Delhi High Court
Som Prakash vs State on 28 October, 2009
Author: V.K.Jain
Bench: V.K. Jain
* IN THE HIGH COURT OF DELHI AT NEW
DELHI
Reserved on: October 15, 2009
Pronounced on: October 28, 2009
+ (1) CRL.A. 426/1999
# SIRIDHAR ..... Appellant
! Through: Mr. R.M. Tufail with Mr.
Anwar A Khan and Mr. Vishal
Sehijpal, Mr. Sunil Sagar,
Advocates
Versus
$ STATE .....Respondent
^ Through: Mr. Amit Sharma, Addl.
PP for the State.
+ (2) CRL.A. 393/1999
# SOM PRAKASH ..... Appellant
! Through: Mr. R.M. Tufail with Mr.
Anwar A Khan and Mr. Vishal
Sehijpal, Mr. Sunil Sagar,
Advocates
Versus
$ STATE .....Respondent
^ Through: Mr. Amit Sharma, Addl. PP for the
State.
Crl. A. No. 426.99 & 393.99
Page 1 of 24
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether Reporters of Local newspapers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported in the
Digest? Yes
V.K.Jain, J.
These are two separate appeals against the judgment dated 27th July, 1999 and Order on Sentence dated 29th July, 1999, whereby the appellants were convicted under Sections 489-A, 489-C and 489-D of IPC, read with Section 34 thereof and were sentenced to undergo RI for 7 years each and pay fine of Rs.1000/- each or to under SI for one month each in default, under Section 489-A and were further sentenced to undergo RI for 5 years each and pay a fine of Rs.500/- each or undergo SI for 15 days in default, under Section 489-C. They were also sentenced to undergo RI for 7 years each and pay a fine of Rs.1000/- each or undergo SI for one month each, in default, under Section 489-D. Crl. A. No. 426.99 & 393.99 Page 2 of 24
2. The case of the prosecution in nutshell is that on 11th August, 1988 a secret information was received that one person with forged Special Bearer Bonds of Government of India was present near Volga Restaurant, Connaught Place, New Delhi and forged bearer bonds can be recovered if he is arrested. A raiding party was thereupon formed and the appellant Som Prakash was arrested from near Volga Restaurant, Connaught Place. He was carrying a file type raxin bag in his hand. On checking, the bag was found to contain 24 bearer bonds. He was interrogated and at his instance appellant Siridhar Prasad was arrested from his jhuggi in Janta Quarters, Shahdara, Delhi. On the search of his jhuggi 218 forged bearer bonds were recovered. One small wooden rod bearing digits 1, 2, 3 etc. and letters A, B, C was also recovered along with one small iron saw. One paper on which various digits were fixed was also recovered from his jhuggi.
3. As regards alleged recovery of forged Special Bearer Bonds, the case of the prosecution solely rests upon the testimony of police officials. PW-3 Inspector Crl. A. No. 426.99 & 393.99 Page 3 of 24 Gurdeep Singh, PW-7 Constable Richhpal Singh and PW- 8 SI Amar Singh are the witnesses of the alleged recovery. Inspector Gurdeep Singh has stated that on 11th August, 1988, while he was present at Regal Cinema along with other police officials, a secret information was received that one person in possession of forged barrier bonds was present near Volga Restaurant for selling the same to intended purchasers. He organized a raiding party and requested 2-3 public persons to join the same, but they declined. They then proceeded to Volga Restaurant and found appellant Som Prakash present there, with a folder file cover in his hand. The file cover could be opened and closed using a zipper. On opening the file cover, 24 bonds, Ex.P1 to P24 were recovered from it. On interrogation, he disclosed the names of some other persons including Siridhar and took the police team to the house of Siridhar in Janta Colony, Shahdara. Siridhar was found present there and 218 forged bearer bonds Ex. P25 to P242 were recovered from his jhuggi. One small iron saw and one sample of printed paper was also recovered Crl. A. No. 426.99 & 393.99 Page 4 of 24 from there. The wooden sticks were in the form of small blocks bearing digits and English alphabets words.
PW-7 Ct. Richhpal Singh and PW-8 SI Amar Singh have corroborated the deposition of PW-3 as regards recovery from the possession of the appellants.
