1. The instant criminal appeal is directed against the judgment and order of conviction dated 28.04.2011 and 29.04.2011 passed by the learned Additional Sessions Judge, Fast Track Court 1, Dinhata, Coochbehar in Sessions Trial No. 5(IX)/2010 arising out of Sessions Case No. 177/2010 convicting the appellant under Sections 489B and 489C of the Indian Penal Code, 1860.
2. By the impugned Judgment the appellant was found guilty under Section 489B and 489C of the Penal Code and sentenced to suffer 3 years and 3 months rigorous imprisonment under Section 489Bof the IPC and 3 years and 3 months under Section 489C of the IPC, to run concurrently and with fine of Rs.3000/- and fine of Rs.3000/- with a default clause.
3. The prosecution case in brief is that on 30.08.2009, while the P.W. 1, ASI Gopal Chandra Mondal, was on mobile duty, he received information from sources, that a fake currency transaction was taking place in the midnight at Sahebganj Bazar at Dinhata in Coochbehar district.
4. The said P.W. 1, thereupon, went to Sahebganj Bazar at Dinhata and found the appellant, Jagannath Saha @ Rinku detained by local persons who complained that, the appellant-accused transacted a fake currency while paying the price of the jute that he bought from P.W. 4, Sanjoy Sarkar on the Friday immediately before.
5. The said PW 1 conducted a physical search of the body of the appellant and recovered 5 notes vide no. 5BS - 661192, 5BS - 670120, 5BS - 670112, 5BS - 669266 and 5AH - 583001 of denomination of Rs.500/- each, allegedly in Indian Currency and the said notes were seized, in presence of the P.W. 4 and 5. The said notes were fake according to the PW 1.
6. A seizure list was stated to have been prepared whereupon the appellant was arrested, and brought from the Sahebganj Bazar to the local B.S.F. Camp and then to Dinhata Police Station at about 3/3:30 hours in the night on 30/31.08.2009.
7. The F.I.R. was registered at about 12.20 P.M. on 31.08.2009. The accused was produced before the learned Magistrate concerned only on 01.09.2009 was ordered to be kept in Judicial Custody of 15 days. The police had prayed for 3 days of Police Custody which was declined since the I.O. was not present in Court, nor was the Case Diary produced.
8. The charge was framed on 10.09.2010.The prosecution examined the following witnesses:-
PW 1 - ASI, Gopal Chandra Mondal.
PW 2 - Manju Saha, resident of the area and a cultivator.
PW 3 - Shyamal Das, resident of the area and a cultivator.
PW 4 - Sanjay Sarkar, resident of the area and a broker/businessman (Thikadar).
PW 5 - Dilip Kumar Roy, resident and a cultivator.
PW 6 - Nirmal Roy, resident of the area and a cultivator.
PW 7 - Tapas Adhikari, resident and a cultivator.
PW 8 - S.I. Hemant Kumar Sharma, the Investigating Officer.
9. P.W. 1, the A.S.I., Gopal Ch. Mondal, the complainant deposed that he was posted as duty officer in respect of the above incident and in the midnight of 30th / 31st August, 2009 one person was detained by the local villagers. He immediately rushed to the spot at Sahebganj Bazar and found the appellant detained by local people. After that he conducted a search of the body of the appellant. He further stated that 5 such fake currency notes were recovered from the pocket of appellant by the Police. P.W. 1 further deposed that he interrogated the appellant whereupon he was informed that the appellant procured the notes from his brother Subrata Saha @ Tinku for using the same as genuine. The seizure list, according to him, was prepared in accordance with law. The minor irregularities in delay lodging of the F.I.R. cannot be fatal to a proceeding under Section 489 of the Penal Code. He further stated that he identified in Court the said notes that bore the signature of appellant on the reverse side. He deposed that he arrested the appellant at about 00:30 A.M. on that day and registered an FIR at the Dinhata Police Station at 2:00 PM. The appellant was produced before the Magistrate on the next date on 01.09.2009. He stated that the seizure list was prepared on the place of occurrence and that he did not seal or label the seized notes.
