CR.A/1298/2006 1/62 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1298 of 2006 With CRIMINAL APPEAL No. 1364 of 2006 With CRIMINAL APPEAL No. 1412 of 2006 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 ? ========================================================= OMPRAKASH DWARKAPRASAD SONI - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : Criminal Appeal No. 1298 of 2006 MS SADHANA SAGAR for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent Criminal Appeal No. 1364 of 2006 MR YOGESH S LAKHANI for appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for respondent Criminal Appeal No. 1412 of 2006 MR YOGESH S LAKHANI for the appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for respondent ========================================================= CR.A/1298/2006 2/62 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 22/03/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Instant batch of three criminal appeals under Section 374 of the Code of Criminal Procedure ('the Code' for short) is directed against the judgment and order dated 9.6.2006 rendered in Sessions Case No.6 of 2005 by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, by which the appellants of all these three appeals, who are original accused Nos.1, 2 and 3 respectively ('A-1', 'A-2' and 'A- 3' for short) have been convicted for commission of the offences punishable under Section 489B and Section 489C read with Section 34 and Section 120B of the Indian Penal Code ('IPC' for short) and all of them have been sentenced to suffer R.I. for ten years and fine of Rs.5,000/- i.d., CR.A/1298/2006 3/62 JUDGMENT R.I. for further period of one year for commission of the offenecs punishable under Section 489B and Section 489C read with Section 34 and Section 120B IPC. 2. The prosecution case as disclosed from the FIR and unwrapped during the trial is as under: 2.1. On 3.5.2004 at about 12.30 P.M., A-1, Omprakash Dwarkaprasad Soni, came to Bank of Baroda, Rakhial Branch, Ahmedabad for depositing an amount of Rs.20,000/- in Rs.1,000 denomination, in his S.B.A/c. No.17506. He filled up the pay-in-slip form which provides for necessary informations such as Account Number, name and also denomination of the currency notes, on the back side of it and thereafter presented the currency notes and the pay-in-slip form along with pass book before the cashier. The cashier found that the said currency notes of Rs.1,000 denomination were fake. He, therefore, contacted the Head Cashier, Assistant Branch Manager and Branch Manager of the bank. All of them also CR.A/1298/2006 4/62 JUDGMENT verified the said currency notes presented by A-1 with the help of ultra-violet light and they also opined that the notes of Rs.1,000 denomination presented by A-1 were fake. The Branch Manager called A-1 in his chamber and thereafter contacted the head office on telephone soliciting advice. The head office of the Bank advised him to file complaint. On receiving the advice from the head office, P.W. 1, Ramanbhai Ishwarbhai Makwana, the Branch Manager, informed the PSI of Rakhial Police Station regarding the incident, pursuant to which PSI of Rakhial Police Station came to the Branch office of the Bank of Baroda, Rakhial Branch and made preliminary inquiry. PSI Rakhial Police Station also found that the currency notes of Rs.1,000 denomination presented by A-1 in the bank for depositing in his account were fake. Thereafter P.W.1, Ramanbhai Ishwarbhai Makwana, Branch Manager of Bank of Baroda, Rakhial Branch gave a written complaint on his Letter-pad with regard to the alleged incident. 2.2. Prior to registration of the complaint, CR.A/1298/2006 5/62 JUDGMENT during the course of the inquiry, A-1 gave explanation that the said currency notes were given to him by his nephew, Nilesh alias Nilu Shivkumar Varma (Soni) (A-2). It was also explained by A-1 that he needed money for the purpose of marriage of his daughter and, therefore, he took loan from a Bank at Indore. The said bank sanctioned loan of Rs.25,000/- and he received the said amount of Rs.25,000/- in the currency notes of Rs.500 denomination. The said currency notes of Rs.500 denomination were exchanged with the currency notes of Rs.1,000 denomination from his nephew (A-2) and thereafter A-1 came to Ahmedabad and presented the currency notes of Rs.20,000/- in the denomination of Rs.1,000 for depositing the amount in his SB Account with Bank of Baroda, Rakhial Branch, Ahmedabad. During the course of further inquiry, A-2 was contacted at Indore on his Mobile No.09826451380 by P.W.2, Paresh Sharma, cashier of Bank of Baroda, Rakhial Branch, Ahmedabad, from his telephone. Reverting back, A-2 contacted P.W.2, Paresh Sharma from his same mobile phone CR.A/1298/2006 6/62 JUDGMENT and talked for 173 seconds and during the conversion, prima facie, it was divulged that A-2 was also conspired with A-1 in the said scam. 2.3. Thereafter the complaint was registered before P.W.7, A.R. Patel, PSI, Rakhial Police Station, where it was registered vide CR No.I-55 of 2004 against A-1 and A-2 for commission of the offences punishable under Sections 489B and 489C IPC read with Section 34 IPC, which is on record at Ex.12. 