Allahabad High Court
Syed Mohd. Nadeem vs State Of U.P. on 30 May, 2020
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 28.02.2020
Delivered on 30.05.2020
1. Case :- CRIMINAL APPEAL No. - 6511 of 2009
Appellant :- Syed Mohd. Nadeem
Respondent :- State of U.P.
Counsel for Appellant :-Ashok Pandey
Counsel for Respondent :- Govt. Advocate
Connected With
2. Case :- CRIMINAL APPEAL No. - 6459 of 2009
Appellant :- Bal Kishan Agarwal
Respondent :- State of U.P.
Counsel for Appellant :- Vinay Saran, Pradeep Kumar Mishra
Counsel for Respondent :- Govt. Advocate
Connected With
3. Case :- CRIMINAL APPEAL No. - 6541 of 2009
Appellant :- Km. Daljeet Lali
Respondent :- State of U.P.
Counsel for Appellant :- Hasan Abbas
Counsel for Respondent :- Govt. Advocate
Connected With
4. Case :- CRIMINAL APPEAL No. - 6545 of 2009
Appellant :- Yogesh @ Jagesh Prajapati
Respondent :- State of U.P.
Counsel for Appellant :- Hasan Abbas
Counsel for Respondent :- Govt. Advocate
Connected With
5. Case :- CRIMINAL APPEAL No. - 6679 of 2009
Appellant :- Nasiruddin
Respondent :- State of U.P.
Counsel for Appellant :- B.N. Pandey
Counsel for Respondent :- Govt. Advocate
Connected With
6. Case :- CRIMINAL APPEAL No. - 6738 of 2009
Appellant :- Sri Ram Agarwal
Respondent :- State of U.P.
Counsel for Appellant :- B.N. Pandey
Counsel for Respondent :- Govt. Advocate
Connected With
7. Case :- CRIMINAL APPEAL No. - 6807 of 2009
Appellant :- Ajay Khandelwal
Respondent :- State of U.P.
Counsel for Appellant :- B.N. Pandey
Counsel for Respondent :- Govt. Advocate
Hon'ble Naheed Ara Moonis,J.
Hon'ble Raj Beer Singh,J.
Delivered by Hon'ble Raj Beer Singh, J
1. The aforementioned seven appeals have been preferred on behalf of the appellants against the common judgment and order dated 22.10.2009, hence, all these appeals are being decided by this common judgment. These appeals have been filed against the common judgment and order dated 22.10.2009 passed by learned Additional Sessions Judge/Fast Track Court No. 2, Agra in Session Trial No. 772/1999 (State vs. Bal Kishan Agarwal and Four Others), under Sections 234, 235, 236, 240, 471, 498-A, 489-B, 489-C, 489-D IPC, S.T. No. 773/1999 (State vs. Yogesh Kumar alias Jagesh Prajapati and Two Others), under Sections 234, 235, 236, 240, 471, 498-A, 489-B, 489-C, 489-D IPC, S.T. No. 772-A/1999 (State vs. Rampal), under Sections 234, 235 IPC, S.T. No. 773-A/1999 (State vs. Rampal), under Sections 234, 235 IPC, S.T. No. 742/2000 (State vs. Sri Ram Agrawal), under Sections 489-A, 489-B, 489-C IPC and S.T. No. 822/2000 (State vs. Ajay Khandelwal), under Sections 489-A, 489-B, 489-C IPC, police station Sadar Bazar, district Agra, whereby the accused-appellants have been convicted and sentence as under:-
Sl.No. Name of accused-appellants Conviction under Section/s Sentence 1 Bal Kishan Agarwal 489-B IPC Ten years RI and fine of Rs 50,000/-1
489-C IPC Five years RI and fine of Rs 25,000/-2
Nasiruddin 489-B IPC Ten years RI and fine of Rs 50,000/-2
489-C IPC Five years RI and fine of Rs 25,000/-3
Ajay Khandelwal 489-B IPC Ten years RI and fine of Rs 50,000/-3
489-C IPC Five years RI and fine of Rs 25,000/-4
Sri Ram Agarwal 489-B IPC Ten years RI and fine of Rs 50,000/-4
489-C IPC Five years RI and fine of Rs 25,000/-5
Syed Mohd. Nadeem 235 IPC Three years RI and fine of Rs. 5,000/-5
236 IPC Five years RI and fine of Rs. 10,000/-5
240 IPC Seven years RI and fine of Rs. 10,000/-5
471 IPC Five years RI and fine of Rs. 10,000/-5
489-A IPC Life Imprisonment and fine of Rs. 50,000/-
5489-B IPC Life Imprisonment and fine of Rs. 50,000/-
5489-C IPC Five years RI and fine of Rs. 10,000/-
5489-D IPC Life Imprisonment and fine of Rs. 50,000/-
6Km. Daljeet Lali 235 IPC Three years RI and fine of Rs. 5,000/-
6489-A IPC Life Imprisonment and fine of Rs. 50,000/-
6489-D IPC Life Imprisonment and fine of Rs. 50,000/-
7Yogesh @ Jagesh Prajapati 489-B IPC Ten years RI and fine of Rs. 10,000/-
All the sentences were to run concurrently. In default of payment of time, they were directed to suffer varying additional imprisonment. However, accused-appellants Bal Kishan Agarwal, Nasiruddin, Ajay Khandelwal and Sri Ram Agarwal were acquitted of the charge under Section 489-A IPC. Accused-appellant Syed Mohd. Nadeem was also acquitted of the charge under Section 234 IPC. Accused-appellant Km. Daljeet Lali was acquitted of the charge under Sections 234, 471, 489-B IPC and accused-appellant Yogesh alias Jagesh was acquitted of the charge under Sections 234, 489-A, 489-D IPC. Co-accused Rampal was acquitted of all the charges levelled against him. Another co-accused Haribabu Jatav had absconded and did not face the trial.
2. Prosecution version in brief is that on 30.03.1999 after receipt of secret information, Incharge of Police Station Sadar Bazar, namely Rajendra Singh along with S.I. Sharada Prasad Dixit, S.I. Surendra Bahadur Singh, S.I. P.P. Raghav, S.I. K.L. Sagar, A.S.I. Shivram Singh and some other police personnels reached at Cantt. Tiraha, Agra and tried to join some public witnesses, however, none agreed. Thereafter, at about 11:00 AM, two persons were seen coming from railway station side, who were pointed out by the informer. Both these persons were apprehended by the above-stated police party. Identity of one of them was revealed as Bal Kishan Agarwal and total 25 counterfeit currency notes of Rs. 100/ each were recovered from his possession. Second person has disclosed his identity as Nasiruddin and total 40 counterfeit currency notes of Rs. 100/- each were recovered from his possession. On interrogation, both these persons have disclosed that one Syed Mohd. Nadeem, resident of Civil Lines, Aligarh, manufactures counterfeit currency notes on large scale and they can get counterfeit currency and instruments used in counterfeiting notes, recovered from there. The counterfeit currency notes recovered from above-stated accused Bal Kishan Agarwal and Nasiruddin were sealed and taken into possession vide recovery memo Ext. Ka-1. On the basis of recovery memo Ext. Ka-1, a case was registered at 12:30 PM on 30.03.1999 vide crime no. 322/1999, under Sections 234, 235, 236, 239, 240, 241, 242, 243, 420 IPC and entry was recorded in general diary regarding registration of the case.
3. On the same day, police party including SI Sharda Prasad Dixit (PW 1) and PW 2 Inspector Rajender Singh took accused-appellant Nasiruddin to Aligarh and reached at printing press of accused-appellant Syed Mohd. Nadeem. Accused-appellant Nasiruddin has pointed out Mohd. Nadeem, who was present there. In search of printing press premises, 35 packets of Rs. 100/- currency notes were recovered from a briefcase lying in the room. Each packet was containing counterfeit currency of Rs. 10,000/- and in this way, total counterfeit currency of Rs. 3,50,000/- was recovered. Besides the above-currency notes, 25 counterfeit coin of Rs. 5, 9 semi-manufactured coin of Rs. 5, 3 original coin of Rs. 5, American currency of 100 dollar, negative of Rs. 100 currency note and six National Emblem, 8 trail of Rs. 5 coin, one blank diploma-sheet of Aligarh Muslim University, four piece of diploma Chemist, six piece of Master of Theology Degree, five Bachelor of Law Degree, 37 Bachelor of Law Degree, 7 Bachelor of Medicine and Bachelor of Surgery Degree, some marksheet of Jamia Urdu Marksheet, 10 Marksheet of Secondary School Certificates, 13 Diploma of Engineering Degree, 15 Master of Arts Degree, one Master of Library Science Degree, 7 Master of Computer Science Degree, 16 Bachelor of Commerce Degree, 7 Master of Philosophy Degree, 16 Master of Business Administration Degree, One Doctor of Medicine Degree, 4 Negatives of Certificates of C.B.S.E., Delhi and U.P. Board, some prints of currency notes on papers, one negative of Rs 1000/ note, one note of Rs 100/, one dye machine with electric motor, 4 dye piece iron, 2 two dye for cutting groups of coins, 2 castic dye, 11 semi manufactured coins of Rs 5/, 26 proforma of character certificates of AMU and 16 sheet papers were also recovered. All these articles/documents were sealed and taken into possession vide recovery memo Ext. Ka-2.
