1 cria110-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.110/2009 Narayan Maruti Waghmode .. APPELLANT [ORIG.ACCUSED NO.1] VERSUS The State of Maharashtra ... Shri N.V.Gaware,Adv.for appellant. Shri D.V.Tele, APP for Respondent. ... CRIMINAL APPEAL NO.437/2009 The State of Maharashtra through Public Prosecutor, High Court Bench at Aurangabad. .. APPLICANT/APPELLANT [ORIG.COMPLAINANT] VERSUS 1] Narayan Maruti Waghmode Aged 28 years, R/o Pachunda Tq. Newasa, Dist.Ahmednagar 2 cria110-09 2] Bajirao Budhaji Shinde Aged 48 years, R/o Samarthnagar Ahmednagar 3] Babasaheb Nivrutti Sadare Age 35 years, R/o Miri, Tq, Pathardi, Dist. Ahmednagar 4] Absconding 5] Arun Mohan Gaikwad, deceased 6] Sunil Dattatraya Take Age 33 years, R/o Ganesh Colony, Ahmednagar 7] Kailas Govind Jadhav Age 26 years, R/o Pipe Line road, Padamanagar, Ahmednagar 8] Navnath Bhausaheb Wandhekar Age 43 years, R/o Mohaj Kd. Tq. Pathardi, Dist.Ahmednagar 9] Absconding. 10] Vishal Virendrasingh Chandel Age 26 years, R/o Sonai, Tq.Newasa Dist.Ahmednagar. 11] Shaikh Hanif Jainuddin 3 cria110-09 Age 27 years, R/o Mukundnagar Ahmednagar 12] Santosh Girwarsingh Shekhawat Age 38 yeras, R/o Pipeline Hudco Ahmednagar. 13] Dnyaneshwar Suryakant Unawane Age 26 years, R/o Sawata Nagar Bhingar, Ahmednagar. .. RESPONDENT [ORIG.ACCUSED] .... Shri D.V.Tele,APP for appellant Shri N.V.Gaware,Adv.for R.1,3,6,7,10 and 11. Shri C.V.Bhadane h/f Shri A.P.Avhad,Adv.for R.8. Shri Sadhana Jadhav,Adv.for R.12. .... CORAM : NARESH H.PATIL & T.V.NALAWADE,JJ. JUDGMENT RESERVED ON : 22/03/2011 JUDGMENT PRONOUNCED ON:31/03/2011 JUDGMENT : [PER NALAWADE,J.] Both the Appeal are filed against judgment and order of Sessions Case No.126/2006 which is decided by Additional Sessions Judge, Ahmednagar Shri M.G.Shevalikar. 4 cria110-09 2] The first appeal is filed by original accused no.1 Shri Narayan Waghmode as he is convicted and sentenced for offence punishable under Section 489-A of I.P.C. The second appeal is filed by the State against all the original accused as the trial Court has not convicted accused nos.1,3,10,11,12 and 13 for offence of criminal conspiracy punishable under Section 120-B of I.P.C. and as the trial Court acquitted the remaining accused. Accused Nos.3,10,11,12 and 13 are convicted for the offence punishable under Section 489-B of I.P.C. 3] The facts leading to the institution of these 2 appeals can be stated in brief as below : Police Inspector Shri Mallesh was attached to L.C.B. Ahmednagar. On 13/5/2006, he received information from his informer against accused No.1 Narayan Waghmode that Waghmode was living as a tenant in the house of one Namdeo Kamble at Padmanagar situated on Pipeline road and Waghmode was preparing fake currency notes. Information was received that Narayan and his associates were circulating the fake currency notes in the market. Mallesh collected 2 panch witnesses, his staff and he effected the raid. When the raiding 5 cria110-09 party entered the 2 rooms, which were occupied by Narayan Waghmode, they noticed that Narayan was imprinting water mark of Mahatma Gandhi on a currency note. In the room and around Narayan, some material was found spread which is required for preparing fake currency notes. Many fake currency notes were recovered from the room and also from the person of Narayan. The fake currency notes were of the denomination of Rs.1000, 500 and 100. Currency notes of the same denomination were bearing the same number. It was noticed that non-judicial stamp paper was used and security wire was separated from them for preparing fake currency notes. Hundreds of stamp papers purchased by Narayan Waghmode in the name of one Cooperative society and some stamp papers purchased by another person by name Wagh were recovered from the room. Many stamp papers were found in cut condition and on some stamp papers, one side of currency note was found to be printed. 4] During the enquiry, Mallesh learnt about the associates of Narayan Waghmode and he deputed his staff to search the associates. When the seizure of the aforesaid articles was going on in the rooms occupied by Narayan Waghmode, the staff of Mallesh 6 cria110-09 brought 2 persons viz. Bajirao Shinde and Babasaheb Sadare to the room. Their names were given by Narayan. From the person of Sadare, few fake currency notes of Rs.500/- denomination were recovered. 5] Mallesh prepared seizure panchanamas in the presence of panch witnesses and under 2 separate panchanamas the fake currency notes recovered from the custody of Narayan and from the custody of Sadare came to be seized. Prakash Shinde P.S.I. was also attached to L.C.B. participated in the raid and reported about the incident to Topkhana police station, Ahmednagar. On the basis of this report, crime at C.R.No.133/06 came to be registered in Topkhana police station. Superintendent of Police of Ahmednagar came there and he handed over the investigation of the case to P.I. Mallesh. 