2.4. Pursuant to the registration of the complaint, investigation was started by P.W.7, AR Patel, PSI, Rakhial Police station. During the course of investigation, he arrested A-1 and recorded statement of witnesses, recovered the pass book, pay-in-slip filled up by A-1 and the currency notes of Rs.20,000 in the denomination of Rs.1,000 presented by A-1 for depositing in his SB Account with Bank of Baroda, Rakhial Branch, Ahmedabad, after drawing a panchnama. Thereafter further statement of the P.W.1, CR.A/1298/2006 7/62 JUDGMENT Ramanbhai Ishwarbhai Makwana, Branch Manager, Bank of Baroda, Rakhial Branch and other officers of the said bank were recorded. During the course of investigation, it was also disclosed by A-1 that two currency notes of Rs.1,000 denomination were given to J.J. Prajapati for exchange, therefore, P.W.7, A.R. Patel, PSI, Rakhial Police Station recorded statement of J.J. Prajapati. A-1 also told that 3 currency notes of Rs.1,000 denomination were given to Annapurna Trading Company. P.W.7, A.R. Patel, PSI, Rakhial Police Station, therefore, recorded statement of A.C. Prajapati, the owner of Annapurna Trading Company. Thereafter he obtained the remand of A-1 for seven days and after that the investigation was transferred to P.W.9, D.D. Sodha. 2.5. After taking over the investigation, P.W.9, D.D. Sodha obtained necessary permission from his higher-ups for interrogating A-2 of Indore and with the help of local police officers at Indore, P.W.9, D.D. Sodha called A-2 in Mahalganj police station, Indore, and CR.A/1298/2006 8/62 JUDGMENT interrogated him. During the course of interrogation, P.W.9, D.D. Sodha got information that A-2 was also possessing similar fake currency notes. Therefore he raided the premises of A-2 in presence of panchas and during the raid, after drawing discovery panchnama, three currency notes of Rs.1,000 denomination were recovered from the steel cup-board from the premises of A-2. He also recovered the mobile phone of A-2 after drawing the panchnama. During the course of investigation, it was found that the series of the currency notes which were found from A-1 and A-2 is the same. He arrested A-2 and brought him to Rakhial Police Station. He thereafter sent the report to Metropolitan Magistrate's Court, Ahmedabad to add Section 120B. During the course of further investigation, A-2 stated that he procured the fake currency notes from Devendrasingh alias Sweety Harnamsingh Davar (Punjabi) (A-3). Therefore, he obtained necessary permission from his higher officer for going to Indore again and he went to Indore along with A-2. On reaching Indore, he inquired about CR.A/1298/2006 9/62 JUDGMENT A-3. During the course of discussion with the S.T.F. Officer, Indore, it was revealed that A-3 was also arrested in connection with another offence and got information that A-3 was to come opp. Bombay Hospital on Devas Highway and, therefore, he kept a watch there and on arrival of A-3, he was intercepted and arrested and his person was searched. During the search of the person of A-3, seven currency notes of Rs.1,000 denomination were found. On verifying the same, it was found that they were also fake. Therefore those seven fake currency notes were also recovered in presence of panchas and A-3 was brought to Ahmedabad. Thereafter he sent the currency notes recovered from A-1, A-2 and A-3 to FSL, Gandhinagar for analysis. On receipt of the FSL report certifying that the currency notes recovered from the accused persons were fake and as sufficient incriminating evidence was found against all the three accused persons, they were charge-sheeted before the learned Metropolitan Magistrate's Court, Ahmedabad, for commission of the offences punishable under Sections 489B and CR.A/1298/2006 10/62 JUDGMENT 489C read with Section 34 and Section 120B IPC. 2.6. As the offences with which the accused persons were charged are exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to City Sessions Court, Ahmedabad. 