Liyakat Ali vs State of Rajasthan

Mahesh Chandra Sharma, J.—These four appeals have been filed by the appellants Liyakat Ali. Mehboob Ali, Mohd. Firoz, Anju Ali, Mazhar, and Pooranmal Saini against the judgment dated December 17, 2005 of Special Court (Fake Currency Cases), Jaipur in Sessions Case No. 31 of 2004 whereby the accused appellants Pooranmal, Anju Ali, and Majhar were convicted and sentenced for offence under Sections 489C for 3 Years RI, for Section 489B read with Section 120B IPC five years RI, and fine of Rs. 1,000 each. In default to further undergo one month S.I. Accused appellants Firoz and Mehboob were convicted and sentenced under Sections 489B read with Section 120B IPC for Five Years RI and fine of Rs. 1000/-, in default to suffer one month SI. Accused appellant Liyakat Ali was convicted and sentenced u/s 489A IPC for 10 years RI and fine of Rs. 1,000/-, in default to suffer one month SI, u/s 489B read with Section 120B IPC five years RI, and fine of Rs. 1,000 each, in default to further undergo one month SI, u/s 489C for 3 years RI, and u/s 489D IPC for 10 years RI and fine of Rs. 1,000, in default one month SI. The appellants Anju Ali and Majhar''s sentence was suspended by this Court on January 12, 2006. The sentence of Pooranmal, appellant was suspended on January 17, 2006. The sentence of Mehboob Ali and Mohd. Firoz was suspended by this Court on Feb. 1, 2006. Except appellant Liyakat Ali, all appellants are on bail.

Brief facts of the case are that on January 6, 2004 one Ajit Singh ASI, lodged a written report at Police Station Ramganj, Jaipur to the effect that on that day one Purshottam FC No. 4426 was sent to Jaipur City for searching Pooranmal in case No. 459 of 2003. He was instructed to inform after search about this accused. Purshottam FC informed over telephone that accused Pooranmal is walking in Sanjay Bajar, Ghatgate and he is watching him. On this information ASI Ajit Singh alongwith FC Jai Singh No. 6290, driver Hanuman and one Mahavir Singh ASI went in a Government vehicle Gypsy at Sanjay Bajar where FC Purshottam was found present who informed by indication to ASI Ajit Singh that the person standing ahead the wine shop and wearing black jacket, is Pooran Mal Saini. On this the complainant ASI alongwith his companions reached near that person and asked his name. He told his name to be Pooranmal Saini son of Ramniwas aged 33 years, by Caste Mali R/o Jeevram Ki Dhani, Gudhana Police Station Bagad District Jhunjhunu at present C-5 Bhagirath Colony Police Station Vidhayakpuri, Jaipur. He was interrogated in FIR No. 459 of 2003 for offence under Sections 420 and 406 IPC. On searching him, one mobile phone, telephone diary, PAN Card and Rs. 500 were found with him. On checking 5 currency notes, 3 currency notes were having No. 3 HN 4086''s and 2 currency notes were having No. 9 ST 580755. On suspicion thesa currency notes were thoroughly checked then 3 currency notes were found having similar number of one series and 2 notes were found having similar number of one series. Reserve Bank of India never issued notes having similar number in one series, therefore the currency notes were found to be fake. On enquiry about these currency notes from accused Pooranmal then he accepted the same to be take. The notes were seized by the Police for verification. On receipt of above report a case FIR No. 14 of 2004 for offence under Sections 489C and 120B IPC was registered and investigation commenced. During investigation on enquiry, Pooranmal informed that he received the forged currency notes from Mehboob, Firoz and Ramgopal. On the information of Pooranmal, Mehboob and Firoz were arrested. On the information furnished by Pooranmal Rs 41,900 forged currency notes were seized. Mehboob and Firoz informed that they received the forged notes from one Anju Ali. Anju Ali was also arrested and on his information Rs. 1,75,000 were recovered. On enquiry from Anju All he informed that he was receiving fake currency notes from Majhar. Majhar was arrested and on his information fake currency notes of Rs. 48,220 were recovered from his possession. Majhar told that he was receiving forged currency notes from Liyakat Ali. It was alleged that Liyakat Ali was arrested from his business place at Delhi and fake currency notes of Rs. 2,39,500/- were recovered from him along with some equipments. After completing the investigation, the police filed challan against the accused appellants and one Ramgopal. Charges were framed against appellants Poornmal, Firoz, Mehboob, Anju Ali, Majhar and Ramgopal for offences under Sections 489B read with Section 120B IPC, 489C read with Section 120B IPC and against accused Liyakat Ali for offence under Sections 489A, 489B read with Section 120B IPC, Section 489C and Section 489D IPC. The accused appellants denied the charges and claimed to be tried. The prosecution examined 28 witnesses and got exhibited some documents thereafter examined accused appellants u/s 313 Cr.P.C. In defence three witnesses were examined and got exhibited five documents. After hearing both the sides the learned trial Court convicted and sentenced the accused appellants as indicated above vide judgment dated December 17, 2005. Against this judgment of the trial Court the appellants have filed these four appeals for quashing the judgment of conviction and sentence.

