Prasanta Sarkar vs The State of West Bengal

Indrajit Chatterjee, J—I am hearing this appeal as against the judgment and order of conviction dated 9th April, 2014 passed by the learned Additional District and Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 1(12) 11 arising out of Sessions Case No. 5(8) 11 (Ashokenagar P.S. Case No. 130/11, G.R. Case No. 1306 of 2011).

The prosecution case as unfold at the time of trial can be stated in brief. Thus:

The de facto complainant of this case one Rajarshi Banerjee of CID, West Bengal, District-North 24-Parganas got a source information that a person would come with fake currency notes near Guma Railway Station within Ashokenagar PS, District-24 Parganas (North). He conveyed the matter to his superior and obtained permission and he thereafter along with Inspector Sk. Md. Feroze Hossain (PW6), Inspector Pranab Mitra (PW2), Constable Mahasin Ali Khan (PW3) and Constable Kapil Deb Barman (PW4) proceeded towards Guma and reached the place of occurrence in the mid-noon. The witnesses varied regarding the exact time of arrival but it was at least in between 1.00 p.m. to 2.15 p.m. When the police party was waiting near the place of occurrence they found one person coming down the street and source identified the said person. The police officers present there including the de facto complainant Rajarshi Banerjee (PW1) disclosed their identity and as soon as the said person could know that they were police officers then he tried to flee away, but he was apprehended.

The said person disclosed his name as Prasanta Sarkar (now the appellant before this Court). Two witnesses, namely Bhaskar Banerjee (PW8) and another Sanjoy Majumder, (not examined), could be located at the spot and the accused was given an opportunity to search the de facto complainant in presence of those witnesses and other persons who assembled at the place of occurrence but the accused and the other persons declined.

Thereafter, the accused was searched and the police party found eighty-five hundred rupee notes in total rupees forty thousand which were kept in a plastic bag in possession of the accused. The notes were in four sets divided into four series (i) 8BQ-J 32311, (ii) 8BQ-J 32312, (iii) 8BQ-J 32313 and (iv) 8BQ-J 32316. All such notes were 20 in number per series. Those were suspected to be fake currency notes and as such those were seized as per seizure list which was marked as Exhibit 2 and the accused was also asked to sign which he did. The accused was thereafter arrested and taken to Ashokenagar Police Station and the FIR was lodged by PW1, I repeat Rajarshi Banerjee giving rise to Ashokenagar P.S. Case No. 130/11 dated 29.3.11 under Sections 489B and 489C of the Indian Penal Code (hereinafter called as the said Code). The case was investigated by P.W.9, Dilip Kumar Sinha, SI of Barasat DD, CID, West Bengal.

During the course of investigation the said Investigating Officer visited the place of occurrence along with the accused and the raiding party and prepared a rough sketch map with index as per identification of the complainant, examined the members of the raiding party and recorded their statements under Section 161 of the Criminal Procedure Code. He also examined the two witnesses to the seizure, forwarded the accused to Court, got police custody and thereafter the accused was again produced and remanded to judicial custody, he forwarded the seized alamat that is the fake currency notes to the Manager, Bharatiya Note Mudran Private Ltd., Salboni, West Bengal for examination through the learned Chief Judicial Magistrate, North 24-Parganas at Barasat, he also received the said alamat again from the said Manager for rectifying a point, the matter was rectified in the following manner that digit ''I'' was asked to be treated instead of ''J'', necessary order was passed by the learned Chief Judicial Magistrate on 31.5.2011 and those were forwarded again, the Investigating Officer got the report of the examiner of the currency notes and those were proved to be Fake Indian Currency Notes (hereinafter called as FICN) and after completion of investigation the Investigating Officer submitted charge sheet against the accused for offence punishable under Sections 489B and 489C of the Code. The case was committed to the Court of Sessions and Sessions Case No. 5(8) 11 was registered. It was transferred to the learned Trial Court and charge was framed against the accused for committing the offence punishable either under Section 489B or 489C of the Code.

