^p^ HIGH COURT OF CHHATnSGARH AT BILASPUR Criminal Appeal No.02/2004 Kurukshetra Sena Vs. The State of Chhattisgarh Criminal Appeal No. 22/2004 Narendra Kumar Jain Vs. State of Chhattisgarh Criminal Appeal No.43/2004 Rawalmal Jain Vs. The State of Chhattisgarh Criminal Appeal No.52/2004 Narsingh Lal Maheshwari and others Vs. State of Chhattisgarh JUDGEMENT BE POSTEb FOR PRONOUNCEMENT ON 25/3/2010 Sd/- T.P. Sharma Judge / APPEI^LANT HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.02/2004 Kurukshetra Sena S/o Barju Sena; aged 53 years; Service in Railway R/o Sanjay Nagar Railway Colony House No.20; Jagdalpur bistt.Middle Bastar (C.G.) RESPONDENT APPELLANT RESPONOENT ^'^^HIVIIWWI^. APPELLANT RESPONDENT APPELLANTS Versus The State of Chhattisgarh; through Police Station AZAK Jagdalpur bistrict Middle Bastar (C.G.) Cn'minal ApDeal No. 22/2004 Narendra Kumar Jain S/o Surajmal Jain, Aged about 40 years, Occupation: Cloth Merchant, R/o PolQce Road near Sanjay Market, Jagdalpur, bistrict- Bastar (CG). Versus State of Chhattisgarh Through P.S. Scheduled Casts & Scheduled Tribes Welfare, Jagdalpur District - Bastar (C&). Criminal ApDeal No.43/2004 Rawalmal Jain S/o Late Shri Chunnilal Jain, aged about 67 years, Occupation Kirana Shop, resident of Housing Board Colony Bodhghat, Jagdalpur Ciistrict Bastar (CG). Versus The State of Chhattisgarh, Through the District Magistrate Bastar at Jagdalpur (CG). And Critninal ApDeal No. 52/2004 1. Narsingh Lal Maheshwari S/o Jhumar Lal Maheshwari Aged about 43 yeors, R/o Behind bamodar Petrol Pump Moti .- r? RESPONDENT Talabpara, Jagdalpur bistt.Bastar (C.G.) Babulal Inadi S/o Bhumar Lal Aged about 51 years R/o Housing Board Colony Bodhghat, Jagdalpur Distt.Bastar (C.G.) T.Appal Suri S/o Rajannu Aged about 58 years, R/o Railway Colony House No.34-B Jagdalpur bistt.Bastar (C.G.) Versus State of Chhattisgarh Through P.S. Parpa Scheduled Casts <& Scheduled Tribes Welfare, Jagdalpur Distt.Bastar (C.G.) (APPEALS UN&ER SECTION 374(2) OF THE COOE OF CRIMINAL PROCEDURE, 1973) (SB: Hon'ble Mr. T.P. Sharma, J.) Present: Mr.Alok Dewangan, counsel for the appellant in Cr./\. No.2/2004. Mr.Jitendra <9upta <& Mr.Rishi Rahul Soni, counsel for the appellant in Cr.A.No.22/2004. Mr.Rakesh Sahu, counsel for the appellant in Cr.A.No.43/2004. Mr.Y.C.Sharma, counsel for the appellants in Cr.A.No.52/2004. Mr.Rakesh Kumar Jha, Dy.Govt.Advocate for the State/respondent. JUDGMENT (Delivered on 25th March, 2010) 1. Criminal Appeal No. 2/2004 filed by Kurukshetra Sena, Criminal Appeal No.22/2004 filed by Narendra Kumar Jain, Criminal Appeal No.43 filed by Rawalmal Jain and Criminal Appeal No.52/2004 filed by Narsingh Lal Maheshwari, Babutal Inadi andT.Appal Suri are arising out of the judgment of conviction <& order of sentence dated 10.12.2003 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Jagdalpur, in Sessions Trial No.107/2002, therefore, they are being disposed of by this common judgment. ^-- ^- 2. Theaforesaid criminal appeals are directed against the judgment of conviction & order of sentence dated 10.12.2003 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of /\trocities) Act, 1989, Jagdalpur, in Sessions Trial No.107/2002, whereby & whereunder learned Special Judge after holding appellant Narendra Kumar Jain guilty for the offence punishable under Sections 489 B and 489 C read with Section 120B of the Indian Penal Codesentenced him to undergo rigorous imprisonment for three years <& to pay fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for nine months and rigorous imprisonment for two years and six months & to pay fine of Rs.6000/-, in default of payment of fine to further undergo rigorous imprisonment for nine months and appellants Narsingh Lal, Kurushetra Sena, Babulal Inadi, Rawalmal Jain and T.Appal Suri guilty for the offence punishable under Sections 489 C read with Section 120B of the Indian Penal Code and each of them have sentenced to undergo rigorous imprisonment for two years and six months <& to pay fine of Rs.7000/-, in default of payment of fine to further undergo rigorous imprisonment for nine months, respectively. 