M.S.S. Hora, learned Counsel for the appellants Anju Ali, Majhar and Liyakat Ali, submitted following submissions:

Sections 498A, 489B, 489C and 489D are not applicable and only Section 489E can at most be applied. Section 489 E provides that whoever makes, or causes to be made or uses for any purpose whatsoever, or delivers to any person, any document purporting to be, or in any way resembling or so nearly resembling as to be calculated to deceive any currency note or bank note shall be punished with fine which may extend to one hundred rupees.

The learned Counsel raised the argument about the non sealing and no safety of seized currency notes.

The currency notes were not capable of being used as such and were more in the nature of fancy notes.

The learned Counsel argued that the compliance of Section 100(4) Cr.P.C. was not made in the instant case, which is fatal to prosecution case as set out in 1993(1) Crimes 1055 Ran Singh v. State of Haryana, 1996 Cri.L.R. 389 : RLW 1996 (3) Raj. 145 , Smt. Prem Latta Vs. State of Himachal Pradesh, Prem Lata v. State of H.P. Makes accused to benefit of doubt.

The recovery shown from Delhi from accused persons is highly doubtful due to inconsistencies in evidence.

The learned Counsel submitted that it is a case of false implication of the accused by investigating officer. The accused by investigating officer. The accused made suggestions that the currency notes were in fact photocopied by the police party itself to falsely implicate the accused.

The learned Counsel submitted that the report received from Nasik was not mentioning number of seized currency notes. It is not possible to draw inference of forgery of currency notes as held in State of Raj. v. Rajendra 1999 WLC UC 741 where also accused was acquitted.

The learned Counsel stated that there was no intention of the accused to use genuine counterfeit currency notes. The prosecution has not produced a single witness to state that the accused persons used or intended to use these currency notes. Intention to use the currency notes as genuine constitutes the mens ria of the offence and is an essential ingredient which is not satisfied in the instant case. The learned Counsel stated that no offence u/s 489B and 489C is made out. He relied upon Karunakaran Nadar Vs. State, and Umashanker Vs. State of Chhattisgarh,

The learned Counsel prayed for acquittal of the accused or in the alternative all the appellants have completed about half of their sentence and they may be released on sentence already undergone by them.

Mr. A.K. Gupta, learned Counsel for the appellants Mehboob Ali and Mohd. Firoz and Mr. Vinay Pal Yadav, learned Counsel for the appellant Puranmal Saini reiterated the arguments of Mr. S.S. Hora and further stated that the appellants are in judicial custody and they have completed about half of their sentence and they may be released on sentence already undergone by them.

On the other hand Mr. Pradeep Shrimal, learned Public Prosecutor submitted following written submissions:

The recovered notes from different accused were sent in sealed condition to the Reserve Bank of India, Jaipur Branch. Shyam Singh was examined in this respect as PW-16 and stated that Raman Bhardwaj, ASI sent 1004 notes of different denominations. He in consultation with the officers of the faked notes detection wing of the Bank came to conclusion that all the notes were counterfeit. He sent the report which has been marked as Ex. P.34. These notes were also sent to Indian Security Press, Nasik. They also found the notes as counterfeit and sent the report. The notes bear the seal of the Indian Security Press, Nasik showing that they have been thoroughly examined. The reports are Exhibit P. 46, 47, 48 and 51. Under the provisions of Section 292 Cr.P.C. such reports are admissible and conclusive without examination of the officers of the Indian Security Press, Nasik. The report of the Nasik press as well as the report of the officer of Reserve Bank given the number of the notes examined. These numbers were compared with the entries in the Malkhana register and they were found to be correct. Mr. Shyam Singh has made a similar statement. The trial Court considering the statement of Shri Shyam Singh as well as other proved circumstances rightly came to the conclusion that the notes recovered from the accused persons were counterfeit and fake. Thereafter he thoroughly discussed and examined the evidence relating to each accused and found each of them guilty and sentenced each of them as mentioned above.

Regarding Appeal No. 54/2006 of Puran Mal, learned Counsel appearing for the accused, apart from the general objections stated that the prosecution witnesses PW-7 Nanak Ram and PW-8 Indra Kumar who are the witnesses of the recovery of the fake notes have been declared hostile and they have not supported the recovery as such it should be considered that he has been falsely implicated.