2.7. On committal, the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, to whom the case was made over for trial, framed the charge against the accused persons for commission of the offences punishable under Sections 489B and 489C read with Section 34 and Section 120B IPC. The charge was read over and explained to the accused. The accused persons pleaded not guilty to the charge framed against them and claimed to be tried. Thereupon they were tried by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, in Sessions Case No.6 of 2005. 2.8. To prove the culpability of the accused CR.A/1298/2006 11/62 JUDGMENT persons, the prosecution has examined in all 13 witnesses and relied upon their oral testimonies, the details of which are given in paragraph 2 of the impugned judgment and order. They are as under: P.W. No. Name Status Ex. No. Page Nos. 1 Ramanbhai Ishwarbhai Makwana Complain- ant 11 4-21 2 Paresh Sharma Chief cashier 15 24-30 3 Mahendrabhai Amarsinh Lodha Head cashier 17 31-35 4 Pradipbhai Bansilal Kansara Panch 19 36-39 5 Purshottamdas Shankerlalji Tandon Panch 22 42-44 6 Rameshbhai Motilal Malaviya Panch 24 49-51 7 Arvindbhai Ravjibhai Patel I.O. 26 55-61 8 Jayantibhai Jethabhai Prajapati Witness 31 62-63 9 Digvijaysinh Devisinh Sodha I.O. 33 64-81 10 Vinod Joitaram Choudhari I.O. 60 105- 111 11 Sanjeev Devidas Mulle P.S.I. Indore 78 138- 143 12 Arunbhai Kamlakar Thakre Witness 82 144- 147 13 Dilip Shrinivas Mutali Witness 88 152- 154 CR.A/1298/2006 12/62 JUDGMENT 2.9. To prove the charge levelled against the accused persons, the prosecution has also produced number of documents and relied upon the contents of the same, such as, complaint, panchnama, FSL report, various reports made to higher up police officers by the investigating officers, yadi sent to Indore police station, computer sheet of mobile phone of A-2, the relevance of which for deciding these appeals will be discussed hereinafter in this judgment at the appropriate time. 2.10. After recording of the evidence of the prosecution witnesses was over, the learned trial Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code. In their further statement they denied the case of the prosecution in toto. They neither led any CR.A/1298/2006 13/62 JUDGMENT evidence nor examined any witness to support their defence. 2.11. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has recorded the finding in para 25 of the impugned judgment and order holding that the prosecution has been able to establish the complicity of the accused persons for commission of the offences as per the charge. It has also been held by the trial court that notwithstanding the knowledge A-1 had that the 20 currency notes of Rs.1,000 denomination he had with him were fake, he tried to deposit the same in his S.B. Account with the bank and thereby tried to traffic in or used as genuine. It has also been held that A-1 has obtained the said fake currency notes from A-2 and A-2 was found with 3 fake currency notes of Rs.1,000 denomination from Indore and A-3 was also found with seven fake currency notes of Rs.1,000 denomination from Indore. All the fake currency notes which were found from all the accused persons were recovered CR.A/1298/2006 14/62 JUDGMENT by drawing panchnama. The series number of all the fake currency notes recovered from the accused persons was the same and, therefore, all the accused had the common intention and they hatched up conspiracy to traffic in or use the counterfeit currency notes as genuine currency notes. On the aforesaid findings, the trial court has convicted all the three accused persons for commission of the offences punishable under Sections 489B and 489C read with Sections 34 and 120B IPC and sentenced them for the same about which reference is made in earlier paragraphs of this judgment, giving rise to these three appeals, being Criminal Appeal No. 1298 of 2006 filed by A-1, Criminal Appeal No.1364 of 2006 filed by A-2 and Criminal Appeal No. 1412 of 2006 filed by A-3. 3. Ms. Sadhna Sagar, learned advocate for A-1 and Mr. Yogesh S. Lakhani, learned advocate for A-2 and A-3, have submitted that the trial Court has committed a grave error in appreciating the facts and the evidence on record and has wrongly CR.A/1298/2006 15/62 JUDGMENT convicted the accused for the offences with which they are charged. According to them, in the entire length and breadth of the prosecution evidence, ingredients to prove the commission of the offences under Sections 489B and 489C are not satisfied because none of the accused had the knowledge that the currency notes possessed by them were fake. The evidences adduced by the prosecution do not even remotely suggest that the accused had any knowledge that they were possessing fake currency notes and not genuine currency notes. Evidence in this regard is totally silent. 