3. Conviction is impugned on the ground that without there being any evidence, especially conscious possession of fake currency notes with intent to use the same as genuine, the Court below has convicted and sentenced the appellants as aforementioned the thereby committed illegiality. 4. Case of the prosecution, in brief, that Rainu (PW-4) working as Gangman in Railway Department posted at Tokapal received his salary from his department containing currency note of Rs.500/-, he contacted to appellant Narendra Jain for change of Rs.500/-, appellant Narendra gave 5 currency notes of Rs.lOOA denomination. After taking the same, Rainu (PW-4) went to chicken shop and paid Rs.100/-, then chicken shopkeeper asked to show other currency notes and after perusing the same, shopkeeper told that currency notes are not genuine and are counterfeit. 'r----...-.. ^^ Other persons also present there. Station House In charge Frejerpur G.N.Singh (PW-7) was on patrolling near railway station, Tokapal. Rainu (PW-4) made a complaint relating to the aforesaid fake currency notes and lodged dehati nalishi vide Ex.P/15. 5 currency notes were seized from Rainu Ex.P/17.^ buring the course of investigation, investigating officer interrogated appellant Narendra Kumar Jain and seized 13 currency notes of Rs.500/-, 46 currency notes of Rs.100/-, 12 currency notes of Rs.50/- and another 4 currency notes of Rs.100/- vide Ex.P/19. He also seized 15 currency notes of Rs.500/-, 103 currency notes of Rs.100/-, 5 currency notes of Rs.50/-, 4 currency notes of Rs.10/-, 2 slips containing names of the persons, another 5 currency notes of Rs.100/- from accused Narsingh Lal vide Ex.P/20. Investigating officer also seized 5 currency notes of Rs.500/-, 24 currency notes of Rs.100/-, 3 currency notes of Rs.50/-, another 2 currency notes of Rs.100/- and 4 currency notes of Rs.50/- from accused K.K.Sinha vide Ex.P/21. During the course of investigation, investigating officer seized 3 currency notes of Rs.500/-, 19 currency notes of Rs.100/-, 6 currency notes of Rs.10/- and another currency note of Rs.500/- & Rs.100 from accused Rawalmal vide Ex.P/22. Likewise, investigating officer seized 13 currency notes of Rs.500/-, 61 currency notes of Rs.100/-, one currency notes of Rs.50/-, 9 currency notes of Rs.10/- and 5 currency notes of Rs.100/- from accused T.R.Suri vide Ex.P/23. Investigating officer also seized 19 currency notes of Rs.500/-, 100 currency notes of Rs.100/-, 96 currency notes of Rs.100/-, 100 currency notes of Rs.50/-, 19 currency notes of Rs.50/-, 39 currency notes of Rs.10/-, another 3 currency notes of Rs.100/-, 4 currency notes of Rs.50/- and 4 slips containing names of some persons from accused Babulal vide Ex.P/23. F.I.R. on zero number was registered vide Ex.P/16. Finally F.I.R. was lodged vide Ex.P/3. Spot map was prepared vide Ex.P/25. Accused persons were arrested vide arrest memos Exs.P/26 to P/32. Seized currency notes were sent for examination to General Manager, Currency Note Press, NasiK Road, Maharashtra vide Ex.P/33. Vide reports -5 ^ Exs.P/34 and P/35, 6 currency notes of Rs.100/- and 3 currency notes of Rs.50/- were found same numbers and were counterfeit. 5. Statement of the of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code') and after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who in turn committed thecase to the Court of Sessions, Bastar at Jagdalpur. The case was relating to Section 3(1) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, therefore, the case made over to the Special Judge under Atrocities Act, Jagdalpur. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 8 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. The accused have also examined defence witnesses Sushil Sahu (t)W-l), Maheshchandra Joshi (bW-2). Accused Rowalmal Jain has examined himself as defence witness and has deposed that on the alleged date of incident i.e. 22.12.2001, he was present in his house situate at Vrundawan Colony, Jagdalpur where the police came and took signature on some documents and thereby he has taken defence of alibi. Sushil Singh (bW-1) has deposed in his evidence that some persons were present at Parpa, they told that they have caught red handed fake currency notes, Rainuram and Mahesh Joshi were also present, he went along with Mahesh Joshi to bank and showed the alleged note to the bank officer, then bank officer told that currency notes are fake. He also telephoned to police station Frejerpur. Station incharge Police Station Frejerpur reached there and inquired into the matter. Rainuram informed the police officer that he had received fake currency notes from one Narayan Singh who had gone towards Chilmili. While they were passing near village Aarapur, the persons who had given currency notes to Rainu were coming by jeep, then police officer stopped the jeep/ ^r. Rainu indicated the persons who had given fake currency notes to him, then police took those persons to police station where notes were seized vide Exs.P/19 and P/21. Defence witness Maheshchandra Joshi has also corroborated seizure of Exs.P/19 and P/21. 7. After affording opportunity of hearing to the parties, learned Special Judge has convicted and sentenced the accused/appellants as aforementioned. 8. I have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 9. In the present case, seven accused persons were tried jointly and on the basis of the evidence adduced on behalf of the prosecution learned Special Judge/Additional Sessions Judge, Jagdalpur has convicted appellant Narendra Kumar Jain under Section 489B <& 489C read with Section 120B of the Indian Penal Code and appellants Narsingh Lal, Kurushetra Sena, Babulal Inadi, Rawalmal Jain, T. Appal Suri under Section 489C read with Section 120B of the Indian Penal Code. 10.Mr. Jitendra Gupta <& Mr.Rishi Rahul Soni, learned counsel appearing for appellant-Narendra Kumar Jain in Criminal Appeal No.22 of 2004 submitted that in order to convict appellant Narendra Kumar Jain under Section 489B <& 489C read with Section 120B of the Indian Penal Code, the prosecution was under obligation to prove the ingredient of the offence at the time of incident. He has sold or purchased or received from any person or otherwise traffics in or uses as genuine knowing or having reason to believe the same to be forged or counterfeit. The prosecution was under obligation to prove that the appeltant was in possession of currency note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or it may be used as genuine. Without any such intention or knowledge, the circumstances that it may be used as genuine, the only possession of counterfeit note is not offence punishable under Sections 489B <& 489C read with Section 120B of the Indian Penal Code. Learned counsel contended that at the time of seizure, no any fake currency notes were seized from the appellants, but after obtaining the report from the Currency Press Note, the prosecution has manipulated seizure memos while adding numbers of fake currency notes in the seizure and that part of the seizure memos and the evidence is not admissible in the evidence. 11. Learned counsel for appellant-Narendra Kumar Jain placed reliance in the matter of M.Mammutti v. State of Karnataka in which the Apex Court has held that mere look at them would notconvince anybody that they were counterfeit and in absence of any specific question of possession of counterfeit note to the accused, conviction under Sections 489B & 489C of the Indian Penal Code is not sustainable under the law. Learned counsel further placed reliance in the matter of Umashankar v. Stat of Chhattisgarh2 in which the Apex Court has held that mens rea is essential ingredient to constitute the offence under Sections 489B <& 489C of the Indian Penal Code and the prosecution is required to prove mens rea that the appellant was in possession of counterfeit currency note knowing or having reason to believe the same to be forged or counterfeit and in absence of such prove, any conviction under Sections 489B & 489C of the Indian Penal Code