1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 1 OF 2010 Shri Mohammed Saiful Shaikh Native of Bahadurpure, Dist-Kalia Chak, Malda, West Bengal, presently undergoing imprisonment at Sada Jail. ... Appellant versus State of Goa through Vasco Police Station, Vasco-Goa. ... Respondent Shri J. Godinho, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 25TH NOVEMBER, 2010. ORAL JUDGMENT This appeal is filed by accused No.2/Mohammed Saiful Shaikh in Sessions Case No.31 of 2008 and is directed against Judgment dated 8-12-2009 of the learned Additional Sessions 2 Judge (3), Margao by which the accused No.2 (accused, for short) has been convicted and sentenced under Section 489-C, I.P.C. 2. Three accused were sent up for trial along with the present accused under Sections 489-A, 489-B and 489-C, I.P.C. Accused No.1/Anwar Hussain @ Badal is stated to be absconding and accused No.3/Tahil Ali is stated to have been sent for trial to the Juvenile Court, and learned Counsel have not been able to state anything as to the outcome of the said trial. The accused has been acquitted under Sections 489-A and 489-B, I.P.C. 3. A group of thirty labourers were arranged by Salim Khan, the brother of PW6/Faridul @ Rajiv Khan and were being brought by the latter to the construction site at Chimbel, Goa of WIG Brothers Pvt. Ltd. where PW3/Ranjit Kumar Choudhary works as one of the Engineers. PW6/Faridul @ Rajiv Khan came along with the said thirty labourers from Poona to Goa and reached Vasco Railway Station on 5-9-2008. PW5/Ramesh Kumar Dubey arranged for a mini bus to transport the said labourers to the said construction site. The bus driven by PW4/Ravi Kumar was accordingly arranged to transport the said labourers for a 3 sum of Rs.1,400/-. Thereafter, all the labourers sat in the said bus to proceed to Chimbel. Prior to that, two of the labourers went to the pharmacy of PW2/Michael Telles situated near the Vasco Railway Station. One of them was having a red bag and the other who was younger purchased a tooth brush and tendered a note of Rs.500/- without even asking for the price of the tooth brushes. PW2/Michael Telles suspected the note to be fake (counterfeit) and, therefore sent one of the employees by name Preeti to go to the Bank of India and verify whether the same was genuine and when Preeti was in the process of going to the Bank of India the said note was taken back on the pretext of missing the bus and the tooth brushes were paid for in cash. PW2/Michael Telles then got the number of the said bus through the said Ms. Preeti and phoned the Vasco Police Station whereupon PW7/PSI Siddhappa Kamble proceeded in search of the bus and intercepted it at Chicalim, and according to PW7/PSI Kamble, he located the said two persons in the bus along with the red colour bag and got their names as Mohammed Saiful Shaikh (accused) and Tahil Ali (accused No.3) both hailing from Malda, West Bengal. According to PW7/PSI Kamble the said red colour shoulder bag was found on the legs of the accused but little later he clarified that it was found between the legs of the accused. Thereafter 4 panchas were called and a panchanama was drawn. All the three accused were arrested and sent up for trial. In the course of the panchanama, PW7/PSI Kamble seized Rs.3,00,000/- in notes of Rs.500/- denomination. The said notes were sent to Currency Note Press, Nasik Road, Maharashtra and were found to be counterfeit as per the report produced at Exh.41. 4. Prosecution examined eight witnesses which included PW7/ PSI Kamble, PW4/Ravi Kumar, the bus driver, PW5/Ramesh Dubey, the supervisor of the said WIG Brothers Pvt. Ltd. who was in the said bus besides the panch witness PW1/Taurappa Lamani. PW5/Ramesh Dubey has also confirmed that the said red bag was found in between the legs of the accused. 5. The learned trial Court has accepted the prosecution evidence. The learned trial Court has discarded the so-called discrepancies as trivial in nature and has proceeded to convict and sentence the accused as aforesaid. The learned trial Court has noted that the accused was found in possession of the notes and all the notes were counterfeit notes. The learned trial Court stated that PW2/Michael Telles 5 corroborated the attempt made by the accused along with one more accomplice to circulate one note of Rs.500/- denomination and that his evidence was corroborated by PW4/Ravi Kumar that before boarding the bus he saw the accused with another person proceeding to Vasco and that he had also seen them entering the bus as the last passengers in the bus after returning from the pharmacy. As regards mens rea, the learned trial Court held that in this case the accused was found in possession of Rs.500/- counterfeit notes amounting to Rs.3,00,000/-, and one of the notes was sought to be circulated as genuine to Shri Telles. The learned trial Court held that the facts of the case in Umashanker v. State of Chhattisgarh((2001) 9 SCC 642) were different and did not apply to the facts of this case and ultimately held that the charge under Section 489- C, I.P.C. was proved. 6. Shri J. Godinho, learned Counsel on behalf of the appellant/ accused submits that the prosecution case on the whole cannot be believed. Learned Counsel submits that different timings given by different witnesses would indicate that the panchanama was not carried out at the scene of offence where the bus was intercepted. Learned Counsel further points out that the panchanama was not carried out at the 6 place of incident is also borne out in the discrepancies in the evidence of the witnesses who say that the panchanama was carried out either by taking the help of the bonnet of the jeep or nearby wall. Learned Counsel further submits that in case the currency notes were seized and sealed they could not have been shown to PW3/Ranjit Kumar Choudhary at the Police Station, as stated by him. With a view to highlight the said discrepancies, learned Counsel has pointed out to the evidence of the said witnesses where different timings have been given by them either as regards the duration of the panchanama or when exactly the incident took place. 