Dasu Mondal vs State of West Bengal

Indrajit Chatterjee, J.—This appeal has been preferred by the present appellant as against the judgement and order of conviction dated 19-01-2015 and 20-01-2015 respectively passed by the then Additional District & Sessions Judge, Fast Track, First Court, Malda, in Sessions Trial No. 34(05) of 2014 arising out of Sessions Case No. 144 of 2014 (Malda P.S. Case No. 360 of 2012 dated 19-09-2012, G.R. Case No. 4413/2012). The learned Trial Court was pleased to convict this appellant in respect of the charge punishable under Section 489C of the I.P.C. and he was acquitted in respect of the charge punishable under Section 489B of the I.P.C. The case before the Trial Court for appreciation of this appeal can be stated in brief thus :

"That on 19-09-2012 at about 6.05 hours S.I. Amarendranath Saha of Malda P.S. received a source information over telephone that a person was moving suspiciously at Aatmile area having huge numbers of Fake Indian Currency Notes (hereinafter called as FICNs). The matter was diarized as per G.D. Entry No. 956 of the same date at 06.5 hours and after that, the Inspector-in-Charge of the said police station accompanied by ASI, Biswajit Guha (P.W.4) and other police constables went to that area which is at a distance of 10 k.m. from the police station and they arrived at the spot at 8.35 hours, the source identified the person whose name could be gathered as Dasu Mondal and in presence of local person, i.e. Fulchand Ghosh (P.W.1) and others the said person was apprehended near the bus stand adjacent to Aatmile Market."

After observing all formalities, search was made in respect of that person of the present appellant and on search 7 pieces of FICNs having denomination of Rs. 1000/- each were found along with two pieces of 100 rupee notes, 5 pieces of 50 rupee notes and 5 pieces of 10 rupee notes. All those were seized as per seizure list marked as Ext. 1. Labelling was also made. The accused-appellant told the raiding party that he collected those FICNs from Gazole area with a view to use the same in local market. The total process as regards seizure etc. continued from 08.35 hours to 09.55 hours. Thereafter, the accused was arrested and was taken to police station.

The FIR was lodged by P.S.I. Bapan Das (P.W.6) of the said police station giving rise to aforesaid P.S. case. The matter was investigated by S.I, Subrata Sarkar (P.W.7).

During the course of investigation, the I.O. of this case prepared a rough sketch map of the place of occurrence and forwarded those FICNs of Rs. 7000/- to the expert and the expert submitted a report dated 13-12-2012 branding those notes to be counterfeit notes. The report was marked as Ext. 6. After completion of investigation, the I.O. submitted charge sheet against the accused in respect of the offences punishable under Sections 489B and 489C of the Indian Penal Code.

The case was committed to the Court of Sessions and ultimately, it was transferred to the present Trial Court. The charge was framed against the accused in respect of the offences punishable under Sections 489B and 489C of I.P.C. to which the accused pleaded not guilty and claimed to be tried.

Before the trial court as many as 7 witnesses were examined and several documentary evidence were proved by the prosecution including the FIR, Expert opinion, Seizure list, etc. The defence did not make out any positive case but from the trend of cross-examination and answers given by the accused in his examination under Section 313 of Cr.P.C. the defence tried to establish that no such incident took place and the accused was implicated falsely in this case. The defence did not examine any witness and also did not file any document before the trial court. I have already stated the result of the trial.

It was further case of the defence as I get from the evidence of P.W.6, i.e. the defacto complainant of the case, that it was suggested to him by the defence that this accused was arrested in connection with Malda P.S. Case No. 293/2012 dated 18-08-2012 on that very date and at that very time but the said witness answered that he was ignorant about that.

The defence did not adduce any oral or documentary evidence to prove his case. At the time of hearing of argument, Mr. Tilak Mitra, learned Advocate appearing for the appellant, argued before this Court that the case as framed by the prosecution cannot be believed as the seizure was not proved by the prosecution to the hilt. He took me to the evidence of P.W.1, i.e. Fulchand Ghosh, who deposed that the notes were to the tune of Rs. 10,000/- (page No. 6 of the paper book). Mr. Mitra submitted that it is the specific case of the prosecution that FICNs were 7000/- in total being seven 1000/- rupee note. He also took me the evidence of P.W.2, one police personnel to show that this witness deposed that the seizure was done at about 6 to 6-30 p.m. and Mr. Mitra submitted that if this witness is believed then, there was no seizure as claimed by the other witnesses in between 9.05 hours to 9.45 hours. On my asking, he submitted that this witness also signed on the seizure list and on scrutiny of the seizure list it appears that Amal Ghosh''s signature was marked as Exhibit 1/2.