4. PW-5 Mr. G.D. Dhingra, Works Manager, Indian Security Press, Nasik examined the Special Bearer Bonds alleged to have been recovered from the possession of the appellants and found the same to be forged.
5. In their statement under Section 313 of Cr. P.C., the appellants denied the alleged recovery from them and stated that since the police could not arrest the real culprit, they implicated them in this case, to save their skin.
6. I do not see any reason to disbelieve the testimony of PW-3 Inspector Gurdeep Singh, PW-7 Ct. Richhpal and PW-8 Amar Singh as regards recovery of Special Bearer Bonds from the possession of appellants. The appellants do not claim that there was any enmity or ill Crl. A. No. 426.99 & 393.99 Page 5 of 24 will between them and any of these witnesses. Therefore, there could have been no reason for them to depose falsely against the appellants and implicate them in a false case. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon‟ble Supreme Court in Tahir Vs. State, (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
7. It was contended by the learned counsel for the appellants that no public witnesses were joined in the raiding party despite the fact that there are a number of shops situated in the same block in which Volga Restaurant is situated and therefore any of them could Crl. A. No. 426.99 & 393.99 Page 6 of 24 have been requested to be a witness to the recovery. It can not be disputed that the public does not want to get dragged in police and criminal case and wants to avoid them, because of long drawn trials and unnecessarily harassment. Similar view was taken in Manish Vs. State, 2000 VIII AD (SC) 29 and in A. Bhai Vs. State of Gujrat, AIR 1980 SC 696. We can‟t be oblivious to the reluctance of a common man to join such raiding parties organized by the police, lest they are compelled to attend Police Station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Hence, no adverse inference on account of non-joining of public witnesses in such raids should be drawn.
8. It was also pointed out by the learned counsel for the appellants that no decoy customer was sent by police for purchase of these Special Bearer Bonds from the appellants despite having prior information. In my view, the contention has no merit. No one is likely to sell forged bonds to a stranger. Therefore no useful Crl. A. No. 426.99 & 393.99 Page 7 of 24 purpose would have been served by appointing a decoy customer and asking him to go to appellant Som Prakash and ask for forged bonds from him. That, in fact, would have been counterproductive and would have alerted the appellants. It was lastly contended that no evidence has been collected by the Investigating Officer to prove where these forged bonds were printed and even the Blocks alleged to have been seized from the appellant Sridhar were not sent to the laboratory to find out whether those very Blocks were used for printing the forged bonds or not. The inability or failure of the Investigating Officer to find out the place where these bonds were printed or possibly his having let off the printer has no bearing on the recovery of these bonds and cannot be a valid ground for acquittal of the appellants on this ground alone. Similarly, failure of the investigating agency to send the Blocks, alleged to have been recovered from the appellant Sridhar, to the Laboratory cannot be a valid ground to reject the recovery of forged bonds from the appellants if the recovery otherwise stands duly proved. Since, in my Crl. A. No. 426.99 & 393.99 Page 8 of 24 view, these Special Bearer Bonds are not „bank notes‟ or „currency notes‟ and consequently charge under Section 489A, 489C or 489D does not stand prove against the appellants, failure of the investigating agency to send these Blocks to the laboratory becomes immaterial.
9. Special Bearer Bonds in such a huge quantity are not such thing as could have been planted by the police on the appellants from its own coffers. This is also not the case of the appellants in their statement under Section 313 of Cr. P.C. that these Special Bearer Bonds were recovered by the police from some other person and they have been implicated after letting that person off.
10. For the reasons given above, I confirm the finding that Special Bearer Bonds Ex. P-1 to P-24 were recovered from the possession of appellant Som Prkash and Special Bearer Bonds Ex. P-25 to P-242 were recovered from the possession of appellant Sridhar. The testimony of PW-5 Mr. G.D. Dhingra leaves no doubt that these Special Bearer Bonds are forged documents. Moreover, this is not the case of the appellants that Crl. A. No. 426.99 & 393.99 Page 9 of 24 these Special Bearer Bonds are genuine documents. Thus, both the appellants were found in possession of forged Special Bearer Bonds purporting to be issued by Government of India.