The learned trial Court in its judgment discussed the evidence on these points in detail. He observed that Ajit Singh, ASI arrested the accused Pooran Mal vide Exhibit P-6 at the time of search of his person. Mobile, telephone diary, pan card and 5 notes of Rs. 100/- each were recovered. All the three notes were found of the same number HN 408612 and two notes were found of No. AT 580755. The very fact that the notes were bearing the same number clearly proved that they were forged and counterfeit. Union Government does not issue notes of same number each note bears separate number. Beside that counterfeit notes of Rs. 41,900 were recovered. The statement of Ajit Singh stand supported by the statement of Purshottam PW-5 as well as Mahavir Singh. As regards the attesting witnesses of the recovery memo and their turning hostile, the trial Court observed that after seeing the counterfeit notes the witnesses signed the recovery memos. They atleast proved that in Sanjay Bazar, Police took some steps and the learned Trial Court believed the recovery.

Besides that the accused Pooran Mal Saini informed the Investigating Officer Raghuveer Singh PW-26 that he wants to get the counterfeit notes of 42,000/- recovered from the drawer of the table of his office situated at Swastik Cargo, Ward C-5, Bhagirath Colony, Chomu House. The information was recorded and the same has been produced and marked Exhibit-39. This information bears the signature of Investigating Officer. In pursuance to this information notes of 41,900/- were recovered from the drawer of the table of the accused from the office as noted above. The tress map prepared by the police of the recovery is Exhibit-P.3. All the notes as indicated in Exhibit-39 were recovered. The attesting witness of the recovery memo is PW-6 Sushil Kumar Agarwal, who stated that these notes were recovered from the place where Pooran Mal lives and he also supported the recovery memo. On the side of the accused it was urged that a litigation is going on against Pooran Mal and brother of the witness. The learned trial Court set aside this argument and believed the statement of the witness stating that actual recovery has been made and it is not as a imaginary statement. The other witness Rambabu PW-9 also supported and stated that in his presence, counterfeit notes recovered from the presence of accused. Besides that Shri A.B. Mathur PW-10 was also examined to prove that the place from which the counterfeit notes were recovered was in possession of the accused and he was his tenant. On the basis of above evidence and the statement of other witnesses, the trial Court held that counterfeit notes of 41,900/- described in the recovery memo were recovered in consequential information given by Pooran Mal. This fact stands proved beyond reasonable doubt.

Against this learned Counsel for the accused has stated that recovery from the possession of the accused has not been proved, as the attesting witnesses has been declared hostile and they have not supported the prosecution case. In support of his contention, he has cited the case of State of Rajasthan v. J. Nagpal and Ors. 1996 Cri. LR 389 . Smt. Prem Latta Vs. State of Himachal Pradesh, as well as Ram Lakhan Singh and Ors. v. The State of Uttar Pradesh AIR 1977 SC 1936 . At the outset it would be worthwhile to note here that Section 100 Cr.P.C. does not apply to search of a person at the time of arrest Sunder Singh Vs. State of Uttar Pradesh,

It is submitted that none of the cases cited by the defence counsel apply to the facts of the present case. The decision in State of Rajasthan v. Jagpal is a decision on the peculiar facts of that case. Two Supreme Court cases were cited before the Hon''ble Single Bench in that case in which the statement of attesting witness were not given any importance and it was not considered that they are mandatory witnesses. The learned judge distinguished those cases of the Supreme Court on the ground that decision in those cases were given under the Customs Act and related to keeping of smuggled gold whereas, the case before the learned judge was relating to trade articles (Licensing and Control Order) in that case the Hon''ble Judge observed those were cases relating to smuggling of goods, here the case relates to violation of Clause 30(2) of the Rajasthan Trade Article (Licensing and Control Order) 1980. He further observed that the explanation given by the dealer that the stock position as well as the price had been displayed on the notice board on 31st March. Thus that case was mainly decided on the ground of plea raised by the stock holder, as such the decision is distinguishable. In the case of Prem Lata it was held that independent and respectful witnesses were easily available in the locality and no effort was made by the officer to call such witnesses and as such there was non compliance of Section 100(4) Cr.P.C. But in the case on hand at the time of search two independent witnesses were kept, but later on they turned turtle. As regards recovery of counterfeit note of 41,900/- the attesting witnesses supported the prosecution, as such this case is also distinguishable. In the case of Ram Lakhan Singh the Hon''ble Court held that non examination of neighbouring independent witnesses and examination only of certain inmates of house, who were inimical to the accused, creates a doubt. In the case on hand none of the witnesses were inimical to the accused. Thus, it can be safely held that 5 forged/counterfeit notes of 100/- each were recovered from the person of the accused and forged counterfeit notes of 41,900/- were recovered in consequence information given by the accused from the place viz. the drawer of the table of the office of the accused and the premises was on rent with the accused. Thus, the recovery stands proved against the accused Pooran Mal beyond any shadow of doubt.