10. PW 2, Manju Saha who is a cultivator, turned hostile during examination by the prosecution at the trial-stage. She denied any personal knowledge of the incident. She had heard that someone was apprehended a year back for using forged and counterfeit notes to pay for jute bought at the Bazar. She had gone to Dinhata Police Station for her personal work when the police asked her to sign on some blank papers but she refused. She was not interrogated by the police nor gave any statement. She deposed in cross-examination, that the bazar closes at 7:00 pm.
11. All cultivators bring their jute to the market to sell it to brokers like PW 3 who in-turn sell it to persons like the appellant.
12. PW 3 Shyamal Das was another cultivator. The appellant and his brother Tinku are known to him. They are his neighbours. He sold jute to them in the year 2009for which price was paid. He specifically mentioned that the bazar remains operative on every Friday and Sunday. He had bought the jute on Friday and sold it to the appellant-accused and another person at Dinhata, who in turn paid him the price for the goods instantly. He later detected that one of the 500/- notes was forged and confronted the appellant-accused on Sunday, who denied the same. He thereafter informed his fellow jute-sellers who then informed the police. He did not give any statement to the police. He denied having told the police that five fake 500 Indian currency notes were given by the appellant to him. He also denied that he asked the appellant to replace the give notes to valid currency notes. He admitted that the appellant told him that he got the currency notes from his brother Tinku. He deposed that the appellant was arrested on Sunday, the 31st of August, 2009 and firstly taken to the local B.S.F. Camp and arrested and thereafter taken to Dinhata P.S. He was declared hostile by the prosecution.
13. PW 4, Sanjay Sarkar, was a businessman and was acting as a broker. He knew the appellant and his brother. He had no personal knowledge of the incident. He was declared hostile by the prosecution.
14. He stated that when he visited Dinhata Police Station for personal work when he was asked to sign on a blank paper by the police that was later converted into a seizure list. In respect of one forged 500 rupee note, vide no. 5AH583001; exhibited as Exbt. 1/1, he identified his signature thereon. The police did not interrogate him or record any statement.
15. He denied having stated anything to the police as regards the incident or the arrest of the appellant and his brother. He also denied that he signed the seizure list after going through the contents. He further stated that while signing a blank paper the police did not inform him from where and from whom one fake currency note of 500 rupee was recovered. He stated that he was accompanied to the Dinhata P.S. by P.W. 5, Dilip Kumar Roy, Ex-Gram Panchayat Pradhan.
16. PW 5, Dilip Kumar Roy is a cultivator and Ex-Gram Panchayat Pradhan. He had no personal knowledge of the incident. He went to Dinhata P.S. on 31st August, 2009 when on the instruction of the police, he signed a blank paper that was subsequently converted into a seizure list. He did not give any statement to the police. He was declared hostile by the prosecution. He denied any knowledge of the incident or giving of fake notes by the appellant and his brother Subrata Saha @ Tinku to Shyamal Das (PW 3).
17. PW 6, Nirmal Roy is another cultivator who knew the appellant and his brother. He had no personal knowledge of the incident. He did not give any statement to the police. He was declared hostile by the prosecution. In defence cross examination he stated that his residence is 4-5 kms away from the place of occurrence.
18. PW 7, Tapas Adhikari is a cultivator. He also had no personal knowledge of the incident and did not give any statement to the police. He was declared hostile. In defence cross examination he further states that his residence is 7 kms away from the place of occurrence.