4. It is also the case of prosecution that on 31.03.1999 after receipt of secret information that two persons having counterfeit currency are likely to come, a police party comprising PW 3 SI Raghuraj Bhati and PW 4 SI Danvir Singh and other police officials reached near 'Only Restaurant', Agra. At about 12:20 PM two persons coming from Agra Cantt. side were pointed out by the informer. As the police party tried to apprehend them, they started running by retracing their steps, however, one of them was apprehended at Mall Road near Sonar Hotel, Agra, whereas another person succeeded in running away after throwing Rs. 100 currency notes on the road. The person, who was apprehended there, has disclosed his name as Ajay Khandelwal and he has stated that the person, who has ran away, was Sri Ram Agarwal. Total 110 counterfeit currency notes of Rs. 100 denomination were recovered from accused-appellant Ajay Khandelwal. The currency notes thrown by accused-appellant Sri Ram Agarwal were collected from road, which were total 30 counterfeit currency notes of Rs. 100/ each-. From accused-appellant Ajay Khandelwal, 16 negatives of certificates and degrees of secondary board U.P., University of Rajasthan and Aligarh University were also recovered. Recovered currency notes and other documents were taken into possession vide recovery memo Ext. Ka-3. On the basis of recovery memo Ext. Ka-3, a case was registered against accused-appellants Ajay Khandelwal and Sri Ram Agarwal under Sections 231, 234, 235, 236, 239, 240, 241, 242, 243, 420, 489, 467, 468, 471 IPC as case crime no. 327 of 1999 at 2:25 PM on 31.03.1999.
5. It is further the case of prosecution that after recovery from accused-appellant Nadeem, on the basis of statement of accused-appellant Nadeem, on 30.03.1999 PW-7 R. K. Singh, Circle Officer, Sadar Bazar, along with S.I. K. D. Pathak (PW 5), S.I. Jameel Mohd. Rawat and S.I. R. K. Sisodiya and some police constables went to Dehradun. On 31.03.1999 they conducted a raid at house No. 10, Prakash Lok Phase-II, within jurisdiction of P.S. Kotwali, Dehradun. This house belongs to accused-appellant Km. Daljeet Lali, who was found present there. In search of said premises, some articles like white thin papers, two papers having impression of numbers in red ink, punch machine, staple, plate of metal, press machine , iron cutting blade, 4 dye, hand roller etc. and some other tools were recovered from there, which were taken into possession vide recovery memo Ext. Ka-4. Two big printing machines and heavy cutter were left at the spot and the said room was locked and sealed vide memo of Ext. Ka-5. One Ambassador Car No. U.P. 7 A 8474 was also lying there and from its dicky, four number plates were recovered. The car and number plates were taken into possession vide recovery memo Ext. Ka-6. In search of accused-appellant Km. Daljeet Lali, Rs. 12,000/- were recovered from her possession. Besides that some keys were also recovered from accused-appellant Km. Daljeet Lali. The said seized amount and keys were taken into possession vide recovery memo Ext. Ka-7.
6. During course of investigation statements of witnesses were recorded and after completion of investigation all the accused-appellants along with co-accused Ram Pal were charge-sheeted.
7. While framing charges, accused-appellant Sri Ram Agarwal, Ajay Khandelwal, Balkishan Agarwal and Nasiruddin were charged under section 489-A, 489-B, 489-C IPC, accused-appellant Mohd Nadeem was charged under section 234, 235, 236, 240, 471, 489-A, 489-B, 489-C, 489-D IPC, accused-appellant Km. Daljeet Lali was charged under section 234, 235, 471, 489-A, 489-B, 489-D IPC and accused-appellant Yogesh alias Jagesh Prajapati was charged under section 234, 489-A, 489-B, 489-D IPC by the Trial Court.
8. So as to hold the accused persons guilty, prosecution has examined nine witnesses i.e. PW-1 S.I. Sharda Prasad Dixit, PW-2 Inspector Rajender Singh, PW-3 S.I. Raghuraj Singh Bhati, PW-4 S.I. Danvir Singh, PW-5 S.I. Kuber Dutt Pathak, PW-6 S.I. Netrapal Singh, PW-7 Rajender Kumar Singh, PW-8 S.I. Navrang Singh and PW-9 S.I. Rakesh Kumar Sisodiya. After prosecution evidence, accused-appellants were examined under Section 313 Cr.P.C, wherein they have denied prosecution evidence and claimed false implication.
9. In defence on behalf of the accused-appellant Mohd Nadeem, his brother Mohd. Aleem (DW-1) and wife Anzum Nadeem (DW-2) were examined. Other accused-appellants have not led any evidence in their defence.
10. After hearing and analysing the evidence on record, learned trial court convicted all the accused-appellants vide impugned judgment and order dated 22.10.2009 and sentenced them, as stated in the opening paragraph of this judgment.
11. Being aggrieved by the impugned judgment and order of the learned trial court, accused-appellant Syed Mohd. Nadeem has preferred Criminal Appeal No. 6511 of 2009, accused-appellant Bal Kishan Agarwal has preferred Criminal Appeal No. 6459 of 2009, accused-appellant Km. Daljeet Lali has preferred Criminal Appeal No. 6541 of 2009, accused-appellant Yogesh alias Jagesh Prajapti has preferred Criminal Appeal No. 6545 of 2009, accused-appellant Nasiruddin has preferred Criminal Appeal No. 6679 of 2009, accused-appellant Sri Ram Agarwal has preferred Criminal Appeal No. 6738 of 2009 and accused-appellant Ajay Khandelwal has preferred Criminal Appeal No. 6807 of 2009.
12. We have heard at length Sri Ashok Pandey, learned counsel for accused-appellant Syed Mohd. Nadeem, Sri Vinay Saran, Senior Advocate assisted by Sri Pradeep Kumar Mishra, learned counsel for accused-appellant Bal Kishan Agarwal, Sri Hasan Abbas, learned counsel for accused-appellants Km. Daljeet Lali and Yogesh alias Jagesh Prajapati, Sri B.N. Pandey, learned counsel for accused-appellants Nasiruddin, Sri Ram Agarwal and Ajay Khandelwal and Sri Ashwani Prakash Tripathi and Sri D. K. Singh, learned Additional Government Advocates for the State.
13. Sri Ashok Pandey, learned counsel for accused-appellant Syed Mohd. Nadeem has argued that there is no independent witness of alleged recovery shown from possession of accused-appellant. As per prosecution version, alleged recovery was made on the basis of information disclosed by accused-appellants Bal Krishna Agrawal and Nasiruddin, but there is nothing to indicate that their disclosure statements were recorded by police and thus, alleged recovery has not been effected in accordance with the provisions of Section 27 of Indian Evidence Act. There is no categorical evidence that the recovered currency notes were counterfeit and only some counterfeit notes were sent for examination to Bank Note Press, Devas. It was stated that there are serious contradictions and inconsistencies in the statements of witnesses. As per PW-1 S.I. Sharda Prasad Dixit, they reached at printing press of accused-appellant Nadeem at about 04.30-5.00 PM, whereas as per PW 5 Kuber Dutt Pathak, police party has already left at 4:00 pm for Dehradun, which makes it doubtful that on the statement of Nadeem, police have gone to Dehradun.. There is no evidence that printing press and other articles seized from alleged printing press were being used for manufacturing of counterfeit currency notes or coins. No such material has been recovered from there, which might have been used in manufacturing of counterfeit currency notes. The ingredients of the offences, under which accused-appellant has been convicted have not been made out at all. It was submitted that accused-appellant Syed Mohd. Nadeem has been convicted and sentenced in an arbitrary manner without considering whether the ingredients of such offences are made out or not. It was further submitted that in view of above stated facts and circumstances, the whole prosecution version becomes doubtful but the learned trial court has not appreciated the evidence in correct perspective and committed manifest error by convicting the accused-appellant Syed Mohd. Nadeem, who is still languishing in jail since the date of his arrest i.e. 30.05.1999.
14. Sri Vinay Saran, Learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for accused-appellant Bal Kishan Agarwal has argued that as per prosecution version, accused-appellant Balkishan Agarwal was apprehended after receipt of secret information but despite that no public or independent witness was joined. As per prosecution alleged recovery was effected in mid of city but there is no independent witness of said recovery. Further there is no such expert report that alleged currency-notes recovered from accused-appellant Balkishan, were counterfeit. In the absence any such expert report, accused-appellant Balkishan Agarwal cannot be convicted. The learned trial court has only presumed that all the notes were of similar series. It has not been proved at all that genuine notes of the same series or number were in the market with the fake one. No question about the alleged expert report was put him in his examination under Section 313 Cr.P.C. It was further submitted that there are material contradictions and inconsistencies in prosecution version and that there is no reliable evidence against accused-appellant Balkishan Agarwal.