11. Section 489A of India Penal Code provides for punishment of a person who counterfeits or knowingly performs any part of the process of counterfeiting any currency note or bank note. Section 489C provides for punishment of a person who is found in possession of any forged or counterfeit currency note or bank note knowing or having reason to believe the same to be forged or counterfeited or intending to use the same as genuine or that it may be used as genuine. Section 489D provides for punishment of a person who makes or performs any part of the process of making or buys or sells or disposes of or has in his possession any machinery, instrument or material for the purpose of being used or knowing or having reason to believe that it is intended to be used for forging or counterfeiting any currency note or bank note.
Crl. A. No. 426.99 & 393.99 Page 10 of 24
12. The expression „bank note‟ has been defined in the Explanation to Section 489A of the Indian Penal Code, which reads as under:
"Explanation - For the purposes of this section and of sections 489B, [489C, 489D and 489E], the expression "bank note" means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the word, or issued by or under the authority of any State or Sovereign power, and intended to be used as equivalent to, or as a substitute for money."
An analysis of the definition given above would show that the following are the essential ingredients of a bank note -
(i) It should be a promissory note or encashment for payment of money to bearer on demand;
(ii) It should have been issued by any person carrying on business of banking or should have been issued by or under the authority of any State or sovereign power; and
(iii) It should be intended to be used as equivalent to or as a substitute for money.
Crl. A. No. 426.99 & 393.99 Page 11 of 24
13. The Bearer Bonds alleged to have been recovered from the possession of the appellant qualify the first and second requirement noted above, but, fail to qualify the third requirement. A perusal of the Special Bearer Bond would show that vide this document, President of India has promised to pay to the bearer, the amount indicated in the bond on expiry of a period of 10 years from the date of its sale. Thus, on expiry of 10 years from the date on which the Special Bearer Bond is issued, its bearer could have gone to any office or branch of Reserve Bank of India or State Bank of India or its subsidiary banks in India and claimed the amount equivalent to the value of the bond. It cannot be said that a bond which was encashable only after 10 years and that too at the branches of specified banks was intended to be used as equivalent to money or as a substitute for money. No one could have purchased any article in the market on payment by delivery of these Special Bearer Bonds. No one could have repaid his debt by delivery of a bearer bond. Neither amount indicated on the bond was payable immediately on Crl. A. No. 426.99 & 393.99 Page 12 of 24 demand unless 10 years had expired from the date of issue of bond nor could one have legally passed on these Bearer Bonds in lieu of currency notes.
14. Though, in view of the definition given in the explanation to Section 489A of the Indian Penal Code, the court is not to look upon the definition given elsewhere for the expression „bank note‟ but, even if one has to look for dictionary meaning, Special Bearer Bonds still do not qualify as „bank notes‟. Wikipedia defines „Bank Note‟ as under:
"A bank note (often known as a bill, paper money or simply a note) is a kind of negotiable instrument, a promissory note made by a bank payable to the bearer on demand, used as money, and in many jurisdictions is legal tender. Along with coins, bank notes make up the cash or bear forms of all modern money. With the exception of non-circulating high- value or precious metal commemorative issues, coins are used for lower valued monetary units, while bank-notes are used for higher values. However some coins may have a significant value depending on the condition and worth. "
Crl. A. No. 426.99 & 393.99 Page 13 of 24 One essential ingredient of a banknote, as per this definition is that it should be used as money. Since Special Bearer Bonds issued by Government of India were neither intended to be nor could not have been used as money, they cannot be said to be bank note as defined in Wikipedia.
15. Oxford Dictionary defines „bank note‟ as „bankers promissory notes specially from a central bank payable to the bearer on demand and serving as money." Since Special Bearer Bonds are not intended to serve as money, they are not covered under the definition of „bank note‟ as given in Oxford Dictionary.
Therefore, even if a most liberal interpretation is taken, it cannot be said that the Special Bearer Bonds issued by Government of India were banknote within the meaning of the explanation to Section 498A of Indian Penal Code.