3.1. According to Ms. Sagar, learned advocate for A-1, the conduct of A-1 is also very relevant. When the bank officers alleged that the currency notes presented by him were fake, he did not try to withdraw the same or ran away from the bank but, on the contrary, he gave name of A-2 from whom he exchanged the currency notes of Rs.1,000 denomination, which according to the prosecution, are fake currency notes, by giving CR.A/1298/2006 16/62 JUDGMENT currency notes of Rs.500 denomination. If there was any mens-rea on his part, he would have immediately ran away from the bank and would not have given name of A-2. The trial Court has miserably failed to appreciate this aspect. The conduct of A-1 was such that there was no mens- rea and he had no knowledge that the 20 currency notes of Rs.1,000 denomination presented by him in the bank for depositing in his S.B. Account are fake. Even the evidence of the bank officers also suggest that a bare look at those currency notes of Rs.1,000 presented by A-1 the currency notes do not reflect that they are fake currency notes but if the currency notes are examined by the expert then only one can come to the definite conclusion that those notes are fake. 3.2. Mr. Yogesh Lakhani, learned advocate for A-2 and A-3, has submitted that merely because of recovery of 3 currency notes of Rs.1,000 denomination from A-2, the allegation that the currency notes of Rs.1,000 denomination recovered from A-2 are fake and it cannot be said that the CR.A/1298/2006 17/62 JUDGMENT charge against A-2 was proved for following reasons: (i) The Panch witness – Purshottam Tandon has not supported the case of the prosecution and the panchnama under which the recovery of 3 alleged notes was shown is not proved on record. (ii)The second panch witness, Mahesh Joshi, appears not to have been examined in the case to prove the said panchnama. (iii) The prosecution though tried to project its case that on 3.5.2004 A-1 had a telephonic talk from the mobile phone of the cashier of the bank named Paresh Sharma, at Indore, the panchnama of the alleged recovery of 3 currency notes of Rs.1,000 denomination from A-2 is prepared on 7.5.2004 i.e., after four days of lodgment of FIR and it is not possible to believe that though A-2 was made aware about A-1 having been caught at Ahmedabad with fake currency notes CR.A/1298/2006 18/62 JUDGMENT he would keep 3 currency notes of Rs.1,000 denomination in his house with the knowledge or having reason to believe that the 3 currency notes are fake. (iv)The prosecution has miserably failed to show anything on record except the so-called recovery panchnama, which is not proved on record, to point out that A-2 was having possession of 3 currency notes of Rs.1,000 denomination which are found to be fake and further that he had any knowledge that such notes are fake. 3.3. Mr. Lakhani, learned advocate for A-2 and A-3, has submitted that so far as A-3 is concerned, the allegation that from him 7 currency notes of Rs.1,000 denomination were found cannot be said to have been proved for the following reasons: (i) The recovery panchnama drawn on 16.5.2004 to the effect that 7 fake currency notes of Rs.1,000 were recovered from A-3 is also not proved on CR.A/1298/2006 19/62 JUDGMENT record inasmuch as the first panch witness Ramesh Malaviya has not supported the case of the prosecution and the second panch witness Suresh Dayaram is not examined in the case. (ii) The alleged recovery of 7 currency notes of Rs.1,000 denomination from A-3 would not in any way, ipso facto, prove the possession of 7 currency notes from A-3 and that too attributing any knowledge or reason to believe that A-3 possessed such notes knowing them to be fake when panchnama of recovery is not proved on record and when there is no other evidence available to prima facie show any knowledge on the part of A- 3. (iii) It is also high-lighted by him that the prosecuting agency has deliberately and conveniently not investigated the case any further if it wanted to allege against A-2 and A- 3 that they had possessed those currency notes with any knowledge that they have either received the same from a particular source on purchase or CR.A/1298/2006 20/62 JUDGMENT otherwise and further that how and where such currency notes have been counterfeited, manufactured and prepared and also with the help of the instruments and machineries. According to him, the prosecuting agency has not shown anything on record that it has gone even a little deep into investigating the case to go to the root of the case but instead by just preparing two recovery panchnamas which are not proved on record that the charge sheet is filed against A-2 and A-3 improperly. 