15. Sri Hasan Abbas, learned counsel for accused-appellants Yogesh @ Jagesh Prajapati and Km. Daljeet Lali has argued that as per prosecution version accused-appellants were arrested on 31.03.1999 at Dehradun on the basis of the statement of accused-appellant Syed Mohd. Nadeem, but there is nothing to show that any such statement of said Nadeem was recorded and that no such statement has been proved. Alleged recovery has been shown from mid of city, but despite that there is no independent witness of alleged recovery. The case property, allegedly seized from possession of accused-appellant Km. Daljeet Lali, was never produced in Court. There is no evidence that alleged printing press and machines, seized from there, were being used or were used in manufacturing of counterfeit currency or coins. Similarly there is no such expert evidence that counterfeit currency or coin can be manufactured from said printing press and machines. There is no evidence that alleged number plates were forged or counterfeit. It was stated that accused-appellant Km. Daljeet Lali was residing at Najibabad and co-accused Ram Pal was her tenant at her Dehradun premises and thus, she has no concern with alleged recovery. Learned trial court has not considered this fact that alleged premises at Dehradun was in possession of tenant Ram Pal (co-accused). No counterfeit currency notes were recovered from possession of accused-appellants Km. Daljeet Lali and Yogesh @ Jagesh Prajapati. PW-5 Kuber Dutt Pathak in his cross-examination has stated that he has not seen any printing of currency notes and he cannot say whether the alleged currency notes were printed from printing press seized at the spot. No dye was recovered from there so as to indicate that any printing of counterfeit currency notes were being done there. Alleged machines and printing press seized at premises of accused-appellant Km. Daljeet Lali for printing of valid and lawful material and thus, printing machines/printing press has nothing to do with printing of counterfeit currency notes. There are contradictions and inconsistencies in the statements of the witnesses. PW-5 Kuber Dutt Pathak has stated that they have left Aligarh on 30.03.1999 at 4:00 pm, whereas other witnesses have stated that they were present at printing press of accused-appellant Syed Mohd. Nadeem at 5:00 pm and thus, the whole prosecution version is doubtful as alleged recovery of articles are not legally proved to connect them with the offence. It was submitted that no prima facie case is made out against both the accused-appellants. Regarding accused-appellant Yogesh, whose ambassador car was seized, there is no report that number plates of the car was forged or fabricated.
16. Sri B. N. Pandey, learned counsel for accused-appellants Nasiruddin, Ajay Khandelwal and Sri Ram Agarwal has stated that there is no independent witness of recovery shown from all the accused-appellants. There is no evidence that currency notes recovered from them were counterfeit notes. Alleged recovered currency-notes were never sent for expert examination and there is no expert report that currency recovered from them was counterfeit. It was submitted that accused-appellant Ajay Khandelwal is a resident of Mathura and that he was arrested from Mathura, but his arrest was falsely shown at Agra. Regarding accused-appellant Nasiruddin, it was stated that he is a handicapped person with 70% disability and earlier in a case, he has deposed against Inspector K.P. Singh and due to that reason he was falsely implicated in this case. Similarly, accused-appellant Ajay Khandelwal has also deposed against said Inspector K.P. Singh and he was also implicated in this case due to this reason. It has been argued that no case against accused-appellants Nasiruddin, Sri Ram Agarwal and Ajay Khandelwal, is made out. The charge-sheet was submitted in the absence of any expert report about machine used in manufacturing counterfeit currency notes. No independent witness present at the time of search and seizure of any of the incriminating articles was joined. The statement of Nadeem recorded at the time of search is not on record to connect the accused-appellants.
17. Per contra, it has been submitted by learned A.G.A. that there is sufficient and reliable evidence against all the accused-appellants. Huge quantity of counterfeit currency notes has been recovered from possession of accused-appellant Syed Mohd. Nadeem. From expert report Ext. Ka-13, issued by Bank Note Press, Devas, it is apparent that the seized currency were counterfeit currency notes. Similarly the series and numbers of the currency notes recovered from other accused-appellants clearly shows that all were counterfeit currency notes. It was pointed out that notes recovered from accused-appellant Balkishan were of series 8RP 142007 to 142031, notes recovered from accused-appellant Ajay Khandelwal and Ram Agarwal were of 143088 to 143099 and 143002 to 143019 series respectively and the currency-notes recovered from the press of accused-appellant Nadeem were of 141601 series, thus in view of similarity in series number it appears that all recovered currency-notes were counterfeited. Learned State counsel submitted that facts of the case shows that counterfeit currency notes were being printed on a large scale and all the accused-appellants were involved therein. The witnesses for recovery have clearly stated that recovery of counterfeit currency notes and other incriminating articles were made in the manner as narrated in the recovery memo. Minor contradictions and inconsistencies cannot be made the sole basis to disbelieve the entire prosecution version. It has been submitted that trial Court has appreciated the entire evidence and that conviction of accused-appellants is based on clinching evidence on record, hence, it calls for no interference.
18. We have considered rival submissions and perused record.
19. PW 1 SI Sharda Prasad Dixit stated that on 30.03.1999, after receipt of secret information, he along with Inspector incharge of PS Sadar Bazar, namely Rajender Prasad, SI Surender Bahadur, SI VP Raghav, SI KL Sagar and other police officials reached at Cantt. Tiraha. At about 11.00 AM two persons, coming from railway station side, were apprehended. Their identity was revealed as Balkishan and Nasiruddin. In their search, 25 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Balkishan Agarwal and 40 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Nasiruddin. Recovered currency notes were sealed and taken in to possession vide recovery memo exhibit ka-1. On interrogation, they have disclosed that one Nadeem resident of Aligarh manufactures counterfeit currency and they have also brought these currency notes from him. Both the accused Balkishan and Nasiruddin were brought to the police station and a case was got registered.
PW-1 further stated that on the basis of statements of aforesaid two accused persons, police team took Nasiruddin to Aligarh and reached at Lucky Press, where accused-appellant Nadeem was found present. In search, 35 packets of Rs 100/ denomination (each packet having 100 notes of Rs 100/ denomination) were recovered from a brief case, lying in said room of printing press. Besides this counterfeit currency of Rs. 3,50,000/-, 25 counterfeited coins of denomination of Rs. 5, five semi-manufactured coins of Rs. 5, 3 real coins of Rs. 5/- each, American dollar of 100/-, a negative of Rs. 100/-, six Ashok Laat, five negatives of Rs. 5 coins, blank diploma sheet of AMU, four degree of diploma Chemist, six degree of Master of Zoology, five degree of bachelor of law, 37 bachelor of Art, 7 degree MBBS, 10 secondary school marksheets of Jamia Urdu, 15 degree of Master of Arts, master of library science, computer science, B.Com, Master of Philosophy, business management, negative Kendriya Shiksha Board, New Delhi, machine used for manufacturing coins, four iron dye used in manufacturing coins, 17 wooden blocks, 16 sheets of white paper and other tools were recovered. All the recovered counterfeit currency, forged documents, certificates and other items were sealed at spot and the same were taken in to possession vide recovery memo exhibit ka-2. Accused-appellant Nadeem was arrested at about 05.00 PM on 30.05.1999, while recording statement PW-1 has identified the recovered cash and other items, while were marked as material exhibit 1 to 258.
20. PW-2 Inspector Rajender Singh, the then SHO of PS Sadar Bazar, Agra, has also made a similar statement like that of PW-1 Sharda Prasad Dixit and stated that on 30.03.1999, after receipt of secret information that two persons, having counterfeit currency, are likely to come from Cantt railway station side, he along with SI Sharda Prasad Dixit, SI Surender Bahadur, SI VP Raghav, SI KL Sagar and other police officials reached at Cantt Tiraha and tried to join some public witness but none agreed. At about 11.00 AM, accused-appellants Balkishan and Nasiruddin were apprehended, who coming from railway station side, at pointing out of an informer. In their search, 25 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Balkishan Agarwal and 40 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Nasiruddin. Recovered currency notes were sealed and taken in to possession vide recovery memo exhibit ka-1. On interrogation, they have disclosed that accused-appellant Nadeem of Aligarh makes counterfeit currency and they have also brought these currency notes from him. Both the accused Balkishan and Nasiruddin were brought to the police station and a case was got registered. PW 2 Rajender Singh further stated that on the basis of statements of said two accused persons, police team took Nasiruddin to Aligarh and reached at Lucky Press. Accused-appellant Nadeem was found present there. In search, 35 packets of Rs 100/ denomination (each packet having 100 notes of Rs 100/ denomination) were recovered from a brief case, lying in room at printing press. Besides this counterfeit currency of Rs. 3,50,000/-, 25 counterfeited coins having the denomination of Rs. 5, five semi-manufactured coin of Rs. 5, 3 real coins of Rs. 5/- each, American dollar of 100/-, a negative of Rs. 100/- each, six Ashok Laat, five negatives of Rs. 5 coins, blank diploma sheet of AMU, four degree of diploma Chemist, six degree of Master of Zoology, five degree of bachelor of law, 37 bachelor of Art, 7 degree MBBS, 10 secondary school marksheets of Jamia Urdu, 15 degree of Master of Arts, master of library science, computer science, B.Com, Master of Philosophy, business management, negative Kendriya Shiksha Board, New Delhi, machine manufacturing the coins, four iron dye used in manufacturing the coins, 17 wooden blocks, 16 sheets of white paper and other tools used in manufacturing were recovered. All the recovered counterfeit currency, forged documents, certificates and other items were sealed at the spot and the same were taken into possession vide recovery memo exhibit ka-2. During his statement, PW 2 has identified the recovered cash and other items as material exhibit 1 to 11.