16. The expression "currency note" has not been defined in Indian Penal Code, however, Oxford Crl. A. No. 426.99 & 393.99 Page 14 of 24 Dictionary defines „Currency‟ and „Currency note‟ as under:
"currency - the money or other commodity which is in circulation as a medium of exchange. "
"currency note - a note issued as a medium of exchange"
It cannot be said that Special Bear Bonds issued by Government of India could have been used as a medium of exchange. It cannot be treated at par with rupee and coins. It is not „money in circulation‟ as a medium of exchange.
17. Since the Special Bearer Bonds, alleged to have been recovered, from the possession of the appellant are neither bank note or currency note, office under Section 489A, 489B or 489D is not made out against either of them.
18. Though, charge under Section 489A, 489C and 489D of Indian Penal Code does not stand proved against the appellants as the Special Bearer Bonds are neither bank notes nor currency notes, offence under Crl. A. No. 426.99 & 393.99 Page 15 of 24 Section 474 of Indian Penal Code stands duly established against them. Section 474 of Indian Penal Code, to the extent it is relevant, provides for punishment of a person who has in his possession any document knowing the same to be forged and intending that the same fraudulently be used as genuine if the documents is of the description mentioned in Section 466 or 467 of the Code. In order to succeed for conviction under Section 474 of the Indian Penal Code, the prosecution is required to prove that (i) document was a forged document; (ii) the accused had the document in his possession; (iii) the accused knew it to be forged when he had it in his possession; (iv) the accused intended dishonestly or fraudulently, that the document should be used as genuine document.
19. In the present case, the testimony of PW-5 Shri G.D. Dhingra proves that Special Bearer Bonds Ex. P-1 to P-242 are forged documents. The prosecution has also been able to prove that these forged documents were found in possession of the appellants. This is not the case of the appellants that they did not know that Crl. A. No. 426.99 & 393.99 Page 16 of 24 these Special Bearer Bonds were forged documents. Their case is that these documents were not at all recovered from their possession. Knowledge and intention are state of mind which cannot be proved by direct evidence and have to be inferred from the attending circumstances. Possession of such bonds in a huge quantity coupled with denial of possession by itself is sufficient to infer the requisite knowledge and intention on the part of the appellants. This is also not the case of the appellants that these bonds were not intended to be used either by sale or by encashment on maturity. As provided in Section 106 of Evidence Act, when a fact is especially in the knowledge of a person the burden of proving that fact is upon him. No doubt, the fundamental principles of criminal case is that it is for the prosecution to prove the guilt attributed to the accused beyond reasonable doubt, but, when the prosecution has proved all that it could have and the circumstances proved by it point towards the guilt of the accused, in that case if there exists a fact which is only in the knowledge of the accused and that fact is Crl. A. No. 426.99 & 393.99 Page 17 of 24 compatible with his innocence it is for the accused to bring that fact in the notice of the court. When forged documents of this nature, which are not readily available in the market, are found in possession of a person, and he does not try to give any explanation for his possession, does not disclose the source from which the documents came to him doesn‟t say that the documents came into his possession without his having knowledge about their nature, doesn‟t say that he acquired them believing them to be genuine documents or doesn‟t say that they were left with him by someone, the court would be justified in drawing an inference of his having the required criminal knowledge and intent. Instead of giving any explanation for their possession of these forged documents the appellants have chosen to altogether deny the possession. When an accused is found in possession of such documents and he fails to give any satisfactory explanation as to how he came to possess them, and for what purpose they were in his possession, the inevitable inference is that he knew that the documents were not genuine and further that he Crl. A. No. 426.99 & 393.99 Page 18 of 24 fraudulently or dishonestly intended to use them for unlawful gains. In Gajjan Singh vs. State of Madhya Pradesh, AIR 1965 SC 1921, the accused, who was travelling in a separate truck, was present when his truck in possession of the driver was checked and forged permit produced by his driver was seized. The conviction of the accused under Section 471 read with Section 474 of Indian Penal Code was upheld.
20. The Special Bearer Bonds give an authority to their holder to receive the amount printed on the bond from the Reserve Bank of India or State Bank of India or any of its subsidiary banks in India. Hence, these are documents of the nature specified in Section 467 of Indian Penal Code and consequently, offence under Sec. 474 of IPC stands duly proved against the appellants.