The Investigating Officer Raghuveer Singh PW-26 stated that the accused Mahaboob and Firoz, who were under arrest informed that the counterfeit forged notes were given to them by Usman Bhai and Anju Ali and they were ready to identify Usman Bhai and Anju Ali. This information was recorded, which bears the signatures of Investigating Officer. On the basis of this information, both the accused Mahaboob and Firoz identified Anju Ali, who was found sitting in the Maruti Car No. DL-3C-V-2927 in street No. 13 Seelpur, Delhi was arrested and Exhibit-16 was prepared, which bears the signatures of Mahaboob, Firoz and Investigating Officer Raghuveer Singh. Two independent attesting witnesses Mukesh Yadav, PVV-13 and Vinod Sharma, PW-11 also signed the same. PW-24 Mahaveer, who was also present with the Investigating Officer also supported the prosecution case. As regards Mahaveer, the learned Counsel for the accused raised the objection that his statement was not recorded regarding Anju Ali. As such his statements should not be relied upon. In support of his contention he cited the case AIR 1977 SC 1936 Ram Lakhan v. State and Ors. This case does not help the accused, because it is totally distinguishable. In that case the witness was not regarding any recovery memo. Moreover the Hon''ble Court in that case held that the witness was inimical to the accused. The name of the witness was not mentioned in the charge sheet and the witness was not examined by the Police u/s 161 Cr.P.C. Whereas in the case in hand, the name of the witness appeared in the charge sheet. He was also examined partially. Apart from that, the independent witnesses have supported the recovery. Moreover in In Re: Md. Yusuff, Md. Yusufs, the Madras High Court in the case of counterfeit currency notes has held that the evidence of the Investigating Officer need not necessarily be corroborated.

From Anju Ali counterfeits notes of 1,75,000/- were recovered. Recovery memo Exhibit P-2 and the arrest memo is Exhibit-P30. Anju Ali informed the Police the currency notes have been given him by Majhar. The information was recorded as Exhibit P.43. In pursuance to that Majhar was identified and from his possession counterfeit note of 42,220/- were recovered. The arrest memo is P.31. The site plan which shows recovery is Exhibit P.37. Information given by Majhar is Exhibit P. 44. Majhar informed the Police that he used received counterfeit notes from Liyakat AH, who has a shop at Bhagirath Palace and he was ready to identify the shop as well as Liyakat Ali. This information was recorded as Exhibit-P. 20.

The police went to the shop of Liyakat Ali and from the shop half prepared currency notes and fully prepared currency notes were so recovered. The implements for manufacturing the notes were also recovered. Liyakat Ali has given the information expressing his desire to get the fake counterfeit notes recovered. In consequence of the information notes of 2,39,500/- as well as for 2,00,000/- were recovered at the instance of accused Liyakat Ali. On the basis of the above evidence the learned trial Court held all the accused guilty of the charges framed against them and sentenced them as mentioned above.

The Public Prosecutor stressed that such types of heinous offences the accused appellants should serve the full sentence imposed upon them without getting any remission as is held by the Apex Court in the case of Swami Sradhananad v. State of Karnataka Criminal Appeal No. 454 of 2006 decided on July 22, 2008.

By raising the above arguments, the Public Prosecutor submitted that the appeals filed by the accused be dismissed. The intelligence investigations carried on by Ajit Singh and Raghuveer Singh unearth a gang dealing in counterfeits notes, adversely affecting the economy of our country.

I have heard the learned Counsel for the parties and gone through the entire record.