21. PW-3 S.I. Raghuraj Singh Bhati has stated that on 31.03.1999, while he was posted as incharge of police post Infantry Line, he along with Inspector Rajender Singh, SI Sharda Prasad Dixit, SI VP Raghav, SI HB Singh Bhadauria and other police officials was present at Takkar road. After receipt of a secret information, they reached near 'Only restaurant' and the informer has pointed out two persons, who were coming from Cantt side. One of them namely accused-appellant Ajai Khandelwal was apprehended by them and 110 counterfeit currency notes of Rs 100/ denomination were recovered from right side pocket of his pant. Besides these currency notes, 16 certificates of Senior Secondary Board, UP, University of Rajsthan and Aligarh Muslim University were also recovered from his possession. However, his companion succeeded in running away from spot after throwing currency notes of Rs 100/ on road. The identity of that person was revealed as Sri Ram Agarwal, who fled away from the spot spreading notes. Currency notes, thrown by him on the road, were collected and same were 30 notes of Rs 100/ denomination. The recovered currency notes and the forged documents were sealed at spot and taken in to possession vide recovery memo exhibit ka-3.
PW-3 Raghuraj Singh Bhati has further stated that investigation of crime No. 322/99 was conducted by him. He has recorded statements of witnesses and site plan exhibit ka-12 was prepared.
22. PW 4 SI Danvir Singh has made a statement, similar to PW 3 Raghuraj Bhati and stated that on 31.03.1999 after receipt of a secret information, he along with Inspector Rajender Singh, SI Sharda Prasad Dixit, SI VP Raghav, SI HB Singh Bhadauria, SI Raghuraj Bhati and other police officials has reached near 'Only restaurant' and the informer has pointed out two persons, who were coming from Cantt side. One of them ie accused-appellant Ajai Khandelwal was apprehended and 110 counterfeit currency notes of Rs 100/ denomination were recovered from right side pocket of his pant. Besides this, 16 certificates of Senior Secondary Board, UP, University of Rajasthan and Aligarh Muslim University were also recovered from his possession. However, his companion succeeded in running away from spot after throwing currency notes of Rs 100/ on road. The identity of that person was revealed as Sri Ram Agarwal. Currency notes, thrown by him on the road, were collected and same were found total 30 notes of Rs 100/ denomination. The recovered currency notes and alleged forged documents were sealed at spot and taken in to possession vide recovery memo exhibit ka-3.
23. PW 5 SI Kuber Dutt Pathak has stated that on 30.03.1999 he along with Circle Officer R.K. Singh, SI Jamil Ahamed, SI R.K. Sisodiya and some other police officials went to Dehradun from Agra. After reaching at Dehradun, they took SI Ajaipal Gautam and one contable from PS Kotwali, Dehradun with them and conducted search of house No. 10, Prakash Lok, Phase II, belonging to accused-appellant Km Daljeet Lali, who was already arrested. In search, 6 rims white thin paper, which is used in making counterfeit currency, two papers having number 141099 in red colour, one punch machine, two packets of staple, one metal strip, one aluminium plate, one heavy electric press and several other tools were recovered. All the recovered tools and items were taken in to possession vide recovery memo exhibit ka-4. Besides the said articles, two big printing press, used for printing of currency, were sealed at the spot. As these machines were quite heavy, thus these machines were left at the spot of recovery and the room was sealed. These machines were taken in to possession vide memo exhibit ka-5. PW 5 further stated that one ambassador car having number plate of UP 07A- 8474 and 4 forged number plates were also recovered and the same were taken into possession by recovery memo exhibit ka-6. It was further stated that keys of room, in which machines were sealed, were given to incharge of police post Patel Nagar, Dehradun.
24. PW-6 S.I. Netrapal Singh has registered the FIR and made general diary entry of case crime number 322/1999, has proved the same as exhibit ka-8 and ka-9 respectively.
25. PW-7 Rajender Kumar Singh, the then CO Sadar, Agra, has stated that in this case after arrest of accused-appellant Nadeem, involvement of co-accused Daljeet Lali has emerged. On 30.03.1999 he along with SSI K.D. Pathak, SI Jamil Ahmed, SI R.K. Sisodiya and some other police officials went to Nazibabad at the house of accused-appellant Daljeet Lali, but she was not found present there and they came to know that she was at her house at Dehradun. Thereafter they reached at Dehradun. They took SI Ajaipal Gautam and one constable from PS Kotwali, Dehradun with them and conducted search at the house of accused-appellant Daljeet Lali, which was situated at Prakash Lok colony, Phase II. There accused-appellant Yogesh was found sitting in an Ambassador car. Several number plates were also recovered from the said car. Accused-appellant Daljeet Lali was also present there, while conducting search several tools, which are used in making counterfeit currency were recovered from there. Two big printing press machine, used for printing of currency were also recovered. All the recovered tools and items were taken in to possession and both of these machines were sealed in the same room. Ambassador car, number plates and an amount of RS. 12,000/, recovered from personal search of accused-appellant Daljeet Lali, were also taken in to possession. PW-7 Rajender Kumar Singh has proved recovery memos as exhibit ka-4 to ka-7. It was further stated that accused-appellant Yogesh was indulged in trafficking of counterfeit currency by said car by changing fake number plates.
26. PW 8 SI Navrang Singh has investigated the case crime number 322/1999 and submitted charge-sheet exhibit ka-10 against accused-appellant Balkishan, Nasiruddin, Mohd. Nadeem, Daljeet Lali, Yogesh @ Jogesh and accused Hari Yadav. Separate charge-sheet exhibit ka-11 was filed against accused Rampal.
27. PW 9 SI Rakesh Kumar Sisodiya has investigated the case crime number 327/1999 and during investigation, he has prepared site plan exhibit ka-9.
28. So far the accused-appellants Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal are concerned, they have been convicted under section 489-B and 489-C IPC. As per version of PW 1 SI Sharda Prasad Dixit and PW 2 Inspector Rajender Singh, on 30.03.1999 after receipt of secret information, accused-appellants Balkishan Agarwal and Nasiruddin were apprehended at about 11.00 AM near Railway Station at Cantt tiraha and 25 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Balkishan Agarwal and 40 counterfeit currency notes of Rs 100/- each denomination were recovered from accused-appellant Nasiruddin. Similarly, according to PW-3 SI Raghuraj Bhati and PW 4 SI Danvir Singh, on 31.03.1999 after receipt of secret information, at about 12.30 PM, at Tajganj, Agra, accused-appellant Ajai Khandelwal was apprehended by police and 110 counterfeit currency notes of Rs 100/ denomination were recovered from right side pocket of his pant. Besides these currency notes, 16 certificates of Senior Secondary Board, UP, University of Rajsthan and Aligarh Muslim University were also recovered from him. His companion has run away from spot after throwing currency notes of Rs 100/ on road. The identity of that person was revealed as Sri Ram Agarwal. Currency notes, thrown by him on the road, were collected and same were found total 30 counterfeit notes of Rs 100/- denomination.
29. On behalf of the above said appellants, mainly it was submitted that there are contradictions in testimony of recovery witnesses and the recovery witnesses are police officials and that there is no independent witness to support the alleged recovery. It was further stated that there is absolutely no evidence that alleged currency notes, shown recovered from accused-appellants, were fake or counterfeited. The said currency notes have not been sent for examination and there is no such report that these currency notes were counterfeit.
30. Before proceeding further, it would be apposite to refer the provisions of Section 489-B and 489-C IPC. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. The provisions of Sections 489-A, 489-B and 489-C of IPC are quoted as under :
"489-A. Counterfeiting currency-notes or bank-notes.--
Whoever counter-feits, or knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, 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.
489-B. 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 bare perusal of both the above quoted provisions would go to show that to constitute an offence under Section 489-A IPC the points requiring proof are (1) accused counterfeited or performed any part of the process of counterfeiting (2) the material counterfeited was a currency note or a bank note.
For offence under Section 489B IPC, following ingredients are necessary:-
(i) The note in question is a currency note or a bank note;
(ii) It was forged or counterfeited;
(iii) The accused sold to, or bought from, or received it from any person; (iv) That the accused knew or had reason to believe it to be forged or counterfeited.
Similarly, the ingredients, which are required to constitute an offence under Section 489-C IPC, are as follows:
(i)The note in question is a currency note or bank note;
(ii)Such note was forged or counterfeited;
(iii)The accused was in possession of the currency note or bank note;
(iv)The accused intended to use the same as genuine;
(v) the accused knew or had reason to believe the note to be forged.
31. In the instant case, close scrutiny of evidence on record shows that as per prosecution version alleged recoveries from above-stated four accused persons, namely, Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal were effected after receipt of previous secret information but despite that no public or independent witness has been examined in support of alleged recoveries. It is clear from cross-examination of above stated witnesses that no sincere attempt was made by the police to join some public witness. Though testimony of a police official can not be doubted merely on ground that he is a police official, however, when facts and circumstances are such that public persons or independent witness were available, it is incumbent upon such police official to join some public person as witness. Further, PW-1 Sharda Prasad Dixit and PW-2 Inspector Rajender Singh have stated in their cross-examination that they are aware that accused-appellant Balkishan is a resident of Sultanpura and he runs a jewellery shop there. A suggestion was made to both these witnesses that they have got made jewellery from accused-appellant Balkishan and there was dispute over the payment of amount and that he was falsely implicated on that account. Though these witnesses have denied the suggestion but they have not clarified that how accused-appellant Balkishan was known to them. So far as accused-appellant Sri Ram Agarwal is concerned, he was not arrested at spot but no TIP has been conducted. All these serious lapses affect prosecution version adversely.
