Shankar Reddy & Ors vs State By J.J. Nagara Police Station

G Basavaraja, J

CAV

These appeals arise out of the judgment of conviction and order on sentence dated 05th December, 2014 passed in SC No.565 of 2011 by the Fast Track Court-IV, Bengaluru City (for short "the trial Court").

The parties herein are referred to as per their rank and status before the trial Court.

Brief facts leading to this appeal are that the Sub-Inspector of Police, Jagajeevanram Nagar Police Station, Bengaluru submitted the charge sheet against the accused for the offence punishable under Sections 489B and 489C read with Section 34 of Indian Penal Code. It is alleged by the prosecution that on 28th January, 2011 at about 03.30 pm in front of Tea stall situate at Hosahalli Main Road, 11th Cross, Padarayanapura, Bengaluru, in furtherance of their common intention, accused 1 to 3 trafficked and circulated counterfeit currency notes 111 in number of face value of ₹1,000/- each, knowing and having reason to believe the same are forged and counterfeited, and intended to use the same as genuine. Thus the accused committed offence punishable under Section 489B and 489C read with Section 34 of Indian Penal Code.

After filing charge-sheet, case was registered in CC No.13724 of 2011. Thereafter, case was registered in SC No.575 of 2011. Upon hearing on charges, the trial Court framed charges against the accused for the alleged commission of offences under Sections 489B and 489C read with Section 34 of Indian Penal Code. Same were read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. In order to prove the guilt of the accused, in all, seven witnesses were examined as PWs1 to 7 and marked twelve documents as Exhibits P1 to P12 as well as seven material objects were marked as MOs.1 to 7. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused have totally denied the evidence of prosecution witnesses. However, they did not choose to lead any defence evidence on their behalf. Having heard the arguments on both sides, the trial court has convicted the accused for the offence under Sections 489B and 489C read with Section 34 of Indian Penal Code and passed the sentence to undergo simple imprisonment for one year each and to pay a fine of ₹2,000/-each, in default of payment of fine, accused shall undergo simple imprisonment for a period of three months. Being aggrieved by the judgment of conviction and order on sentence, appellants have preferred these appeals.

Sri C.N. Raju, learned counsel for the appellants would submit that without registration of First Information Report, recovery mahazar was conducted which is not sustainable under law. Both panch witnesses PW4 and PW6, have turned hostile. Other witnesses are the official and interested witnesses. Without supporting evidence of independent witnesses, the trial Court has convicted the accused, which is not sustainable under law. Further, he would submit that absolutely there are no materials to constitute the offence punishable under Section 489B of Indian Penal Code. The accusation made in the charge sheet and evidence of the prosecution witnesses, reveals that only allegation against the accused is for the offence punishable under Section 489C of Indian Penal Code, which is punishable up to seven years or with fine or with both. In the case on hand, all the accused have already undergone judicial custody for a period of one year. The accused arrested on 29th January, 2011 and released on 13th January, 2012. Hence, if this Court comes to conclusion that the accused have committed the offence punishable under Section 489C of Indian Penal Code, then this Court may set off the period of detention already undergone by the accused in judicial custody and close the appeal.

As against this, Kum. Asma Kouser, learned Additional Special Public Prosecutor appearing for the respondent-State, would submit that there are sufficient materials to constitute the alleged offence and accordingly, sought for dismissal of appeals.

Having heard the arguments on both sides, the following points would arise for my consideration.

Whether the trial Court is justified in convicting the appellants/accused for the offence under Section 489B and 489C of the Indian Penal Code?

Whether the appellants/accused are entitled for modification of sentence?

What order?