21. Though the appellants were not charged and tried for the offence punishable under Section 474 of IPC, there is no legal impediment in convicting them under Section 474 of IPC as the offence under Section 474 of IPC stand established on the basis of very same evidence Crl. A. No. 426.99 & 393.99 Page 19 of 24 which was led to prove charges under Sections 489A, 489C and 489D of Penal Code.
Section 221 of the Code of Criminal Procedure which squarely applies to the present case reads as under:
"221. Where it is doubtful what offence has been committed - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
22. In J.D. Sharma and R.N. Tyagi Vs. State of U.P. and Anr, AIR 1960 SC 400, the appellant was initially Crl. A. No. 426.99 & 393.99 Page 20 of 24 convicted by the trial court for the offence under Section 467/471 of IPC. In appeal the High Court set aside the conviction and ordered re-trial with the directions for framing alternative charge under Section 477 A of Indian Penal Code against two of them and a charge for abetment and in the alternative for offences under Sections 467 and 477A should be framed against the third one. The Hon‟ble Supreme Court inter alia held as under:
"The provisions of Sections 236 and 237 are clear enough to enable a court to convict an accused person even of an offence with which he had not been charged if the court is of the opinion that the provisions of Section 236 apply, that is to say, if a single act is or a series of acts are of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, then the accused can be charged with having committed all or any of such offences, and any number of such charges can be tried at once; or he may be charged in the alternative with having committed some one of the said Crl. A. No. 426.99 & 393.99 Page 21 of 24 offences and by virtue of the provisions of Section 237 the accused although charges with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Section 236, can be convicted of the offence which he is shown to have committed, although he was not charged with it. In our opinion, therefore, the High Court erred in ordering a retrial of the appellants and should have decided, on the evidence before it, whether any offence had been committed by the appellants. We accordingly allow the appeals, set aside the orders of the High Court directing the retrial of the appellants and remand back the case to it for rehearing of the appeals filed by the appellants."
23. The provisions of Section 221 of Code of Criminal Procedure being identical to the provisions of the old Code relied upon by the Hon‟ble Supreme Court, it is legally permissible to convict the appellants under Section 474 of the Penal Code, as this court has come to the conclusion that since the Special Bearer Bonds Crl. A. No. 426.99 & 393.99 Page 22 of 24 recovered from them are not „bank notes‟ or „currency notes‟, but are documents of the nature specified in Section 467 of the Penal Code, the offence under Section 489A, 489C or 489D does not stand established though the offence under Section 474 clearly stands proved against them from the evidence led by the prosecution.
24. Even otherwise, no prejudice will be caused to the appellants, from their conviction u/s 474 of IPC, on the basis of evidence, already led by the Prosecution. The appellants knew very well that the charge against them during trial was that they were found in possession of forged Special Bearer Bonds. The evidence led by the prosecution proves that they were found in possession of Special Bearer Bonds. It is only on account of view taken by this court that the Special Bearer Bonds are not „bank notes‟ or „currency notes‟, that they cannot be convicted under Section 489A, 489C or 489D of IPC. But, since offence under Section 474 of IPC is clearly made out against them, there is no reason why the matter should be sent back for amendment of charge Crl. A. No. 426.99 & 393.99 Page 23 of 24 and fresh trial. Even otherwise, the offence having taken place way back in August, 1988, it will neither be just nor in the interest of the appellants to remand back the case after 21 years without any apparent advantage to either side.
For the reasons given in the preceding paragraphs, both the appellants are convicted under Section 474 of IPC. Keeping in view the fact that the offence took place more than 20 years ago and the appeals itself are pending for the last about 10 years, I am inclined to take a rather lenient view in the matter of sentence. The appellants are therefore sentenced to undergo RI for two years each and to pay a fine of Rs. 5,000/- each or to undergo Simple Imprisonment for three months, in default. They shall also be entitled to benefit under Section 428 of Cr. P.C. One copy of this order, alongwith Trial Court Record, be sent to Trial Court within 3 days for committing the appellants to prison, to serve the remaining sentence, if any.
(V.K. JAIN) JUDGE October 28, 2009/acm Crl. A. No. 426.99 & 393.99 Page 24 of 24