Before proceeding further a brief of the evidence produced by the prosecution is necessary. PW-1 Rohitash, Constable No. 638 in his statement stated that Ex. P.1 is arrest memo bears his signature A to B and C to D of Pooranmal. From his residence Rs. 42,000 were recovered and seizure memo Ex. P.2 was prepared on which A to B were his signatures and G to H is signatures of Sushil and E to F is signatures of Ram Bahadur. The currency notes were sent to India Security Press Naskik for examination whether they were fake or not. Ex. P. 3 Naksha Moka and Ex. P. 4 arrest Memo of accused Firoz and Ex. P. 5 is arrest memo of accused Mehboob. His signatures A to B on both these documents are of him and accused Mehboob signed C to D and accused Firoz signed at Ex. P. 5. PW-2 Jai Singh Constable No. 6290 stated that Purshotam, Constable was sent in search of accused Pooranmal in another case. Whereupon Purshotam informed over telephone that Pooranmal is walking in Sanajy Bazar area. ASI Ajit Singh and SI Mahaveer arrested Pooranmal Saini and from him five fake currency notes of Rs. 100/- were recovered. PW-3 Ajitsingh stated in his statement that as per the information of Purshotam, accused Pooranmal Saini was arrested vide Ex. P. 6. Over which he signed A to B. C to D are signatures of Pooranmal. From his possession one mobile, one telephone diary and one Pan card and 5 currency notes of 100 denomination were recovered. The notes were seized vide Ex. P. 7 and Ex. P.8.FIR bears his signature A to B. PW-4 Gopal Singh, Constable No. 6224 of Police Station Ramganj also proved Ex. P.1 arrest memo of Pooranmal Saini in presence of other police officials. He was also present at the time of arrest of accused Mahboob Ali and Firoz from Jhotwara Sanjay Nagar. PW-5 Purshottam stated about the search made by him in Sanjay Bazar about accused Pooranmal. Upon his information Pooranmal was arrested. PW-6 Sushil Agrawal, independent witness also attested document Ex. P.2 seizure of currency notes recovered from accused Pooranmal. PW-7 Nanag was declared hostile, but he has attested his signatures E to F on Ex. P. 6 and Ex. P.7. PW-8 Indrakumar independent witness attested his signatures on Ex. P. 7 seizure memo of fake currency notes. He was also declared hostile. PW-9 Rambabu independent witness also attested his signatures oh Ex. P. 2 seizure memo and. Ex. P.3 Naksa Moka, PW-10 A.P. Mathur independent witness attested his signatures A to B on Ex. P. 14 seizure memo of articles recovered from Pooranmal at C-5 Bhagirath Colony. He is owner of C-5 Bhagirath Colony. PW-11 Vinod, private driver was declared hostile. PW-12 Ashish Dixit, identified accused Pooranmal, accused Mohboob and accused Firoz. He attested his signatures A to B on Ex. P. 29 identification memo. PW-13. Mukesh Yadav, working in travel company stated that he was called for going to Delhi in Qualis. Accused Mehboob and Firoz were with them along with the police officials. Anju Ali accused was arrested at Delhi and from his 35 currency notes of denomination Rs. 500/- wee recovered. Anju Ali disclosed about the name of Majhar, from him Rs. 48,220 were recovered at Delhi. This witness fully supported the case of the prosecution. PW-14 Salumuddin attested his signatures A to B on Ex. P. 33 Naksa Moka of the house of Usman. PW-15 Haji Badruddin was declared hostile. PW-16 Shyam Singh, Manager, Reserve Bank of India attested his signatures on Ex. P. 34 about the examination of fake currency recovered from the accused. PW-17 Santosh Dadhich attested his signatures G to H on Ex. P. 14 search report of office of Pooranmal Saini accused. PW-18 Ishaq Mohd. attested his signatures C to D on Ex. P. 10. PW-19 Dr. Shailendra Jha Asst. Director FSL Jaipur attested Ex. P.35 examination report about the article PS/110 machine in working condition. PW-20 Raman Bhardwaj, ASI Police Station Ramganj, fully supported the case of prosecution. PW-21 Khurshid Ahmed Head Constable attested Malkhana register Ex. P. 38 and copy of it Ex. P. 38A. PW-22 Tuganlal attested his signatures on Ex. P. 11 arrest memo of Ramgoal. He was declared hostile. PW-23 Ramswaroop was declared hostile. PW-24 Mahaveer Singh, SI fully supported the case of the prosecution. PW-25 Subhash attested Ex. P. 10 map where he made his signatures E to F. PW-26 Raghuveer Singh SHO fully supported the case of the prosecution. PW-27 Mumtaz Ali, ASI, police official also supported the case of the prosecution. PW-28 Ashok Chouhan is also police official and he has also fully supported the prosecution case.