32. One of the important aspect of the matter is that there is no satisfactory evidence that the alleged currency notes, shown recovered from these four accused-appellants, namely, Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal, were counterfeit. Mere possession of currency notes is not sufficient for conviction of the accused persons under Sections 489-B and 489-C of the IPC. The prosecution is required to prove that fake or counterfeit currency notes were in possession of the accused persons within their knowledge and they were in possession of currency notes with intent to use the same as genuine or that it may be used as genuine. In the instant case so far accused-appellant Balkishan Agarwal and Nasiruddin are concerned, there is no such Mint/ Bank Note Press or any other expert report that alleged currency notes were counterfeit. The currency notes allegedly recovered from accused-appellant Balkishan Agarwal and Nasiruddin have not been sent for expert examination and there is no such expert report that these currency notes were forged or counterfeited.
The perusal of report exhibit Ka-13, issued by Bank Note Press, Dewas, shows that currency-notes recovered from accused-appellant Ajay Khandelwal and Sri Ram Agarwal were sent to Bank Note Press, Dewas and after examination, it were found counterfeit but this report exhibit ka-13 was never put to these accused-appellants in their examination under section 313 CrPC. Perusal of impugned judgment shows that this report was exhibited by the court on day of judgment itself. No doubt this report was shown issued by Chemist Grade-II and it was admissible in evidence without calling the expert concerned to prove the same but it was necessary that copy of this report must have been supplied to accused appellants and it must have been put to them in their examination under Section 313 CrPC, but there is nothing on record to show that its copy was supplied to any of the accused persons or it was put to accused persons in examination under section 313 CrPC. The investigating officer has admitted in his cross-examination that charge-sheet against the accused-appellants was filed without collecting the report from Bank Note Press Dewas. An expert report can not be considered against the accused behind his back. It is trite that the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. We may usefully refer to the judgment of the Apex Court in Asraf Ali v. State of Assam (2008) 16 SCC 328. The relevant observations are in the following paragraphs:
"21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."
In the instant case it is apparent from record that accused persons were kept in dark regarding said report exhibit ka-13. After hearing of case has been concluded, this report was exhibited by the trial court as ka-13 on the day of judgment and it was relied upon against accused persons. The trial has to be fair both to accused as well to victim. In this case, reliance on report exhibit ka-13, without supplying its copy to accused persons and without putting it to the accused persons in their examination under Section 313 CrPC is contrary to law and it has caused serious prejudice to the case of the accused persons. Thus, this report (exhibit ka-13) can not be considered and/or relied against these accused-appellants. When the report exhibit ka-13 is excluded from consideration against the accused-appellants Ajai Khandelwal and Sri Ram Agarwal, there is no other evidence to establish that currency-notes allegedly recovered from these accused-appellants were forged or counterfeit. So far as accused-appellant Balkishan Agarwal and Nasiruddin are concerned, there is no such report of Bank Note Press, Dewas or of any other expert that currency-notes allegedly recovered from them are counterfeit. Even it has not been clarified that on what basis the witnesses of recovery came to conclusion that alleged recovered currency notes were counterfeited. Mere fact that the recovered currency-notes were of same series, would not be sufficient to hold that these currency-notes were counterfeited, particularly when it is not the case of prosecution that all currency-notes were having one and the same number. In his cross-examination, PW 1 Sharda Prasad Dixit has stated that numbers of currency notes recovered from Balkishan and Nadeem are different. Except the fact that notes were of same series, there is no evidence that on what specific features, the currency-notes were stated as counterfeited. As there is no concrete evidence that alleged currency notes, recovered from said four accused persons, were counterfeit, thus, it caused a serious dent in prosecution case.
33. Another aspect of the matter is that there is no evidence to show that these appellants have knowledge or intention that these currency notes were counterfeit. The mere circumstance that accused-appellants have tried to run away, can not be considered substantial evidence to prove that accused-appellants have knowledge that these currency notes were fake or counterfeit. It is well settled that mere possession would not be enough to convict them under Section 489-B and 489-C IPC. In Umashanker Vs. State of Chhattisgarh [2001 (9) Supreme Court Cases 642], the court observed as under:
.."7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency-note or bank-notes. The object of Legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency-notes and bank-notes. The currency-notes are, in spite of growing accustomedness to the credit cards system, still the backbone of the commercial transactions by multitudes in our country. But these provisions are not meant to punish unwary possessors or users."
In the instant case there is nothing to show that these four accused-appellants, namely, Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal were aware or that they have knowledge that these currency-notes were counterfeit. No such question was asked from these accused-appellants, in their examination under section 313 CrPC, that they retained the said currency-notes knowing well that same were counterfeit. In M. Mammutti Vs. State of Karnataka [1979 (4) Supreme Court Cases 723], the Hon'ble Apex court considered the argument that the appellants were not specifically asked about their knowledge whether recovered currency notes were fake or not and consequently adverse inference was drawn against prosecution and appeal was allowed. In the instant case too, perusal of record shows that no such question put to these accused-appellants during their examination under section 313 Cr.P.C., that they retained above mentioned counterfeit currency notes knowing or having reason to believe that said currency notes were counterfeited or forged.
34. So far the conviction of above stated four accused-appellants under section 489-B IPC is concerned, it may also be seen that there is no evidence that any of these accused-appellants was indulging in selling or buying or receiving or otherwise trafficking or using forged or counterfeit currency. As stated earlier, mere possession of counterfeit currency notes is not sufficient for conviction of the accused persons under Sections 489-B IPC. PW-1 to PW-4 have not stated any such fact that any of these accused-appellants was indulging in selling or buying or receiving or otherwise trafficking or using forged or counterfeit currency. Thus, the evidence is not enough to constitute offence under section 489-B IPC. Even for offence under section 489-C of the IPC, the prosecution is required to prove that fake or counterfeit currency notes were in possession of the accused persons with their knowledge and they were in possession of currency notes with intent to use the same as genuine or that it may be used as genuine. Mere possession of counterfeit currency notes or bank notes is not sufficient to make out a case under section 489-C IPC in the absence of mens rea. Criminality of mind and/intention must be there to constitute the offence under those sections but on critical analysis of the evidence of the prosecution witnesses on record, there is no such evidence to the effect that these appellants had the requisite mens rea.
35. Thus, so far as the conviction of above stated accused-appellants Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal under Section 489-B and 489-C IPC is concerned, it is clear that prosecution has miserably failed to prove that alleged recovered currency notes were counterfeited or forged and also failed to prove that these accused-appellants or anyone of them has sold or brought or received from any other person or otherwise used as genuine, any forged or counterfeit currency note or bank note, knowing or having the reasons to believe the same to be forged or counterfeit. As stated earlier, mere possession of counterfeit currency notes is not sufficient for conviction of the accused persons under Sections 489-B and 489-C of the IPC, but the prosecution is required to prove that fake or counterfeit currency notes were in possession of the accused persons with their knowledge and they were in possession of currency notes with intent to use the same as genuine or that it may be used as genuine. Similarly there is no evidence that the accused-appellants have knowledge that they were in possession of counterfeit currency notes with intent to use the same as genuine or that it may be used as genuine. For conviction of above stated accused-appellants under section 489-B and 489-B IPC, prosecution was required to prove all the ingredients by leading some positive and cogent evidence but it has failed to do so. Considering entire evidence, it is clear that prosecution has failed to prove the necessary ingredients of section 489-B and 489-C IPC by cogent evidence.
36. In view of the foregoing discussion, it is clear that prosecution has failed to prove the charges under section 489-B and 489-C IPC against the above-stated accused-appellants Balkishan Agarwal, Nasiruddin, Ajai Khandelwal and Ram Agarawal and thus, these four accused-appellants are entitled for acquittal.
37. So far as accused-appellant Daljeet Lali is concerned, she has been convicted under section 235, 489-A and 489-D IPC. As per prosecution version on 31.03.1999 after recovery made from accused-appellant Nadeem, a police team comprising PW 5 Kuber Dutt Pathak and PW 7 C.O. Rajender Kumar Singh reached at Dehradun and on 31.03.1999, conducted a raid at the premises of accused-appellant Daljeet Lali at Prakash Lok, Phase II. In search, 6 rims of white thin paper, which is used in making counterfeit currency, two papers having impression of number 141099 in red colour, one punch machine, two packets of stapple, one metal strip, one aluminium plate, one heavy electric press and several other tools were recovered. All the recovered tools and items were taken in to possession vide recovery memo exhibit ka-4. Besides the said articles, two big printing press, used for printing of currency, were sealed at the spot. As these machines were quite heavy, thus these machines were left at the same spot in room and the room was sealed. These machines were taken in to possession vide memo exhibit ka-5. PW-5 further stated that one ambassador car having number plate of UP 07A- 8474 as well as four forged number plates were also recovered and the same were taken in to possession by recovery memo exhibit ka-6.
38. Section 489-A IPC deals with act of counterfeiting of currency and bank notes. To substantiate the offence under Section 489-A IPC, the prosecution must prove that the note in question is a currency note and that the accused counterfeited it or knowingly performed any part of the process of counterfeiting it. Section 489-D IPC deals with making or possessing instruments or materials for forging or counterfeiting currency or bank notes. To substantiate the offence under Section 489-D IPC, the prosecution must prove that the machinery or instrument or material in question were used for counterfeiting currency; that the accused made or performed some part of the process making machinery or instrument or material in question that are necessary for or in using counterfeit or the same were intended to be used for such part of the process.