Regarding Point No.1:

I have perused the material placed before this Court. Police Officer-T. Kodandarama, deposed that on 28th January, 2011, he being the Deputy Commissioner of Police, Bengaluru West, after completion of meeting, when he was coming back, at about 03.00 pm, some informants came and informed him that three persons are coming from Vijayanagara in an auto along with counterfeit notes to be taken to Kalasipalya for circulation. Immediately, PW1 informed Sub-Inspector of Police, Anjanappa-CW10, and along with Constables CW4 and CW7 went near the Tea Stall on 11th cross, Hosahalli Main Road, wherein PW1 asked CW2 and CW3 viz. Nawab and Sadiq, to come as panch witnesses and thereafter, PW1 at about 03.30 pm along with police staff, checked the autorickshaw passing through the said road. At 03.30 pm, the informant shown one autorickshaw bearing registration No.KA-05/AA-1448 which was coming through the said road and told PW1 that in the said autorickshaw, the persons are travelling with counterfeit notes. PW1, along with other police staff and panchas, surrounded the said autorickshaw and noticed two persons sitting in the back seat. PW1 enquired them. One person told his name as Shankar Reddy and thereafter, police enquired about what is in the auto. The inmates of autorickshaw, in a suspicious manner, avoided to answer the question and thereafter, when were asked again, they told that they were taking counterfeit notes for circulation. Thereafter, PW1 along with the staff made personal search on Shankar Reddy the inmate of the autorickshaw and seized 60 notes of Rs.1,000/- denomination from his right side pant pocket. Those notes appeared to be counterfeit notes, of which, 43 notes bearing same numbers 3BF 309066 and 17 notes bearing No.3BF 309067. Thereafter, the body of Jaagdish was also searched and seized 30 notes of Rs.1,000/- denomination with numbers 484BE30 which were also counterfeit notes and from Nagaraj 21 notes of Rs.1,000/- denomination were seized. Out of 21 notes, 18 notes were having same numbers (3BF 309068) and other 3 notes were of different numbers. All the said notes were seized in the presence of panchas, CW2-Nawab and CW3-Sadiq and the notes seized from Shankar Reddy, Jagadish and Nagaraj were sealed in three different covers. Thereafter, all the three were apprehended and taken to police station along with counterfeit notes. PW1 himself filed the complaint and registered the case in Crime No.24 of 2011 for the offence punishable under Sections 489B and 489C of Indian Penal Code and submitted the FIR to the Court as well as copies to the higher officer. Regarding the notes which were seized in the presence of panchas, mahazar was drawn as per as Exhibit P1.

PW2-Venkatesha, Police Constable, is a supporting witness. He has deposed on the lines of PW1.

PW3-Murali N.G., the Deputy Manager, Reserve Bank of India, Kolkata has deposed that on 23rd February, 2011 the complainant Jagajeevanramnagar Police, brought counterfeit notes said to have been seized and those notes were sent to Mysore and PW3 has examined those notes through special machine and said notes of Rs.1,000/-denomination, in all 111 in number, were counterfeit notes. PW3 has given his opinion as per Exhibit P4. He has also identified the sample seal Exhibit P5.

CW2-Sadiq has not supported the case of the prosecution.

PW5-Y.T. Venkatesh, is the Police Constable. He has deposed in evidence that on 22nd February, 2011 he was deputed to take the seized counterfeit notes for the purpose of examination to Reserve Bank of India and accordingly, he brought the said notes to RBI, Mysore. On 23rd February, 2011, he has given the said notes to the RBI and obtained acknowledgment. Further, he has deposed that on 18th April, 2011 he was again deputed to RBI for bringing the report. Accordingly, he had gone to Mysore and brought the report in a sealed cover.

Prosecution has examined PW6-Sadiq, who is an auto driver said to be one of the panch witnesses to Exhibit P1. He has deposed that about eleven months back, he was taken by the police to 11th Cross on Hosahalli Main Road. At that time, an autorickshaw bearing Registration No.KA-05/AA-1448 came from Hosahalli side and police checked the said auto. In the said auto, there were three persons and this witness has identified two persons, who were present at the time of evidence of this witness. Further, he has deposed that inmates of the said autorickshaw possessed 111 of Rs.1,000/-denomination, of which 60 notes, 21 notes and 30 notes were seized from Shankar Reddy, Jagadish and Nagaraj respectively. He has further deposed that police suspected the said notes and seized those notes under mahazar-Exhibit P1 and he has also put his signature on the mahazar.

PW7-Anjanappa, Sub-Inspector of Police, has deposed as to the investigation conducted by him.

On careful examination of the entire evidence on record, trial Court has convicted the accused for the offence under Sections 489B and 489C read with Section 34 of Indian Penal Code.