The learned Counsel for the accused-appellants Anju Ali, Majhar and Liyakat Ali has argued that non-compliance of Section 100(4) Cr.P.C. provides that before making a search, the Investigating Officer ought to have called upon two or more independent and respectable inhabitants of the locality in which the place to be searched was situated. He further submitted that none of the search/seizure independent witnesses of the locality were called. This submission is totally wrong. Every recovery memo and production of notes bears the signatures of independent witnesses. It was for the accused to prove that the witnesses were not independent witnesses. It is totally wrong to say that recovery shown from Delhi from accused person is highly doubtful. Police Vehicles, Red Light-Vehicles, Government Vehicles on duty are not required to deposit any Toll Tax. There were nothing wrong in making the recovery in the night. It is a well-known fact that smugglers, boot liquors and the persons who manufactured and deal in counterfeit coins have some links with one or two persons everywhere and prior to the making of search by the Investigating Officers, they get the information. The well proved case cannot be discarded on the ground of minor discrepancy of un-importance. In a big city the people remember the well-known places and may not remember the street. At the time of making statement, the witness remembered the prominent place Dhola Kuan. He failed to give name of street at which the recovery was made. Such details are not remembered. They do not affect the merit of the case. It cannot be doubted that accused of this case were arrested. It is not case of the accused that they voluntarily surrendered before the Police at Jaipur with all implements of manufacturing currency notes, half prepared notes and fully prepared notes. The memos were prepared and the persons who has prepared them during the course of investigation has refreshed his memory u/s 159 of the Indian Evidence Act. There is no reason why the Police Officers would prepare forged recovery memos. The huge quantity of notes recovered from the possession is self speaking evidence that the prosecution case is correct and no manipulation has been done. The learned trial Court has discussed in detail has also rightly distinguished the cases cited before him and before this Court. The Investigating Officers of this case have done an excellent job of tracing the accused one after the other at the instance of the accused one by one. All of them are members of the criminal conspiracy. As a part of conspiracy, different accused have been assigned different jobs.

In the case of conspiracy it is not necessary that when one accused part assigned to him, the other should represent. In this case forged currency notes were recovered from every accused. Even if notes would have not been recovered from any accused then also he could not have said that as one of the conspirator''s is not liable to be punished. It is totally wrong to say that one of the witness was shattered in cross-examination. It is proved beyond reasonable doubt that the police party went to Delhi and made recoveries. There is noting to say that the attesting witnesses are stock witnesses. Simply given the name of stock witnesses does not affect the truthful and veracity of the statement. An imaginary argument which is usually meant in all criminal cases have been made that the accused were falsely implicated by the Investigating Officer. It is fantastic to say that so huge number of notes and implements to manufacture them could be placed by the police and make the accused liable. The Investigating Officers and the witnesses have no enmity with the accused.

It would be worth remembering that discovery memos or recovery memos are used u/s 159 of the Indian Evidence Act. They are required to be prove by the person who has prepared them. The statements of attesting witnesses are only corroborating evidence. In view of the Supreme Court decisions their supporting the prosecution cannot be considered as mandatory. After all recovery memos and discovery memos relates to law of procedure which is not mandatory it is directory. If they are considered as mandatory witnesses then in all cases where the accused is in a position to tamper the attesting witness produced on behalf of the prosecution inspite of his committing a heinous crime most dangerous to the Society which affects the financial position of the State, will go scot-free and shall be acquitted. The innocence and conviction of an accused cannot rest on the honesty or dishonesty of the witness. The following cases support the contention that attesting witnesses are not mandatory. What is required is that the articles Which are subject matters of regarding which offence is said to be have been committed were recovered from the possession of the accused or not. In this case as already mentioned above the statement of Ajit Singh, PW-3 stands supported by the statement of Purshottam, PW-5, Jai Singh, PW-2, Mahaveer Singh, PW-24. In 1956 SC 217, the Hon''ble Supreme Court held, the presumption of law that a person acts honestly applies as much in favour of the Police Officer as or any other person and it is not judicial approach to destruct and suspect him without good grounds, therefore such an attitude could do neither credit to the magistracy nor good to the public. In Nathusingh Vs. The State of Madhya Pradesh, the Hon''ble Supreme Court held that Police Officer as prosecution witnesses-Evidentiary Value. The mere fact that the prosecution witnesses are Police Officers is not enough to discard their evidence in the absence of evidence of their hostility to the accused. State of Maharashtra Vs. P.K. Pathak, the Hon''ble Supreme Court observed at para 9. Merely because PW-2 and PW-4 were Custom Officers, their evidences could not be rejected outright because they were doubtless competent to prove search and recoveries. In the case of State, Govt. of NCT of Delhi Vs. Sunil and Another, the Hon''ble Supreme Court has held as under:

Sections 100(5), 161 & 162 - Evidence Act, 1872 - Section 27 - Recovery of article (bloodstained knickers of deceased) on the basis of statement made by accused before police - Held, seizure memo need not be attested by any independent witness - Mere absence of independent witness when investigating officer recorded pursuant thereto is not sufficient ground to discard the evidence - Evidence of police officer regarding the recovery at the instance of the accused should ordinarily be believed - It is for the accused to show that such evidence is unreliable.

The Hon''ble Supreme Court has further observed:

But It Is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

As regards the argument that mensrea of offence under Sections 489B and 489C should be proved. It would suffice to say that Section 28 of the Indian Penal Code defines counterfeit as under:

Counterfeit - A person is said to counterfeit who causes once thing to resemble another thing intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced.