39. Perusal of evidence shows that prosecution version that on the basis of statement of accused-appellant Nadeem, the police party comprising PW 5 Kuber Dutt Pathak and PW 7 C.O. Rajender Kumar Singh had gone to Dehradun is suffering from several inconsistencies. The alleged statement of Nadeem has neither been proved nor brought on record. As per statement of PW-1 Sharda Prasad Dixit, they have reached at Aligarh at about 04.30-04.45 PM and that as per PW 2 Ins. Rajender Singh, accused Nadeem was arrested at 05.00 PM, whereas PW 7 C.O. Rajender Kumar Singh has stated that on the basis of statement of Nadeem, they left for Dehradun at 04.00 PM from Agra. It has not been clarified that when Police team (comprising PW-1 and PW-2 ) itself has reached at Aligarh at 4.30-4.45 PM, how on the basis of statement of accused-appellant Nadeem, PW 5 Kuber Dutt Pathak and PW 7 CO Rajender Kumar Singh could leave for Dehradun and that too from Agra. This fact assumes more importance because no such statement of accused Nadeem has been brought on record. Similarly no such departure entry of general diary has been proved to show that PW 5 Kuber Dutt Pathak and PW 7 CO Rajender Kumar Singh and other members of their team had left for Dehardun on the basis of statement of accused Nadeem. Thus, it appears doubtful that said police team, who went to Dehradun, has left on the basis of statement of accused Nadeem. Further, as per prosecution version, alleged recovery from flat of accused Daljeet Lali was made in presence of local police of Dehradun and after sealing two printing machines at the spot the keys of that room were handed over to SI Ajai Pal Gautam, incharge police post Patel Ngar, PS Kotwali, Dehradun but neither said SI Ajai Pal Gautam has been examined nor any other police official from police post Patel Nagar of Police station Kotwali, Dehradun, has been examined. Even no General Diary entry of said police post or police station Patel Nagar of Dehradun has been brought on record to show that any such recovery was effected in presence of police of Dehradun. As per prosecution version all the articles, except two big machines, were deposited in malkhana of police station Kotwali, Dehradun but neither the malkhana moharir has been examined nor any such entry of general diary of police station Dehradun has been proved. All these aspects become important because no case property, allegedly recovered from there, has been produced in court. One important fact is that PW 5 Kuber Dutt Pathak and PW 7 CO Rajender Kumar Singh have stated that recovery memo exhibit ka-4 was prepared by SI Jamil Mohemmad but said Jamil Mohemmad has not been examined. Similarly recovery memo (exhibit ka-7 ) of alleged amount of Rs.12,000/ and keys bunch was also prepared by SI Jamil Mohemmad, who has not been examined. All these aspects raises a shadow of doubt about veracity of prosecution version regarding alleged recoveries made from flat of accused-appellant Daljeet Lali.
40. Further, as stated earlier, even as per prosecution, no counterfeit currency has been recovered from possession of accused-appellant Daljeet Lali. PW 5 Kuber Dutt Pathak has clearly stated in his cross-examination that no counterfeit currency was recovered from accused-appellant Daljeet Lali. So far the conviction under section 489-A and 489-D IPC is concerned, it would be pertinent to mention that PW 5 SI Kuber Dutt Pathak has stated that he can not say whether counterfeit currency can be printed by the said machines or not. There is no such expert report or evidence that the machines and dyes, shown recovered from her flat, were used for making counterfeit currency or coins. Even there is no such expert opinion on record that counterfeit currency-notes and coins can be printed/ manufactured by those machines with the aid of other articles. There is no such report of an expert or of Government Mint to show that any counterfeit currency has been made from the machines and material found at spot.
41. Though, as stated earlier, the version of PW-5 and PW-7 that the above mentioned printing machines and other articles were recovered from the above stated premises of accused-appellant is suffering from various infirmities, but there is also no such evidence that these printing press or material were used in counterfeiting currency or coins. As noted above, neither of the alleged printing machine nor any other recovered article has been proved or exhibited in evidence. In fact said printing machines/press and other articles were never produced in court. No witness has deposed about counterfeiting of currency notes by the accused-Appellant Km. Daljeet Lali or that she was knowingly performing any part of the process of counterfeiting the currency notes. No witness has deposed that the accused-appellant was found forging or counterfeiting currency notes. Thus, it is apparent that even if one proceeds on the footing that these witnesses, namely PW 5 and PW-7 have proved the recovery of printing machines and other alleged items, it is clear that none of these were identified, much less, proved and exhibited as being the materials which were used for counterfeiting the currency notes or making them. Considering entire evidence, it appears that the ingredients of the above stated offences could not be established. Even the evidence regarding alleged recovery is not cogent and credible. There is missing link between identity of articles seized which has weaken the prosecution case. In view of these reasons the finding of guilt and conviction of accused-appellant Km. Daljeet Lali under Section 489-A and 489-D IPC is liable to be reversed.
42. The other offences, under which appellant Km. Daljeet Lali has been convicted, is Section 235 of the Indian Penal Code, which reads as under:
235. Possession of instrument or material for the purpose of using the same for counterfeiting coin : Whoever is in possession of any instrument or material, for the purpose of using the same for counterfeiting coin, or knowing or having reason to believe that the same is intended to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
If Indian coin:- And if the coin to be counterfeited is Indian coin, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
43. From above quoted provisions it appears that the basic requirement for the prosecution to succeed against the accused-appellant in respect of counterfeiting coins is that the witnesses examined by the prosecution must speak of the manufacturing of coin resembling a genuine one. The explanation of the section provides that the imitation need not be exact. A presumption can also be drawn under Explanation 2 of Section 28 IPC that a person is counterfeiting coins when he causes one coin to resemble another so closely that the person intended to practise deception or knew it would be likely to cause deception. Section 232 IPC prescribes the punishment for counterfeiting Indian coins. Section 235 IPC prescribes the punishment for a person who is in possession of any instrument or material used for counterfeiting coins. Thus, a conviction under Section 232 IPC or 235 IPC would be maintained only if the prosecution satisfactorily proves the ingredients of Section 28 IPC. Mere possession of equipment need not necessarily result in a conviction if the prosecution fails to prove that the equipment was used to manufacture counterfeit coins. The prosecution must establish that the coins manufactured resemble the original coins. It must also establish that there is an intention to deceive, or the knowledge that deception would be caused by such resemblance.
44. In the instant case when evidence is examined on the touchstone of aforementioned legal position, it appears that basic ingredients of offence punishable under section 235 IPC have not been established. As stated earlier, none of the witnesses have stated about any recovery of any counterfeit currency or coin from possession of accused-appellant Daljeet Lali. There is no mention in the evidence of PW 5 Kuber Dutt Pathak and PW 7 that any counterfeit coins were recovered from the premises of accused-appellant and that said coins resembled with genuine coins. There is absolutely no evidence on record to show that any counterfeit coins were recovered. Similarly there is no evidence that accused-appellant Daljeet Lali was found indulging in manufacturing of counterfeit coins and even there is no categorical evidence that manufacturing of counterfeit coin was possible from the instruments and other articles recovered from spot. There is no such expert report that currency-notes or coins can be manufactured by the said machines and tools. So far as the case against accused-appellant Daljeet Lali is concerned, the basic ingredients for proving an offence punishable under Section 235 IPC are absent in the present case. Merely by seizing the equipment and other items, found in the flat of accused appellant, it could not be said that prosecution has proved it's case beyond doubt. Thus, charge under Section 235 IPC could also not established against accused-appellant Km. Daljeet Lali.
45. So far accused-appellant Yogesh @ Jagesh Prajapati is concerned, he has been convicted under section 489-B IPC, however, there is no evidence that any counterfeit currency was recovered from him. Similarly there is absolutely no evidence that he was indulging in using, selling, buying or receiving from any other person, or otherwise trafficking, as genuine, any forged or counterfeit currency- note or bank-note, knowing or having reason to believe the same to be forged or counterfeit As per prosecution version, he was arrested at the premises of accused-appellant Daljeet Lali from Dehradun. Except the fact that he was present at the house of accused-appellant Daljeet Lali, there is no evidence against him. The case against accused-appellant Yogesh is that he has indulged in trafficking of counterfeit currency from one place to another and that in that process, he used to use forged number plate on car, but there is absolutely no evidence in support of this version. No adverse presumption can be drawn by his mere presence in the home of Daljeet Lali. In fact there is no legally admissible evidence against him and he was convicted merely on the basis of suspicion and conjectures. Even otherwise once the case could not be established against accused-appellant Daljeet Lali, thus accused-appellant Yogesh also deserves acquittal as same evidence was pressed against him.