He further submitted that P.W.3, another public witness was declared hostile. He attacked the evidence of P.W.4, i.e. Biswajit Guha on the ground that this witness could not say before the court as to whether he stated before the I.O that he signed on the labels pasted on the notes so recovered from the accused at the place of occurrence. He also attacked the evidence of P.W.6, i.e. the de facto complainant, Bapan Das, on the ground of non-pasting of such labels on the FICNs at the spot. He also took me the evidence of I.O. to show that those FICNs were not re-seized and that there was no special identification marks on such notes.

He also submitted that the charge as regard 489C was defectively framed as the possession element was not made specific in that framing of the charge. He also submitted that the Trial Court did not consider whether the accused had knowledge that the notes he was in possession were actually fake or not even though, even if for argument''s sake the prosecution story is believed. Thus, Mr. Mitra thrashed in the argument as regards the knowledge of the accused that those notes were Fake Indian Currency Notes. Alternatively, it was argued by Mr. Mitra for reduction of the substantive sentence from two years to the sentence already undergone.

It was submitted by Mr. Singh, learned Public Prosecutor, on behalf of the State that this accused was arrested on 19th September, 2012 and was released on bail on 05-12-2012 by this court in CRM No. 18148 of 2012 dated 29-11-2012. Thus, this accused remained in custody in connection with this case for a period of 76 days only.

Regarding the argument of Mr. Mitra, it was submitted by Mr. Singh that there is not too much nail in the argument of the defence that there was defect in the charge. He took me to the charge as framed by the learned trial court. It is true that there is defect as regards mentioning of the section i.e., in place of Section 489B, Section 489C of the Indian Penal Code ought to have been typed. Mr. Singh further submitted that Sections 215 and Section 464 of the Code of Criminal Procedure are there to cure even such defects. He submitted that nothing has come on record that the accused by such lapse on the part of the trial court was prejudiced.

As regards the evidence of P.W.1 that he saw Rs. 10,000/- FICNS to be seized by the Investigating Officer. Mr. Singh further submitted that it is true that this witness exaggerated while saying the number of notes but at the same time this witness candidly deposed that he signed on the seizure list, that there was recovery from this accused and that this witness also signed on the labels.

On my asking, Mr. Singh submitted that P.W. 2 and P.W.6 are police men who were in the raiding party and if their evidence is scanned, nothing will come out to show that they contradicted each other to give any favour in favour of the defence. Regarding that Malda P.S. case No. 293/2012 dated 18-8-2012 it was submitted by Mr. Singh that defence did not file any document to show that on that date particularly this accused was arrested even though the burden of proof was suddenly on the accused. He further submitted that in 313 examination the accused did not claim that on that date, he was also arrested in connection with Malda police station case. Thus, Mr. Singh submitted that in such a case labels cannot be pasted on the FICNs as those notes were subject to be scrutinized by expert.

Myself asked Mr. Singh as to the doubt which I got in in the prosecution case by taking him to the FIR as well as the formal FIR that S.I. Amarendran Nath Saha received the telephonic source information at about 06-05 A.M. and the police party reached the spot at about 7.25 hours (A.M.) and ambushed them and the time gap is abnormal.

It was his submission that there was no abnormal time gap. Learned Public Prosecutor admitted that what the source exactly told did not come out before the learned trial court as S.I. Amarendra Nath Saha who received the source information, was not examined by the prosecution and that the G.D. Entry No. 956 dated 19-9-2012 which was diarized at 06.05 hours was not produced by the prosecution. He submitted before this court to consider the fact that the place of occurrence was at a distance of 10 k.m. from the spot. Learned counsel claimed that P.W.1, P.W.2 and P.W.6 cannot be disbelieved to pass an order of acquittal reversing the judgement. He had to admit that in the FIR and the seizure list, there is no mention from which portion of the body of this accused such FICNs were seized that is whether from the pockets of the trousers whether it right pocket or left pocket or whether from the pocket of his shirt. He further submitted that there is nothing on the seizure list or in the complaint which type of wearing apparel the accused was wearing at that point of time.