The defence case as I get from the trend of cross-examination and the answers given by the accused in his examination under Section 313 of the Criminal Procedure Code is that nothing was seized from the accused and he did not go to that place of occurrence as claimed by the prosecution. The accused pleaded false implication before the trial Court. As many as 9 witnesses were examined by the prosecution and several documents were marked as exhibits. The defence preferred not to examine any defence witness but on behalf of the defence the arrest memo was marked as Exhibit A, unfortunately the same document was marked as Exhibit 3 by the prosecution. After completion of the trial, the Court held the accused guilty in respect of the charge punishable under Section 489C and acquitted him in respect of the charge under Section 489B of the Code. The person accused, appellant, was taken into custody and was sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for another three months.

On behalf of the defence, it was argued before this Court that the prosecution could not bring home the charge punishable under Section 489C of the Code, that when the currency notes were forwarded at first those were proved to be incorrect and thereafter those currency notes were returned back and thereafter the currency notes were forwarded again and this circumstance is enough to prove foul play on the part of the investigating agency, that as per sketch map the place of occurrence was a busy area and near Guma Railway Station. It was the argument of the defence that if that be so then why any railway officer was not asked to be a witness to the seizure.

That the only seizure list witness who came to depose is a resident from a far of place like Garia cannot be believed and as such the Court should not believe the recovery point considering the fact that except this seizure list witness and the currency note examiner all were policemen.

That the envelopes on which the notes were kept were not signed by anybody and those were not labelled. That the officers of the raiding party differed as regards the time of their arrival at the place of occurrence and this difference of timings ranges for more than one hour which is enough to discredit the witnesses. On the legal point, he attacked the conviction on the ground that mere possession of FICN is no offence. He took me to Section 489C of the Code to show that intention to use the same as genuine or that it may be used as genuine are two vital ingredients of that Section to maintain a conviction under that Section. The defence prayed for acquittal of the accused.

On behalf of the prosecution, Ms. Faria Hossain, submitted that there was practically no plausible contradiction in between the evidence of the raiding party particularly when the time gap as regards their arrival as claimed by them varied for just 30 minutes and as such on that ground only the prosecution case which has been otherwise established cannot be thrown out.

That the discrepancy as regards the series of notes that is ''I'' and ''J'' was duly covered as per the order of the learned Chief Judicial Magistrate dated 31.5.2011 and as such there is nothing to impeach the credibility of the Investigating Officer, the detecting Officer or the currency note examiner as regards those 80 FICN. As regards the argument of the defence that why not other public witnesses cited by the prosecution it was her argument that in present days the public has developed an apathy to be a witness in a criminal case particularly when his or their interest is not affected. She submitted that the seizure list witness (PW 8) cannot also be disbelieved if the evidence is scrutinized keeping a searching eye on his cross-examination. As regards the case of false implication it was her argument that in the entire cross-examination of the detecting party nothing has come out that there was any enmity between this accused and the raiding party. She further submitted that none of the raiding party had any axe to grind against the accused or to falsely implicate him in such a case.

Thus what has come out from the argument of the defence is that the case is entirely based on the defence of the police men except the examiner of currency notes and that the seizure list witness about whom much was argued.

Let me now travel through the evidence on record.

P.W.1 is the de facto complainant of this case. It came out from his evidence that the incident took place on 29.3.2011 when he was posted as one S.I. of police, CID, West Bengal and on that date, he got a source information that one person would be coming with fake currency notes near Goma Railway Station within Ashokenagar Police Station and he conveyed this information to his superior and after obtaining necessary permission, he along with the Inspector Firoze Hossain, Inspector Pranab Mitra, Constable Mansoor Ali Khan, and Constable Kapil Deb Barman proceeded towards Goma and reached the venue in the mid-noon in between 13-00 hrs. to 13-15 hrs. approx. and he contacted the source. After waiting for a while, saw one person to come to the street and the source identified that man and the said man was detained. HE further deposed that he disclosed his identity to appellant who tried to flee away and he was apprehended who disclosed his name as Prasanta Sarkar including his address. After observing necessary formalities, this P.W.1 conducted search and on search he found Rs. 40,000/- which were all in Rs. 500/- notes contained in a plastic bag which was on the hand of that apprehended person.