46. As far as accused-appellant Nadeem is concerned, his case appears on different footing. As per prosecution version, on 30.03.1999 after receipt of an secret information, at about 11.00 AM at Cantt tiraha, Agra, accused-appellants Balkishan Agarwal and Nasiruddin were apprehended by Police and 25 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Balkishan Agarwal and 40 counterfeit currency notes of Rs 100/ denomination were recovered from accused-appellant Nasiruddin. These accused persons have disclosed that they have obtained these currency notes from accused Nadeem and that said Nadeem is indulging in counterfeiting Indian currency at large scale. The police team took accused Nasiruddin to Aligarh and at his pointing out, ploce team conducted a raid at Lucky Printing Press, belonging to accused-appellant Nadeem. In search, 35 packets of Rs 100/ denomination (each packet having 100 notes of Rs 100/ denomination) were recovered from a brief case, lying in a room of said printing press. Besides this counterfeit currency of Rs. 3,50,000/-, 25 counterfeit coin of Rs. 5, 9 semi-manufactured coin of Rs. 5, 3 original coin of Rs. 5, American currency of 100 dollar, negative of Rs. 100 and six National Emblem, 8 trail of Rs. 5 coin, one blank diploma-sheet of Aligarh Muslim University, four piece of diploma Chemist, six piece of Master of Theology Degree, five Bachelor of Law Degree, 37 Bachelor of Law Degree, 7 Bachelor of Medicine and Bachelor of Surgery Degree, some marksheet of Jamia Urdu Marksheet, 10 Marksheet of Secondary School Certificates, 13 Diploma of Engineering Degree, 15 Master of Arts Degree, one Master of Library Science Degree, 7 Master of Computer Science Degree, 16 Bachelor of Commerce Degree, 7 Master of Philosophy Degree, 16 Master of Business Administration Degree, One Doctor of Medicine Degree, 4 Negatives of C.B.S.E., Delhi and U.P., some prints of currency notes on papers, one negative of Rs 1000/ note, one note of Rs 100/, one machine dye with electric motor, 4 dye piece iron, 2 two dye for cutting groups of coins, 2 castic dye, 11 semi manufactured coins of Rs 5/, 26 proforma of character certificates of AMU and 16 sheet papers were also recovered. All these counterfeit currency-notes, coins and other articles and documents were sealed and taken into possession vide recovery memo Ext. Ka-2.
47. One of the argument raised on behalf of the accused-appellant Nadeem was that alleged recovery was effected after arrest and disclosure of accused-appellant Balkishan and Nasiruddin but their disclosure statements have not been proved. No doubt, as per prosecution version, accused-appellant Balkishan and Nasiruddin have disclosed that accused-appellant Nadeem used to indulge in manufacturing of counterfeit currency and they have also received the counterfeit currency from him, however, merely because their disclosure statements have not been recorded or proved, it does not mean that recovery effected from accused-appellant Nadeem would ipso facto become nullity. There is evidence that police have taken accused-appellant Nasiruddin to Aligarh and that at his pointing out, printing press of accused-appellant Nadeem was searched. It is not the case of accused-appellant Nadeem that said press does not belong to him. One important aspect is that quantity of recovery of alleged counterfeit currency and other documents and tools made from press of accused-appellant Nadeem is quite huge. The version of PW-1 Sharda Prasad Dixit regarding recovery has been amply corroborated by PW-2 Inspector Rajender Singh and their version is consistent with recovery memo Ex. ka-2. It is correct that there were some contradictions like PW 1 Sharda Prasad Dixit has stated that the alleged press of Nadeem is situated in thickly populated area where as PW 2 Inspector Rajender Singh has stated that there is no populated area around the said printing press. Similarly there is inconsistency on the point that up to which time, the police remained at spot but such minor contradictions and inconsistencies are bound to erupt in every case and the same do not affect the substance of testimony of PW 1 Sharda Prasad Dixit and PW 2 Ins. Rajender Singh. These witnesses have been subjected to cross-examination, but no material contradiction or inconsistency could emerge. Regarding alleged recovery, PW 1 SI Sharda Prasad Dixit and PW 2 Inspector Rajender Singh have made clear and cogent statements. They have been subjected to cross-examination, but no such important contradiction or inconsistency could emerge so as to create any doubt regarding alleged recovery made from printing press of the accused-appellant Nadeem. We have also considered statements of DW-1 and DW-2 but the same failed to erode the substance of testimony of PW 1 SI Sharda Prasad Dixit and PW 2 Inspector Rajender Singh. In view of the fact that recovery is quite huge, it can not be accepted that alleged recovery might have been planted on accused-appellant Nadeem. The recovered items have been produced in court and they have been identified by PW 1 and PW 2 and have been duly exhibited. So far the question that alleged currency-notes were counterfeit or not, it may be seen that currency-notes of Rs 3,50,000/, recovered from accused-appellant Nadeem, were having same of numbers of same series. Further, these currency notes were recovered from printing press of accused-appellant. Besides the currency-notes, several negatives of currency notes and some other incriminating articles, which are used in counterfeiting of currency-notes, were also recovered. In his statement under section 313 CrPC, accused-appellant Nadeem was questioned that these counterfeit currency notes were recovered from his possession. Though he has denied the recovery but he never took the plea that these currency-notes were not counterfeit or that the currency-notes were genuine. In fact the accused-appellant Nadeem has not put up any such specific case that recovered notes were not counterfeit. Rather his case is of simple denial of alleged recovery. The quantity of recovered currency-notes of same series coupled with recovery of negatives of currency notes and tools and material used in manufacturing of counterfeit notes and considering all attending facts and circumstances of the case clearly indicate that these currency-notes were counterfeit currency. In view of evidence on record, it stand proved that on 30.03.1999 the recovery of above mentioned currency-notes of Rs 350,000/ and other articles was made from possession of accused-appellant Nadeem vide recovery memo Ex. Ka-2.
48. Accused-appellant Nadeem has been convicted under section 235, 236, 240, 471, 489-A, 489-B, 489-C and 489-D IPC. As stated earlier, prosecution has been able to prove the recovery of alleged counterfeit currency, forged documents, printing press equipments and other items used in manufacturing of counterfeit currency, as stated in recovery memo exhibit ka-2, from his possession, however, the question arises, whether the accused-appellant Nadeem is liable to be convicted of all the said charges of which he has been convicted by trial court.
49. So far the conviction of accused-appellant Nadeem under section 489-A, 489-B, 489-C and 489-D IPC is concerned, as stated earlier, section 489-A IPC deals with mischief of counterfeiting currency-notes or bank notes, section 489-B IPC deals with situation where the offender has sold to, or bought from, or received counterfeit currency from any person, section 489-C IPC makes possession of counterfeit currency note or bank note punishable, if intended to use the same as genuine and that the accused knew or had reason to believe the notes to be forged and section 489-D IPC deals with making or possessing instruments or materials for forging or counterfeiting currency or bank notes. To prove offence under section 489-B and 489-C IPC, it is necessary that at the time of his possession of counterfeit currency notes, such person knew or that he had reason to believe that the currency was counterfeited and that he intended to use it as a genuine note and to foist the same on the public.
50. So far as the conviction of accused-appellant Nadeem under section 489-B, 236, 240 and 471 IPC is concerned, perusal of evidence shows that there is no evidence to prove these charges. As far as conviction under section 489-B IPC is concerned, as discussed above, for sustaining conviction under section 489-B IPC, it is necessary that forged or counterfeited currency was sold to, or brought from, or received it from any person by the accused. It is also necessary that the accused knew or had reason to believe it to be forged or counterfeited. In this case, though recovery of total Rs 350,000/ counterfeit currency was shown from possession of accused-appellant Nadeem but there is no evidence to show that he was indulging in using, selling or buying or receiving or otherwise trafficking or using forged or counterfeit currency. As stated above, mere possession of counterfeit currency notes is not sufficient for conviction of the accused persons under Sections 489-B IPC. In this regard only evidence is that accused-appellant Balkishan and Nasiruddin have told the police that they have received the counterfeit currency from accused-appellant Nadeem but no such statement of Balkishan and Nasiruddin has been proved. In the facts and circumstances of the case mere statement of co-accused can not be the basis of conviction of accused-appellant Nadeem under section 489-B IPC. There is absolutely no evidence that accused-appellant Nadeem was dealing in sale, purchase or otherwise trafficking of forged or counterfeited currency-notes, so as to attract provisions of section 489-B IPC. Mere possession of counterfeit currency-notes would not give rise to any such presumption that he was indulging in sale, purchase or trafficking of forged or counterfeit currency. The mischief of possession of counterfeit currency-note is covered under section 489-C IPC. Provisions of section 489-B IPC would not attract automatically merely on the basis of possession of counterfeit currency. In the instant case, the necessary ingredients of section 489-B IPC are missing as there is absolutely no evidence that the accused-appellant Nadeem was indulging in sale, purchase or otherwise trafficking of forged or counterfeited currency-notes and thus, conviction of accused-appellant under section 489-B IPC is not justified.
51. In the same way so far conviction under Sections 236 and 240 IPC is concerned, there is no evidence to prove these charges. At this stage it would relevant to peruse the provisions of section 236 and 240 IPC, which reads as under:-
Section 236:- Abetting in India the counterfeiting out of India of coin.--Whoever, being within [India], abets the counterfeiting of coin out of [India], shall be punished in the same manner as if he abetted the counterfeiting of such coin within [India].