Before appreciation of the evidence on record, it is necessary to mention here as to the provisions of Sections 489B and 489C of Indian Penal Code. The same read as under:

"489B. Using as genuine, forged or counterfeit currency-notes or bank-notes.-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 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.

489C. 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."

A careful examination of the entire evidence on record, makes it clear that the accused were in possession of counterfeit currency notes 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. On perusal of the evidence placed before this court, though the independent witnesses have not supported to the case of the prosecution, I do not find any material on record to disbelieve the evidence of the official witnesses who have promptly seized the counterfeit notes under mahazar and immediately submitted the report to the court. The learned Sessions Judge has properly appreciated the evidence on record. Evidence is recorded in proper perspective and the accused have committed the alleged offence. Accordingly, prosecution has proved that the accused have committed the offence punishable under Section 489C of Indian Penal Code.

With regard to the offence under Section 489B of Indian Penal Code is concerned, the prosecution has not placed any material as to essential ingredients to constitute offence under the said Section. The essential ingredients to constitute the offence under said Section are:

"(i) selling, buying or receiving from any person; or otherwise trafficking in or using as genuine;

(ii) any forged or counterfeit currency note or bank note;

(iii) knowing or having reason to believe that such note as forged or counterfeit."

In the case on hand, the prosecution has not placed any material to show that accused have sold these counterfeit notes or from whom they have received the same, or trafficked in, or used the said currency as genuine as currency notes or Bank notes. Viewed from any angle, I do not find any essential ingredient to constitute the offence under Section 489B of IPC. However, the trial Court has convicted the accused for the offence under Section 489B of IPC, which is not sustainable under law. Accordingly, Point No.1 is answered, partly in the affirmative.

Regarding Point No.2:

The trial Court has passed sentence that the accused shall undergo simple imprisonment for one year each and shall pay fine of Rs.5,000/- each for the offence under Section 489C of Indian Penal Code, in default to undergo simple imprisonment for three months. While passing sentence, the trial Court has observed that the accused No.1-Shankar Reddy is aged 48 years and is having wife and daughter; he is an uneducated person; he has to look after his aged mother. Accused No.2-Jagadeesha is aged 51 years; is an autorickshaw driver; is having two daughters who are pursuing studies; he is suffering with heart problem and he has filed medical documents. Still he is taking treatment. He has to take medicine daily and he is also having breathing problem and he has to use machine. The said machine is placed before the court and the court has seen the same and entire family depends on him. Further, it is observed that Accused no.3-Nagaraja is aged about 43 years and he has studied up to 6th Standard. He is having wife and two children. The trial Court has observed that the accused 1 to 3 are uneducated, having wife and small children and are rustic villagers. It is submitted by the learned counsel for the appellants that accused were in judicial custody from 29th January, 2011 till 13th January, 2012. Accordingly, accused were in judicial custody for a period of 11 months and 14 days. The alleged offence under Section 489B is punishable with imprisonment of either description for a term which may extend to seven years or with fine or with both. The trial court has imposed the sentence to undergo simple imprisonment for one year. Considering the facts and circumstances of the case, the same may be reduced to 11 months 14 days, which is already undergone by the accused in judicial custody. Accordingly, I answer Point No.2, in the affirmative.

Regarding Point No.3:

For the aforestated reasons and discussions, I proceed to pass the following:

ORDER

i) Appeals are allowed in part;

ii) The judgment of conviction to the accused 1 to 3 under Section 489B read with Sections 34 of Indian Penal Code is set aside;

iii) Appellants are acquitted of the offences punishable under Section 489B read with Section 34 of Indian Penal Code;

iv) The Judgment of Conviction passed by the trial Court for the offence under Section 489C r/w 34 IPC is confirmed;

v) The sentence passed by the trial Court for the offence under Section 489C read with Section 34 of Indian Penal Code, is modified as under:

a) The accused 1 to 3 are sentenced to undergo simple imprisonment for a period of 11 months 14 days, which is already undergone by the accused

b) With regard to payment of the fine amount is concerned, the sentence of the trial Court is left unaltered;

c) The order sheet reveals that the fine amount is already deposited by the accused;

d) The period of detention undergone by the accused shall be given set off under Section 428 of Code of Criminal Procedure.

vi) Registry to send the copy of this judgment along with trial court records to the concerned Court.