Thus, I have taken into consideration the argument put forward by the learned counsels appearing on behalf of the parties. This is needless to say that in a criminal trial the burden of proof always lies on the prosecution except some abnormal situation as contemplated under Section 106 of the Evidence Act or regarding some presumption as against the accused as mentioned in Section 111A, 113A, 113B and 114A etc. Thus, the burden was on the prosecution to prove that those FICNs were actually found from the possession of this accused. It is true that defence has failed to produce any document relating Malda P.S. Case 293/2012 dated 18-8-2012. It is also true that the accused did not claim anything in his statement recorded under Section 313 of the Code of Criminal Procedure but still then the prosecution could have produced the said document to convince the trial court that actually the prosecution came in clean hand. The prosecution did not examine a vital witness of this case, namely, the S.I. Amarendranath Saha who allegedly received the first telephone call from one source disclosing the ''would be'' commission of such offence. More unfortunately for the prosecution the G.D. entry allegedly recorded by the S.I. Amarendranath Saha, who was the duty officer at that point of time being Malda G.D. Entry No. 956 dated 19-9-2012 lodged at 06-05 hours was also not produced before the trial court to say what was the information received by the said S.I. It is difficult to coincide that if the information was received at 06.05 hours that one person at a distance 10 k.m. from the police station was moving suspiciously in that area, who was in possession of a huge amount of FICNs for disposal, the same person could be apprehended even after a gap of 2 1/2 (two and half) hours from that very place. This court is not unmindful of the fact that the positive evidence of the prosecution supported by FIR is that the police party went there at 7.25 A.M. and that they ambushed and thereafter when the accused could be apprehended at about 8.25 A.M. This story is difficult to accept even with a grain of salt. It is quite unbelievable that a person who was found by the source at 06.05 A.M. will be still there with such FICNs at about 8.25 A.M. when he was allegedly apprehended. I am not going to swallow this story and the defence must get the benefit of this.

The argument of the defence that the notes were not pasted with the labels is not convincing to this court. No seizing officer can take the risk of pasting of the labels on such FICNs which are to be scrutinized by the expert. It is true that the evidence of P.W.1 is in favour of the prosecution to show that he witnessed the seizure. Nothing has come out from his cross-examination except this fact that actually the police seized 10,000/- FICNs which was in fact 7,000/-. The defects in the charge as argued by the defence cannot be a convincing argument in view of Sections 215 & 464 of the Cr.P.C. As regards the argument of the defence that P.W.2 cannot be believed in view of his evidence that the seizure was made at 6.40 P.M. I am of the view that his evidence must be viewed with suspicion. It was not difficult for the police party to falsely implicate a person in such a case. Only two police witnesses were examined even though there was another police witness who was very much present at the spot being the police driver. More unfortunately for the Sanjit Sinha, Constable No. 511, was also not examined. The prosecution also did not produce the departure diary to prove that actually the raiding party went out of the police station after receiving this source information. No command certificate of any constable was produced to satisfy the court that actually the raiding party went to that place to work out that information.

Regarding the defect in framing of charge as claimed by the appellant, this Court is of the opinion that Sections 215 and 464 of the Cr.P.C. are there to tackle such a situation. Apart from this aspect on plain reading of the evidence on record this Court is satisfied that the accused appellant was not prejudiced by such defect in framing of the charge. Thus, this point is answered against the present appellant.

In view of the discussion so long made this Court is satisfied that the prosecution had failed to prove the charge against the accused for the offence punishable under Section 489C of the Indian Penal Code to the hilt and the accused was entitled to get the benefits on the points as raised by the learned defence counsel as well as by this Court. Thus, the impugned judgment and order of conviction passed by the learned Trial Court respectively on 19.01.2015 and 20.01.2015 is hereby set aside.

Regarding the disposals of the Fake Indian Currency Notes this Court orders that in view of Rule 222(2) of the Criminal Rules and Orders such FICNs be forwarded to the Reserve Bank of India, Kolkata with a brief history of this case. The Inspector-in-Charge is directed to do the needful in this regard and the compliance report be submitted to the learned trial court within a month from the communication of the order by the said court to such officer.

The accused is enjoying bail, he is discharged from his bail bonds.

Let a copy of this judgment be forwarded by the department to the learned trial court along with the lower court records at an early date for necessary action on its part. The original Indian Currency notes be, however, confiscated to the State. The order of disposal of the property as mentioned above will however take its effect after the period of appeal is over.

Certified copy of this judgment, if applied for, be supplied to the parties as per rules.