Dipakbhai Jagdishchndra Patel vs The State Of Gujarat

denomination were found and PSI Shri NB Jadeja caught the accused no.2 and while asking his name before the panchas, he stated his name as Salimbhai Mahemudbhai Shaikh, residing at inside Shahalam Darwaja, Rasulibad society, Ahmedabad and during the search 43 notes of Saudi Arabian riyal currency of Rs.500/- denomination were found and police constable Shri Bhagwatsinh Madarsinh buckle No. 8927 caught the accused no.3 and while asking his name and address, he stated his name is Usmangani Mahamadbhai Malek residing at Musamiyani Chali, Rasulabad Shahalam, Ahmedabad and from his hand, 2 nos. Saudi Arabian Riyal currency notes of Rs.500/-

Thus, the aforesaid accused no.1 Mahamad Rafik Abdul Hamid Kagde, residing at Savri Hagadi Chawl, Golanji Road, Mumbai-15, accused no.2 Salimbhai Mahemudbhai Shaikha, residing at inside Shahalam Darwaja, Rasulabad Society, Ahmedabad, accused no.3 Usmangani Mahamadbhai Malek residing at Shahalam, Ahmedabad and accused no.4 Dipak Jagdish Patel, residing at B-2 Aashiyana Flat, Nava Wadaj, Ahmedabad in collusion with each other, showing the fake Saudi Arebiya currency Riyal of Rs.500/- denomination as original and keeping such notes in their possession to sale such fake currency notes as original with fair price, the accused have committed the offence punishable under Section 489B, C of the Indian Penal Code and this is my legal 5 complaint against these accused persons. The panchas, police persons and whatever will be come out in the investigation are my witnesses and the accused no.1,2,3 are arrested today ie, on 10.04.1996 at 17.00 o’clock.”

4. Following investigation, the chargesheet came to be filed against the appellant inter alia:

Further it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the appellant in his examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence 19 passed on the appellant under Sections 489-B and 489-C IPC and acquit him of the said charges (see: M. Mammutti v. State of Karnataka [(1979) 4 SCC 723 :

All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial.

The next question however is, as to whether the statement given by a person who stands in the shoes of an accused and who gives a statement, whether the statement is admissible in law? It is here that Section 162 of the Code comes into play:

50. Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused, we would find that the mandate of the law requires us to free the appellant from being proceeded against. Accordingly, we allow the appeal and the petition filed under Section 482 of the Cr.PC. The Order impugned passed by the Sessions Judge framing the charge against the appellant 66 will stand set aside and the appellant will stand discharged.

APRIL 24, 2019.