is not sustainable under the'e law. 12.Learned counsel appearing on behalf of other appellants submitted that the prosecution has utterly failed to prove any conspiracy for using fake currency note as genuine against the appellants. The prosecution has also utterly failed to prove the possession of counterfeit note with the appellants, therefore, any conviction or sentence under Sections 489B & 489C read with Section 120B of the Indian Penal Code are not sustainable under the law. 1/\IR 1979 SC 1705 2(2001) 9 SCC 642 13. Mr.Alok bewangan, learned counset appearing for appellant-Kurushetra Sena placed reliance in the matter of Veera swarny Shanmugam Sundaram v. The State of A.P.3 in which the High Court of Andhra Pradesh has held that in the absence of any knowledge of counterfeit note or factum of possession of counterfeit note, conviction of the appellants under Sections 489B <& 489C of the Indian Penal Code is not sustainable under the law. Learned counsel further placed reliance in the matter of Madan Lal Sarma v. The State4 in which the High Courtof Calcutta has held that mere possession of forged note does not shift burden on accused to prove innocence and knowledge or reason to believe that note was forged has to be proved. Learned counsel also placed reliance in the matter of Umashankar (supra). 14. In order to appreciate the argument advanced on behalf of the parties, I have examined the evidence adduced onbehalf of the prosecution and defence. In the present case, defence has examined Sushil Singh (OW-1) and Maheshchandra Joshi (bW-2) the witnesses of Exs.P/19 and P/21. Ex.P/19 is seizure of genuine notes along with fake currency notes from appellant NarendrQ Kumar Jain and Ex.P/21 is seizure of genuine notes along with fake currency notes from appellant Narsingh. Sushil Singh (DW-1) has deposed in his evidence that on the date of incident some persons were standing in front of his shop, they told that they have caught red handed fake currency notes. Mahesh Joshi (bW-2), complainant Rainu and Damru Sethiya were also present there, then they went to the bank along with these currency notes. Officer of the bank examined the notes and infirmed that the alleged currency notes were fake and they also informed the police station Prejerpur and police station Prejerpur immediately came to the bank and interrogated Rainuram whom Rainu Ram informed that Narayan Singh has given fake currency notes to him, then they chased and went towards Chilmili, at that time some 32001 CRI.L.J.3787 41990 CRI.L.J.215 persons were coming from jeep, police officials stopped the jeep and asked Rainu ram that who had given fake currency notes, Rainu Ram identified the persons, then they took all the persons to police station. After sometime, he along with Mahesh Joshi went to police station where the notes were seized. He has further deposed that when he reached to the police station with Mahesh Joshi, at that time all the accused persons were in custody. The police have not seized notes from the accused persons. In his cross-examination, he has admitted signature over seizure memos Exs.P/17 and P/19 to P/24 relating to seizure of genuine and fake currency notes from all accused persons. Substantially his evidence reveals that Rainu has intimated him and bank officer and also the police that these accused persons have given fake currency notes to him. The police officials took the accused persons to police station where seizure memos were prepared. Maheshchandra Joshi (bW-2) has admitted his signature over Exs.P/19 and P/21 and also in Exs.P/17 to P/24. He has identified accused Narendra Kumar Jain and Rainu Ram, but has.denied the suggestion that currency notes were seized from different accused, although he has admitted signature over seizure memos. The evidence of both the persons reveals that at the time of seizure and at the time of incident, police apprehended the appellants ond they have signed over seizure memos and documents. Appellant Rawalmal Jain has examined himself as defence witness under Section 315 of the Code who has deposed that prior to 17.12.2001 till 19.12.2001 he was not present at Jagdalpur and he was busy in his treatment, but has admitted his presence at Jagdalpur on 22.12.2001. In his cross-examination he has admitted that his reservation slip does not bear his name. He has denied the presence of accused persons in police station, but other defence witnesses have specifically deposed and admitted the presence all the accused persons in police station. 