3.4. From the aforesaid facts and circumstances, according to him, it becomes clear that none of the offences under Sections 489B or 489C IPC can be said to have been proved against A-2 and A-3. 3.5. It is also emphasized by him that the prosecuting agency has also miserably failed to prove on record any evidence so as to link A-2 and A-3 either with A-1 or any other accused for invoking Section 34 or Section 120B IPC. CR.A/1298/2006 21/62 JUDGMENT Neither the common intention nor conspiracy is brought on record or is proved with even scanty evidence on record so as to book A-2 and A-3 for the same. It is also asserted by him that the evidence of the bank officers as well as the police officers who investigated the case create doubt about genuineness of the whole prosecution case made out against the accused persons. 3.6. On the aforesaid premises, it is submitted by the learned advocates appearing for the accused persons that the prosecution has failed to prove the charge levelled against the accused for commission of the offences under Sections 489B and 489C read with Section 34 and Section 120B IPC. There is no evidence on record to suggest that there was any knowledge to the accused persons that the currency notes of Rs.1,000 which they were possessing were fake and therefore ingredients of Section 489B and Section 489C are not established. The investigating agency has not found out the root with regard to who has manufactured or who has prepared the said CR.A/1298/2006 22/62 JUDGMENT fake currency notes. Therefore, the impugned judgment and order is based on “no evidence”. Therefore, the same deserves to be quashed and set aside by allowing all these appeals. They, therefore, urged to allow the appeals and thereby all the accused may be acquitted of the offences with which they are charged. 3.7. In support of the aforesaid submissions, learned advocates for the accused persons have relied upon the following judgments of the Supreme Court as well as other High Courts: (i) M. Mammutti v. State of Karnataka, AIR 1979 SC 1705, (ii)T.J. Mohan v. State, (Madras High Court), 1995 (3) Crimes, 842, (iii) Hamid Ali and another v. The State, AIR 1961, Tripura, 46, (iv) Madan Lal Sarma v. The State, 1990 Cr.LJ (Calcutta), 215 and (v) Umashanker v. State of Chhattisgarh, AIR 2001 SC 3074. CR.A/1298/2006 23/62 JUDGMENT 3.8. In the alternative submission, Ms. Sagar, learned advocate for A-1 and Mr. Lakhani, learned advocate for A-2 and A-3, have submitted that if this Court comes to the conclusion that the prosecution has established the charge levelled against the accused persons, so far as quantum of punishment is concerned, leniency may be shown upon the accused persons looking to the number of currency notes which were found from them. They have also produced affidavit sworn by Vimlaben, wife of Omprakash Soni (A-1) and Kanhaiyalal Shrihari Soni, paternal uncle (Fua) of Nilesh alias Nilu Shivkumar Varma (Soni) (A-2) wherein the mitigating circumstances for imposing less sentence on A-1 and A-2 have been narrated. Mr. Lakhani, learned advocate for A-2 and A-3, has submitted that so far as A-3 is concerned, no affidavit is produced on record. However, looking to the number of currency notes recovered from him, leniency may be shown to him also so far as quantum of sentence is concerned. They submitted that all the accused have undergone almost three CR.A/1298/2006 24/62 JUDGMENT years' imprisonment so far, therefore, the sentence undergone by them may be treated as substantive sentence for commission of the offences alleged against them and they may be set at liberty and the order of sentence may be suitably modified to the said extent. They, therefore, urged to pass appropriate order with regard to quantum of punishment, taking a liberal and lenient view in the matter. 4. In counter submission, Mr. K.T. Dave, learned APP, submitted that there is voluminous evidence against the accused persons that they have committed the offences under sections 489B and 489C IPC. So far as A-1 is concerned, according to him, he made effort to deposit fake currency notes of Rs.20,000 of the denomination of Rs.1,000 in his S.B. Account with Bank of Baroda, Rakhial Branch, knowing fully well that they were fake currency notes and he was caught by bank officers. He further submitted that as per the information supplied by A-1, A-1 has exchanged the said currency notes from A-2 who was also CR.A/1298/2006 25/62 JUDGMENT found with three fake currency notes of Rs.1,000 denomination at his residence at Indore when his house was raided by the investigating officer. It is also asserted by him that A-2 has given information to the investigating officer that all the currency notes which were found from him as well as from A-1 were supplied