6] During the investigation, on the basis of information collected from Narayan Waghmode, some more persons came to be arrested. On the basis of information given by accused Kailash Jadhav, one scanner-cum printer came to be recovered. Receipt of purchase of this scanner was present in the room of Narayan. Police recorded statement of the person from whom printer was purchased. The 7 cria110-09 statement of the person with whom the printer was found was also recorded. The names of accused nos.4 and 9 were transpired during investigation to police but police could not trace them and they remained absconding throughout. 7] Mallesh arranged to send the aforesaid fake currency notes and other fake currency notes recovered from other accused to Government printing press for opinion. On 3 different occasions, the fake currency notes were received by the Government printing press and the Government Printing press gave opinion that the currency notes were counterfeit. After completion of investigation, Mallesh filed charge sheet against the appellant of the first appeal and respondents of the second appeal. Accused nos.4 and 9 were shown as absconding. Before starting of trial, accused no.5 died and the case came to be abated against him. The Magistrate committed the case to the Court of Sessions and the charge came to be framed for offences punishable under Section 489-A and 489-B of I.P.C. and also for offence under Section 120-B of I.P.C. Charge for common intention under Section 34 of I.P.C. was also framed. All the accused pleaded not guilty. After recording the evidence, opportunity was given to all the accused to have their say under Section 313 of Cr.P.C. The trial 8 cria110-09 Court has convicted accused no.1 Narayan Waghmode for offence punishable under Section 489-A and he is sentenced to suffer R.I. for 7 years and to pay fine. Accused nos.3,4,10,11 and 13 are convicted and sentenced for offence punishable under Section 489-B of I.P.C. and each of them is sentenced to suffer R.I.for 3 years and to pay fine. Accused nos.2,6,7 and 8 are acquitted by trial Court. 8] In the appeal filed by the State, it is the main contention of the State that there is sufficient evidence to make out the offence of conspiracy. The challenge is also made to the decision of acquittal given in favour of accused nos.2,6,7 and 8. This Court has heard both the sides and the record of the trial Court is perused. 9] On behalf of the State, it was submitted that there is evidence to establish link amongst all the accused who were charge sheeted and inference can be drawn that there was criminal conspiracy to counterfeit currency notes and to circulate them in the market. On behalf of accused and convict, it was submitted that the prosecution has failed to establish any communication between accused no.1 and other accused and also between any 2 other 9 cria110-09 accused interse. Arguments were advanced for defence on some loopholes which are present in the case of prosecution due to absence of evidence of witnesses like carrier. 10] Before considering the evidence given by prosecution, the relevant provisions need to be kept in mind, so that from the evidence, it can be ascertained as to whether there is evidence on ingredients of the offence. In Section 28 of I.P.C., definition of Counterfeit is given as under : “S.28] A person is said to be “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will there by be practised. Explanation I- It is not essential to counterfeiting that the imitation should be exact. Explanation II- When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the 10 cria110-09 contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.” The aforesaid definition states that imitation is not required to be exact. It also says that it is not necessary that counterfeit note should be made with primary intention of its being looked as genuine. It is sufficient if resemblance to genuine currency note is so caused that it is capable to being passed as such. In this regard, expert’s evidence can be considered by the Court. Explanation-II of Section 28 shows that the presumption of the intention can be drawn if the conditions led in the Section are satisfied. In that case, the duty of the accused will be to rebut the presumption. Section 489-A runs as under : “S.489-A. Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency note, or bank note, shall be punished with imprisonment for life, or with imprisonment of either 11 cria110-09 description for a term which may extend to ten years, and shall also be liable to fine.” This provision says that the prosecution is required to prove that the accused was knowingly performing any part of the process to counterfeit currency notes [underline added]. It is needless to mention that for proving the offence of conspiracy, there must be some convincing evidence to the prosecution to prove that it was pre- arranged plan of all or some of the accused either for preparing fake currency or for their circulation. Only on the basis of circumstance like some persons were found in possession of counterfeit currency notes at or about the same time, inference cannot be drawn that all of them had engaged themselves in a conspiracy. However, if an accused is found in possession of counterfeit currency notes, it is upto him to furnish satisfactory explanation regarding the possession. This proposition is also applicable in respect of the material which can be used for preparing fake currency notes and the process which can be used for making fake currency notes. If there is no such explanation, a person found in possession of such material and counterfeit currency notes can be convicted for offence under Section 489-A of I.P.C. 12 cria110-09 11] The evidence of Mallesh (P.W.26) shows that he was there right from beginning and he filed the charge sheet. He has given evidence that on the basis of information received by him, he effected the raid and he had taken panch witnesses with the raiding party. He has deposed that there was specific information against accused no.1 Narayan Waghmode and the place where the illegal activities were going on was also described by the informant. His evidence at Exh. 232 shows that when the raiding party alongwith 2 panch witnesses raided the 2 rooms, accused no.1 Waghmode was present in a room and he was actually busy in carrying out one process for preparing fake currency note. Much was argued for defence in respect of the circumstance that the information received by Mallesh was not reduced to writing. L.C.B. office is not expected to maintain the station diary, though it is expected to maintain some register. Only because the information was not reduced to writing by Mallesh, the entire case of the prosecution cannot be doubted. The evidence can be closely scrutinized and there is huge evidence which includes many fake currency notes and partly prepared fake currency notes. The report to the concerned police station was given on the same day by a member of the raiding party. Evidence is given that the property was also 13 cria110-09 produced on the same day in the police station, though no record in respect of muddemal register of Topkhana police station is produced. It was also argued that proper procedure like sealing was not followed by Mallesh at the time of seizure of fake currency notes and material in the rooms of accused no.1. The record shows that the numbers of the fake currency notes were noted in the panchanama and that were mentioned in the report given by Shinde (P.W.1). Considering the nature of the property seized, not much can be made out due to the circumstance like the non sealing of the packets in which the articles seized were kept. Some reported cases are cited on this point but the facts of the reported cases are different. 12] Mallesh (P.W.26) has described the material which was found in the room of accused no.1 to some extent. He has deposed that there were counterfeit currency notes, there were partly prepared counterfeit currency notes, there were pieces of non judicial stamp papers. there were stamp papers, cutters, ink etc. Article nos.1 to 38 are identified by Mallesh. Mallesh has given evidence that during investigation, he forwarded the currency notes seized by him to Government press. 13] Shinde (P.W.1) P.S.I. who gave the report after participating in 14 cria110-09 the raid has given evidence at Exh.122. His evidence is similar in nature but it is more specific as regards the counterfeit currency notes recovered from the room and from the person of accused no.1 and also with regard to the material taken over from the room by the raiding party. He has deposed that when they entered the room, accused no.1 was printing watermark on currency note of Rs.500 denomination by using white pen. He has deposed that 31 fake currency notes of Rs. 1000/- denomination, 9 currency notes of Rs.500/- denomination and 2 currency notes of Rs.100/- denomination were recovered from the room. He has given evidence on recovery of currency notes from the person of accused no.1. Shinde (P.W.1) has deposed that 5 fake currency notes of Rs.500/- denomination printed on one side were recovered, 22 papers of stamp on which there was printing