15.Rainu (PW-4) has deposed in his evidence that on 22.12.2001-Railway officer came for payment of salary, he received salary/ he requested 10 Narendra Kumar Jain for change of Rs.500/- currency note, then Narendra Kumar Jain gave him 5 currency notes of Rs.100/- denomination. Out of 5 currency notes, he gave one currency notes of Rs.100/- to chicken shopkeeper. He asked for other notes and also asked from whom he has received and also told him that currency notes are fake, then he told to police officer present on duty. In his detail cross-examination, he has admitted that frequently he used to take money from Narendra Kumar Jain and also used to return the same to him. He has also admitted that he has given Rs.500/- to Khodiya Seth, Rs.500/- to Narsinghand Rs.500/- to Narendra Kumar Jain for change. F.I.R. also reveals that he along with Damru, Mahesh Joshi and Sushil Singh went to State Bank. The Manager of the State Bonk has also examined and informed that currency notes are not genuine. Bronch Manager olso telephoned to police station. The appellants were runningbusiness of money lending, they went from jeep towards Chilmili. Hemnath ©bamru (PW-2) has deposed in his evidence that Rainu came to him and given Rs.100/-, he saw the currency note, the colour of currency notes were dark and was thicker than normal currency note, then he asked Rainu from where he obtained these currency notes, Rainu told him that he has obtained the same as a result of change. He has also produced other notes given by alleged Narendra Jain which were also not genuine, then he along with Mahesh Joshi went to State Bank, the officer of the State Bank told them that currency notes are fake. This witness has not supported the case of the prosecution and the prosecution has declared him hostile. In his cross-examination, he has deposed that Rainu has not told the name of any person or Narendra Jain. Arjun Singh Sethiya (PW-3), brother of Hemnath (PW-2) has corroborated the evidence of Rainu (PW-4). The evidence of these witnesses clearly reveals thot currency notes found in possession of Rainu were not genuine and at the first instance, currency notes appear to be fake. Ishwar Kumar Rajpal (PW-6) Manager, Bhartiya State Bank, Branch Tokapal has deposed in his evidence that on 22.12.2001 Mahesh Chandra Joshi, Hemnath ©bamru, 11 Sushil Kumar Singh and some other persons came to his bank and they produced three currency notes of Rs.100/- for examination.' After examination he told them that these notes are not genuine on the basis of their prima facie appearance. He has also deposed that he directed them to come at office time, but they have lodged the report. 16.The matter was mainly investigated by (y.N.Singh (PW-7) who has deposed that on 22.12.2001 at Tokapal he has registered dehati nalishi Ex.P/15at the instance of Rainu and also registered F.I.R. vide Ex.P/16. He has deposed that he has seized 5 currency notes from Rainu vide Ex.P/17, one commander jeep from M. Narayanrao vide Ex.P/18. Currency notes from accused Narendra Jain vide Ex.P/19. He has further deposed that he has also seized currency notes from accused Narsingh vide Ex.P/20, from K.K.Sinha vide Ex.P/21, from accused Rawalmal vide Ex.P/22, from accused T.Appal Suri vide Ex.P/23 and from accused Babulal vide Ex.P/24. In his detail cross-examination he has admitted that at the time of incident he was on village patrolling and Rainu informed that at Tokapal about the incident. He has denied the suggestion that he has not seized any currency notes vide Exs. P/17 and P/19 to P/22. He has admitted in para 