19. PW 8, SI Hemant Kr. Sharma is the Investigating Officer. He identified the FIR signed by Kartik Bhattacharya, S.I. of Police. He took up the investigation of the case under Section 489B and 489C of the IPC. He collected the seized articles along with seizure list and visited the place of occurrence and prepared a sketch map and index. He also stated that he recorded the statements of witnesses under Section 161 of the Cr.P.C. He examined the seizure witnesses and recorded their statements under Section 161 and also examined the accused persons. He took them in three days of police custody but nothing was recovered from them. He sent the seized forged notes to the Government Press at Nasik to seek an expert opinion and obtained the same. The expert opinion report of the Government Press at Nasik was exhibited. He further stated that he examined a constable who went to Nasik and recorded his statement. He reiterated that Manju Saha PW 2 was present when the appellant was arrested for trying to pay PW 3 with five forged 500 rupee notes. He also asserted that Shyamal Das (PW-3) told him that on 31st August, 2009 he sold jute to the appellant and received five fake notes of 500 rupees each. He stated that Shyamal Das told him that he asked the appellant to replace the same to genuine notes. He asserted that Sanjay Sarkar (PW-3) told him that the appellant paid the price of jute to Shyamal Das PW 3 with five fake currency notes. He also asserted that Dilip Kumar Roy (PW 5) had informed him that the appellant purchased jute from Shyamal Das and paid the same with five fake 500 rupee notes. On interrogation he came to know from the appellant that the latter received the fake notes from his brother, Tinku. He also asserted that Nirmal Roy (PW-4) and Tapas Adhikari (PW-7) also told him of the incident just like PW 2, 3 and 4, had told him. He identified the seized fake currency notes on which he had signed. He had no personal knowledge of the seizure list or the factum of the seizure. He re-arrested the appellant at the police station but could not say when and how the appellant was originally arrested. In defence cross examination he stated further he has not seized the notes in question.
20. In the examination under Section 313 the appellant admitted that he purchased jute from Shyamal Das (PW-3) but did not pay him with fake notes. He was also confronted that he had asked the appellant to replace the fake notes with genuine ones. He said that he was innocent. He admitted being detained by the local people at about 00:50 hrs., on 31st August, 2009 but stated he was innocent. On being asked that after he made payment for the jute in fake Indian currency, the PW 1 searched him and found five fake Indian currency notes which were seized in the presence of witnesses Sanjay Sarkar, Dilip Kumar Roy and that the appellant admitted that he obtained the fake notes from his brother Tinku. He replied that no fake currency was recovered from his pocket and that no seizure list was prepared in his presence on the date and time. He denied having said that he procured the fake Indian currency from his brother and stated that he is innocent.
21. The Trial Judge found that in the year 2009 PW 3 Shyamal Das sold jute to the appellant and the price of jute was paid. One of the notes of denomination of Rs.500/- was found to be fake. The Trial Judge believed the evidence of PW 1 that he arrived at the place of occurrence was told by Shyamal Das of the incident and that the price of the jute paid with one fake currency note. The Trail Judge also found that PW 1 upon searching the appellant in person found five other fake 500 rupee notes on the person of the appellant. The said notes were exhibited and the signature of the appellant on the said notes was identified and exhibited. One note also bore the signature of PW 4 Sanjay Sarkar and PW 5 Dilip Kumar Roy. The seizure list was also exhibited and the signature of the appellant thereto and that of the PW 4 and 5 were identified. He, however, recorded that PW 4 and 5 had signed on blank paper which was subsequently converted in seizure list. The same was mere irregularity according to the Trial Judge. He relied upon the prosecution testimony of PW 8 since the seized notes bore the signatures of PW 4 and 5. The Court also noted that the FIR was registered nearly 10 hrs. after the arrest of the appellant and his brother. Reliance was heavily placed on the evidence of PW 1 and 8. The possession of the fake currency notes on the person of the appellant was also proved.
22. On the question of mens rea of the appellant in trafficking and possession of the said fake currency notes despite knowledge that they were fake, the Trial Court held that since the defence has not stated that the accused was not aware of the fakeness/counterfeit of the said currency notes, the Trial Judge held that the accused had knowledge and was fully aware that the appellant was in possession of fake notes and hence, mens rea was established.
23. Based on such finding the Court below found the appellant guilty of offences under Section 489Band 489Cof the I.P.C. and convicted him for 3 years and 3 months of rigorous imprisonment and a fine of Rs.3000/- for offence under Section 489B and another 3 years and 3 months of imprisonment and a fine of Rs.3000/- for offence under Section 489C of the IPC. The order of sentences was to run concurrently.
24. Learned Counsel for the appellant would argue that the entire case of the prosecution and the finding of the Trial Judge was based on the evidence of PW 1 and PW 8 only since PW 2 to PW 7 had turned hostile. There is some substance in the argument of the appellant. There are too many irregularities in the conduct of the investigation. Firstly whether the PW 1 acted on a tip off from sources and visited the spot or whether he acted on being informed by the other traders at the Sahebganj market. It is difficult to believe the reasons for the accused to be detained at 12:30 AM, in the morning, by locals, when the bazar closes at 7:00 PM, the previous day. The reasons for the same have not come on record or elicited from the evidence of PW 1 to PW 8. There are, however, mere irregularities and cannot by themselves be fatal to the case of the prosecution.