of fake currency notes on one side were recovered and many non-judicial stamp papers were recovered. He has given evidence on the recovery of security wire and he has deposed that rubber stamp of a cooperative society was recovered and in the name of the society hundreds of stamp papers were purchased by accused no.1. The evidence of Shinde shows that currency notes partly prepared and in different stages of counterfeiting were in the room of accused no.1. There were about 592 non-judicial stamp papers purchased by 15 cria110-09 accused no.1 and there were 116 stamp papers purchased in the name of one Shri Wagh. Packing box of a scanner cum printer with user manual for use of the printer was also found. If the evidence of Shinde, his report and panchanama are compared, it can be said that there were atleast 24 currency notes of Rs.1000/- denomination bearing No.SDA-41032, there were seven currency notes of Rs.1000/- denomination bearing no.9-BG-305882 and there were 9 currency notes of Rs.500/- denomination bearing Sr.No.6-EB-830785. The evidence is given that photographs of the incident of seizure were taken but the photographer is not examined, so that part of evidence needs no discussion. 14] Panch witness Jadhav (PW 2) has given similarly evidence at Exh.145. He has specifically stated that accused no.1 was doing some process which involved printing of picture of Mahatma Gandhi on a currency note. In his evidence, the panchanama of seizure is proved at Exh.146. This witness and aforesaid 2 police witnesses have given evidence about the production of Shri Sadare in the room after some time by police. The evidence is given that 5 currency notes of 500 denomination were recovered from the possession of Shri Sadare. The panchanama in respect of seizure of these currency notes is 16 cria110-09 proved at Exh.147. 15] The defence counsel submitted that Jadhav (PW 3) is stock witness of police and so no reliance can be placed on his evidence. In view of the aforesaid material collected by the police and the nature of evidence given by Jadhav (PW 3), it is not probable that Jadhav was not present on the spot. Nothing is brought on record to create probability that Jadhav did not accompany raiding party. It is admitted that he had acted as a panch witness for police in 4-5 cases but on the basis of this circumstance only, evidence of Jadhav cannot be discarded. His evidence is consistent with the aforesaid evidence and so we hold that Jadhav also needs to be believed. The aforesaid evidence and the material which is seized by police has ruled out possibility of implanting the material by police for falsely implicating accused no.1. 16] There is more evidence to corroborate the aforesaid evidence. Prosecution has examined 2 stamp vendors. The evidence of stamp vender P.W.18 at Exh.199 is convincing in nature as it has circumstantial check. His evidence shows that he had brought his register to the Court and the extracts of the register are produced. 17 cria110-09 They show that accused no.1 had purchased stamps as mentioned by this witness. It is already observed that hundreds of stamps were recovered from the possession of accused no.1 and the accused has not given any kind of explanation in respect of this material. This evidence is sufficient to prove that accused no.1 was found in possession of the counterfeit currency notes of different denomination having the same serial number and some material required to prepare them. Evidence is given that these currency notes were sent to Government printing press and the report alongwith evidence of investigating officer Mallesh is sufficient to prove that the same notes were sent to the Government printing press. Ashok Shirsat carrier constable has given evidence at Exh.221 and his evidence shows that on 26/5/2006, he carried 3 envelopes to Government printing press. To prove that other notes were also sent to the press, there is evidence of one more police officer. The evidence of Mallesh the other police officer and the carrier constable is sufficient to link the reports given by Government printing press, Nasik with the counterfeit currency notes recovered from the possessions of accused no.1 and other accused. The report at Exh.242 is in respect of currency notes recovered from the possession of accused no.1. The report shows that all these currency notes were counterfeit notes. The material recovered from 18 cria110-09 the possession of this accused and the evidence of aforesaid witnesses is sufficient to infer that accused no.1 was involved in the process of preparation of fake currency notes. 