7. Shri J. Godinho, learned Counsel then submits that one of the requirements of Section 489-C is that the possession of currency notes must be with knowledge or having reason to believe that same are counterfeit and intending to use the same as genuine which elements have not been proved by the prosecution and in this context, learned Counsel has placed reliance on several decisions to which reference will be made a little later. Learned Counsel also submits that no question was put to the accused that the said currency notes were fake or counterfeit, and, therefore the accused needs to be given benefit of doubt. 7 8. On the other hand, Shri C. A. Ferreira, the learned Public Prosecutor, submits that according to PW7/Siddhappa Kamble, the panchanama was carried out between 11.15 to 13.45 hours i.e. for little over two hours and according to learned Public Prosecutor this fact is corroborated by PW5/Ramesh Kumar Dubey when he stated that during the period of two hours the policemen sealed the notes inside the bus. Learned Public Prosecutor therefore submits that in case some of the witnesses including PW7/Siddhappa Kamble stated that they were at Chicalim junction for about half an hour to complete the formalities, the same need not be given much importance. Learned Public Prosecutor submits that the version of PW7/P.S.I. Kamble is sufficiently corroborated by panch witness PW1/Taurappa Lamani as well as PW5/Ramesh Dubey. As regards the requirement of Section 489-C, learned Public Prosecutor submits that in the case at hand, a counterfeit note was tendered by one of the accused and when it was suspected to be counterfeit it was withdrawn and this very note was subsequently found in the pocket of the accused when the bus was intercepted and Rs.3,00,000/- in counterfeit Rs.500/- notes were found between the legs of the accused and in such circumstances it was to be presumed that the accused had sufficient knowledge or reason to believe that what he was 8 carrying was counterfeit currency notes as required by Section 489-C, I.P.C. 9. PW7/P.S.I. Siddhappa Kamble after narrating about the information received by him from PW2/Michasel Telles, stated that he went in search of the bus and located it just before Chicalim junction and on the basis of the description given by PW2/Telles located the said two persons along with the said red colour bag. According to him, the accused was sitting in the middle seat of the bus and the other accused (accused No.3) was sitting by his side towards the window. That the accused was sitting in the middle seat is a fact which has been admitted by the accused in his statement recorded under Section 313 Cr.P.C. PW5/Ramesh Dubey has also stated that he was sitting in the cabin along with the driver and all the labourers were sitting in the bus. On reaching Chicalim, he stated, that police came and checked the passengers and then found two persons by name Mohammed Saiful(accused) and Tahil Shaikh(A-3) and a red colour bag was found with the accused. He identified the accused as the same person who was in the bus and from whom the red colour bag was attached. He also stated that after the accused was brought out of the bus he was taken at the Police Station. 9 Although, PW2/Michael Telles did not identify the accused before the Court as one of the persons who came to his pharmacy to purchase tooth brushes, he had identified him earlier at the test identification parade, and the fact remains that the present accused has been sufficiently identified both by PW7/PSI Kamble as well as by PW5/Ramesh Dubey who have absolutely no axe to grind against the accused and there is no reason why their evidence should not have been accepted. Moreover, the election identity card of the accused was found in the said red bag which was being carried by him. PW4/Ravi Kumar who was the driver of the said bus has also identified the accused as the person who was wearing multi- coloured check shirt and between whose legs the red colour bag was found. He has further confirmed that the red colour bag was in possession of the present accused. PW4/Ravi Kumar had also no axe to grind against the accused and he identified the accused who was found with the red colour bag containing the said notes. In my view, therefore, the prosecution by reliable and convincing evidence has proved that the accused was not only one of the persons who went out of the bus to purchase tooth brushes but also came last and was found with the said bag containing the said notes of Rs.500/- amounting to Rs.3,00,000/-, 10 and was found with one note, in his pocket, and, therefore there is no question of giving any benefit of doubt to the accused. 10. As regards the timing of the panchanama, PW7/PSI Kamble has stated that it was carried out between 11.15 to 13.45 hours and this fact is sufficiently corroborated by the panch witness PW1/Lamani who stated that the panchanama started at about 11.00 a.m. and went till about 2.00 p.m. PW5/Dubey has further confirmed this position by saying that “during this period of two hours the policemen were sealing the notes inside the bus”. In other words the evidence of at least three witnesses shows that the panchanama was carried out for two hours and therefore no much importance can be given to the statement of PW4/Kumar when he stated that they were there for about half an hour to complete the formalities or for that matter of PW6/Faridul when he stated that they were there for about 20 minutes. As regards the place, PW7/P.S.I. Kamble stated that the panchanama was written in the bus and thereafter on the compound wall. PW1/Lamani corroborates PW7/P.S.I. Kamble when he states that the panchanama was written by placing the paper on the compound wall and therefore no much importance can be given to the statement of PW4/Kumar when he stated that the panchanama was 11 conducted by taking the assistance of the bonnet of the jeep. It may be stated that the power of observation, retention and reproduction differs from witness to witness. The statement of PW5/Dubey cannot be read out of context to say that the accused was taken to the Police Station without conducting the panchanama when he stated that when the accused was brought out of the bus he was taken to the Police Station along with other persons as contended on behalf of the accused. 