25. The appellant would next argue that since Shyamal Das PW 3 did not lodge complaint despite receiving one forged 500 rupee note and there was no independent witness to prove the transaction of sale of jute no offence under Section 489B of trafficking of counterfeit notes could have been laid much less proved against the appellant. This Court, however, finds that PW 3 in no uncertain terms narrated the entire transaction of sale of jute between himself and the appellant. PW 4 also admitted that one of the currency notes having a denomination of Rs.500 was fake. The question, therefore, emerges as to why PW 3 did not lodge a formal complaint with the police unless he believed that the giving of one fake currency note was unintentional and without mala fides.
26. But P.W. 1 has stated that on his arrival with his team at the place of occurrence, i.e., Sahebganj Bazar in Dinhata, Coochbehar, he found the appellant-accused in custody of the locals, who complained that, the appellant-accused had transacted a fake currency while paying the price of the jute that he bought from P.W. 3, viz., Sanjoy Sarkar.
27. On searching the body of the appellant P.W. 1 found 5 currency notes vide no. 5BS - 661192, 5BS - 670120, 5BS - 670112, 5BS - 669266 and 5AH - 583001 and the said notes were seized, in presence of the P.W. 4 and 5; who later on turned hostile during evidence and have deposed that:-
(i) They were summoned to the P.S., where they were asked by the police about a recovery of note/notes
(ii) They were made to sign a blank paper which later on got scripted into a seizure list.
28. It is, therefore, worth noting and clearly depicted that, although the two seizure witnesses have only identified the signatures on the seizure list, they have not denied that they were present at the place of occurrence. While it may be true that the seizure lists were prepared subsequently, the seizure of the fake notes and the signatures on them by the PW 3 and 4 had taken place at the place of occurrence. There is no evidence contrary to this. Section 489B of the Penal Code reads as follows:
"Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency- note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with 2[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
29. Section 489C of the IPC reads as follows:
"Possession of forged or counterfeit currency-notes or bank-notes.-- Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
30. This Court is of the view that the incident of sale of jute and receipt of one fake currency note by PW 3 has established the offence of trafficking under Section 489B. The possession of the fake currency notes and recovery thereof from the appellant has also been established under Section 489C. But the mere possession of fake currency notes of even using them to traffic by itself will not constitute the offence under Section 489B and 489C of the IPC. The mens rea to possess and traffic the same needs to be established and determined. It would be useful to refer the dicta laid down by the Hon'ble Supreme Court in this regard; at, delivered on 10th May, 2018in the case of Shabbir Sheikh Vs The State Of Madhya Pradesh, CRA 162 of 2015, Paragraph 9 of the Judgment is set out herein under:
"Apex Court in the case of Uma Shankar Vs. State of Chhattishgarh (2001)9 SCC 642, to submit that Mens rea i.e. (" knowing or having reason to believe the same to be forged or counterfeit") which are the essential ingredients to constitute the offence under Sections 489-B and 489-C have to be proved by the prosecution. A reference has also been made to the judgment passed in the case of M.Mammutti Vs. State of Karnataka (1979)4 SCC 723 in support of their arguments that a mere recovery of currency notes from them would itself not be sufficient to prove the offence where the prosecution has not shown that the appellants had knowledge or reason to believe that the notes were counterfeit and therefore, the conviction in the case of M.Mammutti (supra) was set aside."
31. In the case of Umashanker v. State of Chhattisgarh, reported in(2001) 9 SCC 642 at Paragraph 7 and 8, the Hon'ble Apex Court held as follows:
"7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. 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 banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, 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.
8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that the currency note alleged to have been given to PW 4 was fake, "presumed" such a mens rea. On the date of the incident the appellant was said to be an eighteen-year-old student. On the facts of this case the presumption drawn by the trial court is not warranted under Section 4 of the Evidence Act. 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-Band 489-C are not proved. We, therefore, set aside the conviction and sentence 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 : 1980 SCC (Cri) 170 : AIR 1979 SC 1705] )."