The said witness further deposed that it appeared to him that all the notes were fake and those were seized and the accused put his signature all the seizure list, accused was arrested and taken to police station and the notes were forwarded for examination. He also admitted that some discrepancy arose when those notes alleged to be fake notes were forwarded to the General Manager, Bharatia Mudra Nigam Pvt. Ltd. as regards digits ''I'' and ''J''.

Same is the version of the other witnessed except the fact that P.W.2 deposed that they reached the P.O. at about 1-50 p.m., whereas P.W.3 deposed that they came at about 2-05 p.m. to 2.10 p.m., as per P.W.4 they came at 2-00 p.m., as per P.W.6 they came to the place of occurrence at about 1-15 p.m. but in his cross examination this witness deposed "I cannot recollect at what time I reached the P.O. then says, at about 4-00 p.m."

P.W.7 is a formal witness being the person who filled in the formal FIR.

P.W.8 is the seizure list witness who is the resident of Goma, within the District of South 24-Parganas and he deposed that on that date, at about 1-30 to 2-00 p.m. he was taking tea in a tea-stall near Goma Railway Station and noticed gathering of some persons. He also deposed that some persons in plain clothes identified themselves to be the CID Officers told him that some fake currency notes have been recovered and he signed on the seizure list. He also deposed that the persons from whose possession those notes were recovered disclosed his name as Prasanta Sarkar.

This witness deposed in his cross-examination that he signed on the seizure list at the request of the CID Officer after they disclosed before him about the possession of fake currency notes by a person. This witness deposed that it was not possible for him to say as regards the contents of the seizure list. He was suggested that he put his signature on a paper at the request of the police but he denied the same. He also denied that the accused was known to him before and he was in hostile relationship with him for which he came to depose falsely.

P.W. 9 is the I.O. of this case who has stated in details as to the progress of investigation which ultimately resulted in submission of charge sheet.

P.W.5 is another vital witness of this case, who was posted as Manager of Bharatiya Note Mudran Private Limited, and he deposed that finally his department received on 2-6-2011 the envelope containing the seized FINC. He deposed that he examined those FINCs and submitted a report, which was marked as Ext.5. As per that Ext. the said expert came to opinion that all the 80 (Rs. 500 X 80) notes were counterfeit notes. It was argued by the defence that the envelope on which those notes were kept were not sealed or signed by any person.

Be that as it may, that cannot undo one otherwise established evidence. It was undoubtedly a defect on the part of the investigation agency but for that defect the prosecution case should not be brushed aside. The defective investigation cannot give any privilege to the defence unless it touches the very root of the investigation for which the accused was vitally prejudiced. I have gone through cross examination of this witness. There is nothing to impeach his credibility. This Court is not unmindful that at first there was a mistake in writing the digit ''I'' when the notes were at first forwarded but after due correspondence the matter was solved and ''i'' was asked to be read as ''j''. The Chief Judicial Magistrate was appraised regarding this defect and he duly noted the same in the order sheet while answering the queries made by the expert agencies. I should not forget that in the present case the accused came up with a plea that nothing was seized from him and if that be his defence, there was very little scope on the part of the accused-appellant to challenge the report submitted by P.W.5.

It was argued that why no railway official of Guma Railway Station was cited as witnesses. Nothing was asked to the I.O. as to whether he went to that Railway Station in search of such witness. I have gone through the sketch map prepared by the I.O. The distance between Guma Railway Station and the place of occurrence noted as "A" in the sketch map was not taken. It may be noted that in series of decisions, the Apex Court has said that the witnesses are generally reluctant to be a witness in a criminal case and in which the witnesses have no interest and as such this case is to be judged on that perspective.