11. The case of M. Mammutti v. State of Karnataka(AIR 1979 SC 1705) was a case where the accused had handed over a counterfeit note of Rs.2/- to a friend to purchase a ticket for a circus show and the booking clerk on seeing the note got suspicious and had informed the police and upon the search of the accused 99 two rupee notes were recovered and the accused in his statement had explained that on the previous day he had sold three quintals of tamarind to a person whom he did not know and who had given him Rs.390/-, and he did not know that the same were counterfeit and he came to know that they were counterfeit when he was interrogated by the police. The Apex Court therefore held that there was no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at 12 them would convince any person of average intelligence that it was a counterfeit note. The Apex Court further held that “nor was any such question put to the accused under Section 342 of Cr.P.C.”, and, therefore the Apex Court held that it was impossible for them to sustain the conviction. 12. In Shakil Ahmed Shaikh v. State of Maharashtra(2005(2) Mh.L.J.) the accused was found in possession of 300 counterfeit notes of Rs.500/-. Regarding the evidence produced by the prosecution this Court observed that there were no independent witnesses except one panch witness who turned hostile. The Court also observed that in order to prove the commission of the said offence under Section 489-C, the prosecution had to prove that the accused had knowledge that the said notes were not genuine notes or were said to be used as genuine notes. It also appears that the report from the Mint was not obtained and produced in the trial of the accused. 13. In the case of Umashanker v. State of Chhattisgarh((2001) 9 SCC 642) the Apex Court observed that Sections 489-A to 489-E deal with various economic offences in 13 respect of forged or counterfeit notes or bank notes. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and bank notes. The currency notes are still the backbone of the commercial transactions by the multitudes in our country but these provisions are not meant to punish unwary possessors or users. That was a case where the accused had purchased one kilo of mango costing Rs.5/- and had tendered a fake note of Rs.100/- to the seller(PW4) who had doubted its genuineness and the accused was handed over to the police whereupon 13 more fake currency notes were recovered from him. 14. In the case of Madan Lal Sarma v. The State(1990 CRI. L. J. 215) a Division Bench of Calcutta High Court held that under Section 489-C it is to be proved that the accused intended to use the forged or counterfeit currency note as genuine or it might be used as genuine. It is for the prosecution to prove the circumstances which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously the note on the public. Thus knowledge or reason to believe that the note was forged has to be proved to fix the liability under Sections 489-B and 489-C. Unless it is found 14 that the accused had the knowledge or reason to believe that the said questioned note was a forged one, the question of his palming it off as genuine could not arise. 15. In the case at hand, the accused was found with six bundles of Rs.500/- currency notes amounting to Rs.3,00,000/-. The first note tendered by him, was immediately suspected to be counterfeit and therefore was immediately withdrawn and then found in his pocket. Therefore, as observed by the Apex Court in M. Mammutti v. State of Karnataka(supra) it could be presumed that the accused knew that the notes were counterfeit. Then the accused was found with the said red colour bag in between the legs with his election identity card and therefore it could be safely presumed that the accused was in possession of the said notes which subsequently have been confirmed by the Mint, as counterfeit. The accused has given no explanation for his possession unlike in the other cases cited. A labourer who came in search of work from a far of State could not have such a huge number of notes. From the facts proved by the prosecution mens rea on the part of the accused was clearly established. Therefore, it could not be said that the accused did not know or had no reason to believe that either the note he had tendered 15 or the notes he was found in possession were not counterfeit considering the huge volume of notes found in the possession of the accused. It was obvious that he had brought them to be circulated, and indeed had circulated one. That he did not succeed is another matter. As stated by the Apex Court in Ponnuswamy v. State(1997 SCC(Cri) 217) the accused in this case as well had no explanation to offer as to wherefrom had he obtained the forged currency notes. Silence on the part of the accused in such circumstances would by itself be a telling circumstance which would weigh against him in the consideration of the prosecution evidence led against him. 16. In the circumstances, the conviction and/or sentence imposed upon the accused, in my view, cannot be faulted. I find there is no merit in this appeal and the same is hereby dismissed. N. A. BRITTO, J. RD