32. In the case of M. Mammutti v. State of Karnataka, reported in (1979) 4 SCC 723, the Hon'ble Apex Court held as follows:
"The appellant has been convicted in this appeal under Sections 489-B and 489-C and has been sentenced to RI for one year and to RI for six months respectively and fine of Rs 500. The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupee note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub-Inspector of Police and on search of the Appellant 99 two rupee notes were recovered. The appellant in his statement under Section 342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs 390. These currency notes have been given to him by the purchaser. He also said that he did not know that these currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under Section 342 CrPC. The High Court has affirmed the judgment of the learned Sessions Judge on the ground that in his statement under Section 342 made before the committing Court the accused has made a statement different from that made in the Sessions Court and therefore the appellant had reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the committing Court in Ex. P-13 which appears at p. 154 of the paper-book, the appellant has stuck to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs 390 in two rupee notes. We are not able to find any inconsistency between the answer given by the accused in his statement under Section 342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him."
33. It is now settled that from the aforesaid Umashankar and M. Mammutti decisions (supra) that mens rea cannot be presumed. However, what needs to be determined is as to whether mens rea can be ascertained from the evidence on record.
34. In the Shabbir Sheikh case (supra),at Para 12 the provisions contained in Sections 106 and 114(h)of the Evidence Act have been referred to. The relevant paragraph is set out hereinunder:
"Before proceeding further we would like to reproduce the provisions contained in Sections 106 and 114(h) of the Evidence Act, they read as under:
"Section 106 - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The illustration(h) reads as under: "(h) That, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be un-favourable to him.
As to illustration (h) - A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with t
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he matter in relation to which it is asked;" 35. It is evident from the above that it was the duty of the defence, who had the special knowledge as to where he received the fake currency and what was the course of action in which he received the same etc., and such other chain of circumstances that would prove absence of knowledge as to the fakeness of the currency notes. 36. The appellant was confronted in course of examination under 313 that counterfeit notes were found from him and that he had used such note to pay for the jute purchased from PW 3. The appellant did not say that he had no knowledge that the notes were counterfeit. He only said that he was innocent. He said that he received the currency notes from his brother Tinku. It was, therefore, in the exclusive personal knowledge of the appellant-accused whether he knew that the notes were counterfeit or not. Hence, the knowledge of the appellant-accused that the notes were fake can be imputed to the appellant. It must also be seen that the appellant- accused was a regular trader in jute at the Sahebganj market, capable of entering into a contract as per the Indian Contract Act, 1872. He, therefore, must be deemed to know fake note from a genuine one. 37. Counsel for the appellant next argued that the Nasik Press Report that the currency was fake, was not confronted to him and hence incriminatory evidence against him was not shown to him and hence there was a mistrial amounting to gross miscarriage of justice. 38. He relied upon the following decisions. (i) Sharad Birdhichand Sarad Vs. State of Maharastra reported in (1984) 4 SCC 116 at Para 142 (ii) Umashanker Vs. State of Chhattisgarh, reported in (2001) 9 SCC 642 at Para 8. (iii) M. Mammutti Vs. State of Karnataka, reported in (1979) 4 SCC 723. 39. This Court is of the view that the u/s 313 of the Cr.P.C. the appellant was duly confronted with the suggestion that he was found paying for jute with fake currency and also that 5 fake currency notes were recovered from him by the police at the time of his arrest. The same accordingly constitutes sufficient compliance of the Section 313 of Cr.P.C. The mere fact that the Nashik Press Report was not confronted to him under Section 313 cannot mean that the accused was not confronted with incriminating facts and evidences against him. The argument of the counsel for the appellant cannot thus be accepted. 40. For the reasons stated hereinabove this Court is of the view that the impugned judgment cannot be faulted and must be upheld. 41. The appeal must therefore fail and is hereby dismissed. The appellant shall be taken into custody and must serve the sentence awarded to him. 42. There shall, however, be no order as to costs. 43. Urgent Photostat Certified server copy of this judgment, if applied for, be supplied to the parties on urgent basis.