12 of his cross-examination that he seized currency notes from accused K.K. Sena vide Ex.P/21. He has specifically stated in paras 13 to 20 of his cross-examination that he has seized different denomination notes from different persons vide Exs.P/17 to P/24 and he has denied the suggestion that he has not seized currency notes mentioned as additional in the aforesaid seizures from accused concerned. D.S.Uike (PW-6) Sub Divisional Officer has deposed in his evidence that he has conducted investigation and has sent currency notes for examination to Currency Note Press, Jail Road, Nasik vide Ex.P/12 and has received report vide Ex.P/13 which reveals that date of currency notes sent for examination. 29 currency notes of Rs.100/- denomination and 10 currency notes of Rs.50/0 denomination were of same numbers. The prosecution has also examined another Sub bivisional Officer b.R.S.Uike (PW-8) probably he 12 was on witness examined as PW-6. He has deposed that he has conducted investigation. He has deposed thot he has sent currency note for examination to Currency Note Press, Jail Road, Nasik vide Ex.P/33 and reports are Exs.P/34 and P/35. 17.In the present case, firstly charge was framed and witnesses were examined in the capacity of the Additional Sessions Judge, but after framing of additional charge for the offence punishable under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, these witnesses were again examined, therefore, he has deposed that report of currency notes as Exs.P/34 and P/35, but the same is one and the same as Ex.P/13 and P/14 which reveals that 5 currency notes of Rs.100/- denomination having same bearing number 6ND 335933, 5 currency notes of Rs.100/- denomination were having same bearing number 6Nb 335935, 5 currency notes of Rs.100/- denomination were having same bearing number 6Nb 335936, 4 currency notes of Rs.100/- denomination were having same bearing number 2VU 538839, 5 currency notes of Rs.100/- denomination were having same bearing number 2VU 538840 and 5 currency notes of Rs.100/- denomination were having same bearing number 2VU 538841. Reports Exs.P/34 and P/35 also reveal that 4 currency notes of Rs.50/- denomination were having same bearing number 5EE 954726, 4 currency notes of Rs.50/- denomination were having same bearing number 5EE 954727 and 4 currency notes of Rs.50/- were having same bearing number 5EE 954728. Total 29 currency notes of Rs.100/- denomination and 10 currency notes of Rs.50/- were same numbers and they were not genuine and were counterfeit. The appellants have admitted the possession of genuine notes, but have specifically denied the possession of notes seized from their pockets and were specifically found fake. In cross-examination of G.N.Singh (PW-7), he has specifically denied the suggestion that he has not seized currency notes which has been mentioned in the seizure memos Exs.P/17 andP/19 to P/24 from other pockets of the appellants. 13 ^f 18.In the present case, it is pertinent to note that seizures have been made on 22.12.2001. After completion of investigation, charge sheet was filed on 31.1.2002 and copy of the charge sheet has also been supplied to the appellants on the same day i.e. 31.1.2002. Charge sheet along with letter sent to Currency Press Note and receipt of the letter for examination of Currency Press Note with note were filed along with charge sheet, at that time, report of Currency Note Press was not available to the prosecution. Currency notes were examined by Currency Note Press vide its report dated 14th October, 2002, after about 9 months of filing of the charge sheet. It reveals that after receivjng receipt of report of analysis, no opportunity of tempering or addition in seizure memos was available to the prosecution. Vide Ex.P/17, 5 currency notes of Rs.100/- denomination were seized from complainant Rainu. As per report of Currency Note Press Exs.P-13/35, these 5 currency notes of 6 ND and 2VU sen'es were fake and not genuine on account of their appearance and the fact that more than one currency notes were found of