Explanation 2 to this section clearly shows that the burden of proof lies on the accused and not on the prosecution. The argument raised by the learned Counsel that from the report of the expert it appears that the notes recovered were not exactly similar to the currency notes and they were marked difference as such it cannot be said that they were counterfeit notes but they were only fancy notes. The argument itself is fantastic. For making a counterfeit note the exact imitation is not necessary. Existence of the resemblance which might cause deception is enough to raise the presumption of intention to deceive. The three judge bench of the Hon''ble Supreme Court in The State of Uttar Pradesh v. Hafiz Mohd., Ismail, Hafiz Jawed Ali held that "Counterfeit � Meaning - Colourable imitation" Exact imitation not essential existence of resemblance which might cause deception is enough to raise presumption of intention to deceive." The State of Uttar Pradesh Vs. Hafiz Mohammad Ismail and Hafiz Jawed Ali, In K. Hashim Vs. State of Tamil Nadu, the Hon''ble Supreme Court held that "Section 28 IPC defines the word "counterfeiting" in very wide terms. The main ingredients of counterfeiting as laid down in Section 28 are:

(1) Causing one thing to resemble another thing;

(2) intending by means of that resemblance to practice deception; or

(3) knowing it to be likely that deception will thereby be practiced.

"Counterfeit" in Section 28 does not cannot an exact reproduction of the original counterfeited. Explanation 2 of Section 28 is of great significance. It lays down a rebuttable presumption where resemblance is such that a person might be deceived thereby. In such a case the intention or the knowledge is presumed unless the contrary is proved. There is no necessity of importing words like "colourable limitation" therein. In order to apply Section 28, what the court has to see is whether one thing is made to resemble another thing and if that is so and if the resemblance is such that a person might be deceived by it, there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved.

The objections regarding the India Security Press, Nasik is totally false. An attempt has been made to mislead the Hon''ble Court. The accused very well knew that at page 9 of the judgment it has been mentioned that the forged counterfeit notes were sent to India Security Press, Nasik Road. Prior to that they were sent to the breach of Bhartiya Reserve Bank, Jaipur, which were examined by Mr. Shyam Singh as well as the wing of the Bank, which detects forged notes and it was found that all the 1004 notes were forged. Shyam Singh has stated in his statement that in the back portion of the report 34, the number of all 1004 notes have been mentioned. In same continuation, it has further appeared as page 11 that the Indian Security Press Report bears the seal of General Manager along with his signatures and in that report also, the number of the notes have been mentioned and from the Malkhana register, the number of the notes mentioned in the security press report were also compared. Thus wrong assertion has been made that the Indian Security Press report did not contain the number of counterfeit notes is deliberate wrong assertion of facts against the record leads to the inference that the accused is guilty of the offence charged.

On behalf of accused reliance has been placed on the case of State of Rajasthan v. Rajendra 1999 WLC (UC) 741. It is one page judgment against acquittal, which does not lay down any law this judgment does not apply to the facts of the case of hand, because both the report contains the number of the counterfeit forged notes.

Lastly an argument has been made in frustration and reliance has been made on the case reported in Umashanker Vs. State of Chhattisgarh, This case was decided on the point that no specific question with regard to currency notes being take was put to the accused u/s 313. The question of menserea need not detain me further Explanation 2 to Section 28 IPC is an answer to it. The Explanation reads as under:

28 Counterfeit....

Explanation 1....

Explanation 2 - When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced.

In the case of The State of Uttar Pradesh Vs. Hafiz Mohammad Ismail and Hafiz Jawed Ali, the Hon''ble Supreme Court held that exact imitation not essential.

There is sufficient evidence on record to prove that Liyakat Ali used to manufacture the fake currency notes and counterfeit notes were Rs. 2,39,500/- as well as Rs. 2,00,000/- along with the half prepared notes and machineries to manufacture were recovered. He used to transfer them to Majhar and Anju from whose possession fake notes of Rs. 42,220 were recovered as well as from Anju Ali fake notes Rs. 1,75,000/- were recovered. Anju Ali used to give the fake notes to Mahaboob and Firoj. They used to transfer to Pooran Mal from whose possession as per Exhibit-P2 notes of valuing Rs. 41,900/- were recovered and as per Exhibit P.7 5 notes of 100/- each were also recovered. Thus, a regular transaction was going on far transporting fake counterfeit notes in the market.

