 minutes. and that there was no explanation for this delay. He also submitted that there was delay in taking search of the appellants and search itself was taken from 23.30 hrs to 00.30 hrs of next day. He submitted that the chargesheet was also not specific as it does not mention as to how many notes were found in possession of appellant and how many notes were used by the appellant. He submitted that the notes were not promptly sent to the Currency Note Press, and the Press had received those notes on 3rd May, 2005, though had they were shown to have been despatched on 28.4.2005. He submitted that there was nothing to show that the notes were sealed in a seal cover at the time of seizure and the specimen impression of the seal was not sent to the Currency Note Press. Lastly he submitted that there was nothing to show that the appellants had knowledge that the notes were forged. According to him merely because the appellants were trying to run to save himself from the mob fury, it could not be inferred that the appellants had guilty mind. 8. The learned APP submits that all these submissions have absolutely no force. She pointed out that non examination of A.S.I. Chavan, was thoroughly inconsequential. since he had reached the spot only after notes had already been used by the appellant No.1 for making the payment to 7 APEAL 501 OF 2006 P.W.1. He had merely taken the appellants to the police station. She submits that as soon as the accused persons were taken by A.S.I. Chavan to police station, since complainant Motilal and another vendor were not expected to run with the appellants to police station, complainant was called to the police station immediately, and then his report was recorded. Therefore, in the opinion of learned APP there is no delay in recording report. She submitted that the time spent was natural which would be required for the police officer to note the facts before calling the person, who had been given forged notes to the police station, and take his report. Learned APP, therefore, submitted that there is nothing to show that any case was cooked up against appellant during the period which was spent in recording the report. In my view, time taken is not such as to cast a shadow of doubt on the report of the complainant or the evidence of complainant, since ordinarily the police officer would not be expected to record report in respect of forged currency notes without at least ascertaining as to what had happened. It is also not to be expected that police officers are sitting idle at the police station waiting for reporters to come and therefore, it has to be held that the report was recorded as soon as the officer found time. 9. The learned Additional Public Prosecutor sought to 8 APEAL 501 OF 2006 submit that the notes which were found in possession of complainant had also seized by the police officer under panchnama. Panchnama is at Exh.19, unfortunately does not show that the notes had been seized from the complainant. It appears that the officer does not seem to have seized notes by proper panchama. Ordinarily this omission should have cost prosecution, dearly. However, two notes given to the complainant which P.W.5 - PSI- Ahmed Khan, claimed to have seized were absolutely forged and they did not require an expert to certify that they were forged since the notes bore same No.IPS 177362. This is not all, notes bearing same No. IPS 177362 were seized from search of both the accused persons as can be seen from the panchnama. If the accused persons carrying notes of same numbers, it would be difficult for the accused to claim that they were innocent and they did not have knowledge that the notes were forged. Apart from this, two notes of same Number. IRN 116936 of the denomination of Rs.100/- and notes bearing same No.3EV 786543 were seized from the appellant No.1. It cannot be co- incidence that notes bearing same number 3EV 786543, as also three notes bearing No.IRN116936 were also seized from the appellant No.2. He was also found in possession of a fake note of Rs.500/- 10. Though the panchnam does not mention that the 9 APEAL 501 OF 2006 notes had been sealed in an envelope. Panch P.W.3, had stated that he identified the envelope which bears his signature. Now this envelope could not have come from nowhere and since his signatures were on the envelope, the omission of the officer to record that notes were kept in sealed envelope is not material There can be no doubt that the officer should have promptly lodged the notes with Currency Note Press and should not have waited for doing so. According to P.W.5, he himself handed over all the three sealed packets to the authority, rather than sending them with constable. Therefore, the delay in lodging packets with the laboratory need not result in inferences that the investigation machinery had deliberately sent same same fake notes cooked up in the police station, since there are three witnesses, who had also seen notes on the spot itself. 11. In view of this, though the learned counsel for the appellant has sought to express his doubts about the adequacy of evidence in proving guilt of the appellant , when the evidence is read in its entirety it cannot be said that the conviction of the appellants for the offences punishable under Sections 489B and 489C, recorded by the learned Additional Sessions Judge is erroneous. As far sentence is concerned though the learned counsel for the appellant submits that the sentence is excessively harsh. Considering that the offence 10 APEAL 501 OF 2006 was of circulating forged currency notes, the sentence awarded is justified. In view of this appeal is dismissed. (R. C. CHAVAN, J.)