It was argued on behalf of the defence that all the witnesses, except the seizure list witness and the expert witness all are police personnel and the accused person should not be convicted relying on the evidence of such police personnel.

Time and again, the Apex Court has directed the learned Trial Court to assess the evidentiary value of the police personnel appearing to depose on behalf of the prosecution. I can cite here the decision of the Apex Court, as reported in Aher Raja Khima Vs. The State of Saurashtra, AIR 1956 SC 217 : (1956) CriLJ 426 : (1955) 2 SCR 1285 wherein the Apex Court held that evidence of a witness cannot be discarded simply because he is a police officer-in-charge of investigation. The police officers are not worse than ordinary human being. It cannot be said that all of them are liers just as it cannot be said that all of them are truthful.

In Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, AIR 1971 SC 28 : (1971) CriLJ 1 : (1970) 2 SCC 530 : (1970) 1 SCC(Cri) 496 , Asstt. Collector of Customs: Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, AIR 1971 SC 28 : (1971) CriLJ 1 : (1970) 2 SCC 530 : (1970) 1 SCC(Cri) 496 wherein the Apex Court held that evidence of I.O conducting search may be relied upon without cooperation.

In a recent decision of the Apex Court as reported in Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, AIR 2012 SC 1292 : (2012) CriLJ 1991 : (2012) 3 JCC 1714 : (2012) 3 SCALE 414 : (2012) 4 SCC 722 : (2012) AIRSCW 1994 , the Apex Court held that it cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case which will depend upon fact of a given case - if testimony of such a witness is reliable, trustworthy, cogent, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. The Apex Court proceeded to say that only when his interest in success of case is motivated by over zealousness to an extent of his involving innocent people, then, no credibility can be attached to his statement.

In another decision of the Apex Court as reported in Pramod Kumar Vs. State (GNCT) of Delhi, (2013) 7 AD 215 : AIR 2013 SC 3344 : (2013) CriLJ 3680 : (2013) 4 RCR(Criminal) 55 : (2013) 7 SCALE 578 : (2013) 6 SCC 588 wherein the Apex Court held on this subject that non-examination of public witness is not automatically fatal to prosecution case, as ordinarily, public at large show their disinclination to come forward to become witness and the evidence of police witnesses would depend upon veracity, credibility and unimpeachability of their testimony. It further proceeded to say if the testimony of the police official is found to be reliable and trustworthy, court can definitely act upon the same. The court has every right to disbelieve one unreliable and untrustworthy police man but it should not do so solely on the presumption that a police witness should be viewed with distrust.

I have gone through the evidence of P.Ws partially and reading and rereading their evidence and keeping my searching eyes on their cross-examination. I am satisfied that they deposed the truth before the court. There was nothing in that cross-examination except some time gap for their arrival at the place of occurrence about which I have covered earlier in this judgement. Their evidence remains unimpeachable. These witnesses had no axe to grind against this accused. Nothing has come before this Court that this accused-appellant was known to the policemen earlier and he had animosity against those policemen.

Thus, considering the materials on record, this Court is satisfied that there is nothing to interfere with the findings, order of conviction and sentence passed by the learned Trial Court.

Before I part with the judgement, I must say that the order of conviction under Section 498C of the Code was the appropriate section which was claimed against this accused. The offence alleged is such that it is demoralizing our economy and this type of offence is rising alarmingly. I am sorry I cannot accept the argument of the defence that imprisonment awarded by the learned Trial Court be lowered down.

Thus, the order of conviction and sentence are both affirmed. The appeal is dismissed without cost. The seized F.I.C. Ns be destroyed in presence of a police officer not below the rank of Deputy Superintendent of Police, after the period of appeal is over.

Criminal Section is directed to transmit a copy of this judgement along with the lower court records to the learned Trial Court.

The accused is in custody and must serve the remaining part of the sentence.

Urgent photostat copy of this order, if applied for, be given to the parties on priority basis.