Thus, a complete conspiracy punishable u/s 120-B stand proved. For making a criminal conspiracy, it is not necessary that each of the accused fully participate in all the activities. Here is a case where Liyakat Ali used to manufacture fake and counterfeit notes. Huge amount of notes and all the implements and machines for preparing fake notes have been recovered from his possession. A task of introducing them to the market was given to Majhar and Majhar in his turned used to give notes to Anju Ali for further transaction and transfer. Anju Ali used to give the fake notes to Mahaboob and Firoj. They used to transport the fake notes to Pooran Mal. Thus, it is a well planned business of manufacturing, introducing in the market fake and counterfeit notes through different agents. It is settled position of law that each member of the conspiracy is not required to perform the same act. Different persons play their own part is a link of the organized conspiracy. This view stand supported in the case of Suman Sood v. State of Rajasthan (2007) 5 SCC 734 wherein para 47 record as under:

True it is that there is no direct evidence to show that Suman Sood was a party to the conspiracy in kidnapping Rajendra Mirdha and in detaining him at House No. B-117, Model Town. But it is well settled that a inference as to conspiracy can be drawn from the surrounding circumstances inasmuch as normally, no direct evidence or conspiracy is available.

It would be worthwhile to note here that in this case the conviction and sentence is awarded to Ms. Suman Sood was confirmed. The Hon''ble Supreme Court at para 73 held as under:

So far as accused Suman Sood is concerned, an order of conviction and sentence recorded by the trial Court and upheld by the High Court for offences punishable under Sections 365/120-B, 343/120- B and 346/120-B IPC is confirmed and upheld. Her conviction and order of sentence for offence punishable under Sections 364-A read with 120-B IPC passed by the High Court, however, is set aside and her acquittal for the said offence recorded by the trial Court is restored.

The object of the legislature in enacting the provisions of 489-A, 489-B, 489-C is not only to protect the economy of the country, but also to provide adequate protection to currency notes and bank notes. It is well-known that foreign neighboring countries are sending to our country fake counterfeit notes to stop the economy growth of the country and the persons, who manufacture such fake notes and make them current in the market are in no way less guilty then these persons.

An argument has been raised that from the very look at the currency notes according to India Security Press, Nasik, the notes produced before them suffered a number of defects, as such it should be held that they were prepared for fancy purpose. The argument is fantastic. The very existence of the fake notes amounting to lakhs and lakhs rupees indicate that all the accused under a criminal conspiracy for bent upon selling and introducing the fake notes in the market. This case is governed by the case K. Hashim Vs. State of Tamil Nadu, , the fact and ratio descendi of the case of K. Hashim noted supra at verbatim with necessary changes in nomenclature applies to the facts of this case. By credible, cogent and reliable evidence tender the invertible conclusion is that the appellants have been rightly convicted and sentenced under various sections. The sentence as imposed do not warrant interference, particularly in view of the object for which the Section 489-A, 489-B, 489-C, 489-D and 120-B of the IPC have been enacted.

From bare perusal of the statements of the prosecution witnesses mentioned above and the reasons mentioned above, it is clear that the prosecution has been able to prove the case against the accused appellants beyond reasonable doubt. From the accused appellants fake currency notes, and machinery used for preparing fake currency notes were recovered and they were found to be guilty of provisions of Sections 489A, 489B, 489C and 489D for which separately and collectively charged as mentioned above, have been rightly convicted by the trial Court. In addition to my findings, I am also in agreement with the findings arrived at by the trial Court. In these circumstance the arguments raised by the learned Counsel for the appellants are devoid of merit and the same are rejected as discussed above. I have also gone through the findings arrived at by the trial Court on the question of sentence and I am in agreement with the view taken by the trial Court on this point. Arguments of the counsel for the appellants for releasing them for the period already undergone by them is also devoid of merit, hence rejected. The sentence of imprisonment imposed is just and proper, but I am of the considered opinion that in such types of heinous offences particularly relating to economic offences directly concerned with the State Exchequer, the accused appellants should serve sentence of imprisonment imposed upon them for full and no remission should be given to them, particularly when they were caught with huge fake currency notes and equipments used for preparing fake currency. Mr. Pradeep Shrimal, Public Prosecutor, deserves appreciation in preparing and arguing this matter.

For these reasons the appeals filed by the accused appellants are dismissed. The judgment of conviction and sentence dated December 17, 2005 passed by the Special Judge (Fake Currency Notes) Cases Jaipur City stand confirmed. I may add that in such types of heinous offences the accused appellants should serve the full sentence imposed upon them without getting any remission.

The appellants Puranmal, Anju Ali, Mazhar, Mehboob Ali and Mohd. Firoz, who are on bail shall be arrested forthwith for serving out the remaining sentence. Liyakat Ali is in jail, he shall serve the remaining sentence as ordered by the trial Court.