17] The evidence given as against this accused on conspiracy is not that convincing. The evidence of Chandar (PW 4) at Exh.156 and evidence of concerned police officer cannot be used as nothing was recovered on the basis of so called statement given by accused no.1 and this evidence cannot be relied upon in view of the scope of Section 27 of Evidence Act. From this record, prosecution wanted to prove that accused no.1 had given the names of other accused persons and so the other persons were traced out and more currency notes were recovered. Atleast evidence of Chandar and the police officer does not show that the statement given in this document led to some discovery. 18] The evidence of Vilas Adole a panch witness is of no use to the prosecution. This evidence does not show that the witnesses had knowledge about giving of the fake currency notes at petrol pump by any of accused. His employer Mahesh (PW 2) has fairly admitted that he is not in a position to show as to who had given a currency note of 19 cria110-09 500/- to him. So this evidence needs no more discussion. The evidence of so called demonstration given by accused no.1 for preparation of fake currency notes cannot be used as it is hit by Section 25 of Evidence Act. So the evidence of Atul (PW 11) a panch witness and the police officer in respect of so called demonstration given by accused no.1 cannot be used against him. 19] Subhash Gadakh (PW 14) has given evidence at Exh.187 that accused no.10 had given him a fake currency note of Rs.500/- and this currency note was handed over by him to police. He could not identify the currency note which was handed over by him to police. 20] Bhosale (PW 16) has given evidence at Exh.195 that on the basis of information he raided the spot and he arrested accused no.10 and recovered fake currency note of Rs.500/- denomination from the possession of accused no.10. The panch witness has not supported this version. Accused no.10 Chandel is convicted but he has not filed any appeal. For ascertaining as to whether there is evidence of conspiracy, it can be said that this evidence is very weak and it is not sufficient to show that there was any plan with regard to preparation of fake currency notes. Against Chandel accused no.10 attempt is made 20 cria110-09 to give evidence that he had circulated the fake currency notes. The person like Subhash Gadakh is bound to State for prosecution as fake currency note was actually recovered from him. At the most, this evidence can be considered against accused no.10 for proving the offence punishable under Section 489-B of I.P.C. 21] Devidas Sonawane (PW 19) was also attached to LCB and he has given evidence at Exh.206 that during course of investigation, accused no. 12 Shekhawat gave statement to him on 27/7/06. Devidas has given evidence that Shekhawat informed that he had given fake currency notes to Pintya and memorandum of statement was prepared accordingly. Devidas has given evidence that Shekhawat then took police and panchas to the house of Pintya. Three fake currency notes of Rs.500/- denomination each and 8 fake currency of Rs.100 denomination each were produced by Pintya and they were seized under panchanama at Exh.210. Sonawane has given evidence that article no.45 the aforesaid fake currency notes were recovered from the possession of Shekhawat on the basis of statement given under Section 27 of Indian Evidence Act. There is no independent corroboration. In any case, this evidence is of no use to prove offence of conspiracy. 21 cria110-09 22] Devidas (PW 19) has stated that on 28/7/06, accused no. 11 Shaikh gave statement to him in the presence of panchas that he was in possession of fake currency notes and he had attempted to destroy some fake currency notes. The memorandum of statement is proved as Exh.211. Devidas has given evidence that Shaikh produced 2 currency notes of Rs.500 denomination each from his house and he produced pieces of currency notes from the vicinity of his house. Seizure panchanama Exh.212 is proved in the evidence of Devidas. There is no independent corroboration. Accused No. 11 Shaikh has not challenged the decision of conviction and sentence. The evidence given against Shaikh, accused no.11 also does not show that Shaikh had meeting with accused no.1 or others and he was a party to conspiracy if any in aforesaid regard. 23] Deshmukh (PW 23) has given evidence against accused No.7 Kailash Jadhav. Kailash is acquitted by trial Court by holding that even if the evidence given against Kailash is accepted as it is, it is not incriminating in nature. Prosecution wanted to prove that a printer scanner in respect of which receipt was recovered from the rooms of accused no.1 was recovered on the basis of statement given by 22 cria110-09 Kailash. There is evidence of Gaikwad (PW 20), who has tried to say that