Section 240:- Delivery of Indian coin, possessed with knowledge that it is counterfeit.--Whoever, having any counterfeit coin which is a counterfeit of [Indian coin], and which, at the time when he became possessed of it, he knew to be a counterfeit of [Indian coin], fraudulently or with intent that fraud may be committed, delivers the same to any person, or attempts to induce any person to receive it shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
In the instant case, there is absolutely no evidence that accused-appellant Nadeem has abetted the counterfeiting of coins out of India or anywhere else. Similarly there is no evidence that accused-appellant Nadeem has delivered any counterfeit coin to any person, or attempted to induce any person to receive the same. No witness has stated anything so as to make out a case under Sections 236 and 240 IPC. The necessary ingredients of these offence are not satisfied by the evidence on record. Thus, conviction of accused-appellant Nadeem under section 236 and 240 IPC is liable to be set aside.
52. As far as conviction under Section 471 IPC is concerned, the provisions of Section 471 IPC reads as under:-
Using as genuine a forged [document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
In the instant case, there is no satisfactory evidence that accused-appellant Nadeem has used any forged document as genuine so as to attract provisions of section 471 IPC. In this regard, the case of prosecution is that accused-appellant was found in possession of several fake degrees, diplomas and other certificates of some Universities and educational institutions. However, there absolutely no evidence that he has used said documents as genuine. Thus, accused-appellant Nadeem is not liable to be convicted under section 471 IPC.
53. In view of aforesaid, conviction of accused-appellant Nadeem under section 236, 240, 471 and 489-B IPC is not sustainable.
54. However, so far conviction of accused-appellant Nadeem under section 489-A, 489-C, 489-D and 235 of IPC is concerned, there appears sufficient evidence against him. It has been proved that accused-appellant Nadeem was found in possession of counterfeit currency of Rs 350,000/. Besides this, certain other items like one negative of Rs 100/ currency-note, one dye machine, 16 sheets of paper, 6 ''Ashoka laats', negative Rs 5, negative of Rs 1000/ note and other tools used in manufacturing of currency-notes were also recovered. In view of evidence of PW 1 SI Sharda Prasad Dixit and PW 2 Inspector Rajender Singh coupled with other evidence on record and huge quantity of counterfeit currency notes, it emerges that accused-appellant Nadeem was indulging in counterfeiting Indian currency-notes. From the various circumstances leading to the seizure of forged notes coupled with other articles recovered from his press, it can be presumed that or it can be inferred that the accused-appellant had reason to believe that notes in possession were counterfeit/ fake. It is trite law that the knowledge referred to in Sections 489-A, 489-C and 489-D, IPC could be proved by circumstances which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously counterfeit currency in question in the public and therefore, the necessary knowledge contemplated under Section 489A, 489-C and 489-D IPC, may be presumed from the circumstances like that recovery of counterfeit currency was quite huge, currency-notes were having same series, recovery of negatives of currency notes and that accused-appellant Nadeem has never took the plea that he believed the said currency-notes as genuine one. Section 489-A IPC deals with the the act of counterfeiting of currency and bank notes. To substantiate the offence under Section 489-A, IPC, the prosecution must prove that the note in question is a currency note and that the accused counterfeited it or knowingly performed any part of the process of counterfeiting it. In the instant matter recovery of 25 counterfeit coin of Rs. 5, 9 semi-manufactured coin of Rs. 5, 3 original coin of Rs. 5, negatives of Rs. 100 and 1,000/- notes and six National Emblem, 8 trail of Rs. 5 coin, coupled with recovery of printing press and various dyes and counterfeit currency-notes of Rs. 350,000/, clearly shows that ingredients of section 489-A IPC are established.
55. As discussed above section 489-C IPC deals with possession of counterfeit currency and to constitute an offence under Section 489-C IPC it is sine qua non to establish that the currency in question were forged or counterfeit and accused was in possession thereof, intending to use the same as genuine and that the accused knew or had reason to believe the currency to be forged. In the instant case recovery of counterfeit currency-notes of Rs 3,50,000/- coupled with other recovery and attending facts and circumstances of case clearly shows that accused-appellant Nadeem was in possession of said counterfeit currency intending to use the same as genuine and that he knew or had reason to believe that these currency notes were forged.
56. Section 489-D IPC deals with making or possessing instruments or materials for forging or counterfeiting currency or bank notes. To substantiate the offence under Section 489-D IPC, the prosecution must prove that the machinery or instrument or material in question were used for counterfeiting currency. It is sufficient that the accused made or performed some part of the process making machinery or instrument or material in question that are necessary for or in using counterfeit or the same was intended to be used for such part of the process. It may not be necessary to prove that the accused was able to command all the articles required, but, it is sufficient that he was in possession of only some of the machinery or instrument or material that may be necessary for or use in counterfeiting the currency. In the instant matter recovery of semi-manufactured coins, negatives of Rs. 100 note, six National Emblems (to print impression of national emblem on currency-notes), 8 trails of Rs. 5 coin, some prints of currency notes on papers, one negative of Rs 1000/ note, one note of Rs 100/ along with one machine dye with electric motor, 4 dye piece iron, 2 two dye for cutting groups of coins, 2 castic dye, and 16 sheet papers, clearly establishes that accused-appellant Nadeem was dealing with making or possessing instruments and materials for forging or counterfeiting currency or bank notes. In view of clinching evidence on record, it is manifest that prosecution has been able to prove charges under section 489-A, 489-C and 489-D of IPC against accused-appellant Nadeem.
57. So far as conviction of accused-appellant Nadeem under section 235 IPC is concerned, there is evidence on record that besides the counterfeit currency currency of Rs. 3,50,000/-, 25 counterfeited coins of denomination of Rs. 5, nine semi manufactured coins each of Rs. 5, five negatives of Rs. 5/ coin, six Ashok Laats, one dye machine, four piece dye for manufacturing coin, 10 dye piece , which is used in cutting group of coins, 2 other caustic dye pieces, material, which is used manufacturing, 17 wooden blocks and tools were also recovered. As stated earlier, for conviction under Section 235 IPC, there must be evidence of manufacturing of counterfeit coin resembling a genuine one. A presumption can also be drawn under Explanation 2 of Section 28 IPC that a person is counterfeiting coins when he causes one coin to resemble another so closely that the person intended to practise deception or knew it would be likely to cause deception.
58. In instant case, it is clear that alleged negatives of Rs. 5/ coin, 25 counterfeit coins of Rs. 5, 9 semi-manufactured coins of Rs. 5, Ashok Laats, dye machine, dye pieces for manufacturing coins, 10 dye piece, which is used in cutting group of coins, other caustic dye pieces, 17 wooden blocks and other tools and material were possessed by accused-appellant Nadeem for manufacturing counterfeit Indian coins. This fact is further fortified by the recovery of counterfeited coins and semi manufactured counterfeited coins. In view of said recovery, it can safely be inferred that the accused-appellant Nadeem was in possession of the instruments and material, for the purpose of using the same for manufacturing counterfeit coins and thus, charge under section 235 IPC is also fully established against him.
59. On the appraisal of evidence on record, it is clear that the conviction of the accused-appellant Nadeem under Section 489-A, 489-C, 489-D and 235 of IPC is liable to be affirmed. However his conviction under section 236, 240, 471 and 489-B IPC is not sustainable and has to be set aside.
60. So far the question of sentence is concerned, it is well settled that sentence must be just and in consonance of principle of proportionality between the crime and punishment. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated herein before and also have been stated in a number of pronouncements by the Hon'ble Apex Court and by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. While imposing sentence, Court has to keep in view the various complex matters in mind. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
In Shyam Narain vs State (NCT of Delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind.
Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.
In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Hon'ble Supreme Court referred its several earlier judgements and has reiterated that in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the valuebased social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner.
61. Keeping in view the settled legal position, in the instant case, the alleged incident took place on 30.03.1999 and thus a period of 21 years has already been passed since then. There is nothing to show that accused-appellant is a previous convict. Accused-appellant Nadeem is in custody since the day of incident and thus he has already undergone incarceration of 21 years. It was stated that at the time of incident, accused-appellant was aged 40 years and thus, now he has turned 61 years and that prime time of his life has already been passed behind the bars. Considering all relevant facts and attending circumstances as well as the aforementioned proposition of law, it appears that ends of justice would met if the sentence of imprisonment for life, awarded by trial court under section 489-A and 489-D IPC be reduced to 10 years rigorous imprisonment, whereas sentence awarded by trial court under court under section 235 and 489-C IPC be maintained and upheld.
62. Accordingly, conviction of accused-appellant Nadeem under section 236, 240, 471 and 489-B IPC is hereby set aside and his conviction under section 489-A, 489-C, 489-D and 235 of IPC is maintained and affirmed. However, his sentence under Section 498-A and 489-D is modified and is sentenced as under:
(i) Accused-appellant Nadeem is sentenced to 10 years rigorous imprisonment and fine of Rs. 50,000/ under Section 489-A IPC. In default of payment of fine, he shall undergo one year imprisonment.
(ii) Appellant Nadeem is sentenced to 10 years rigorous imprisonment and fine of Rs. 50,000/ under Section 489-D IPC. In default of payment of fine, he shall undergo one year imprisonment.
(iii) Sentences imposed by the trial court under Sections 235 and 489-C are maintained.
All the substantial sentences shall run concurrently. In case, accused-appellant Nadeem has already undergone sentence of imprisonment awarded by this court, he shall be released forthwith, unless wanted in any other case. Accused-appellant is granted two months time for depositing fine before the Trial Court, after his release.
63. In view of aforesaid, appeal of accused-appellant Nadeem is partly allowed in above terms.
64. However, conviction and sentence of accused-appellants Sri Ram Agarwal, Ajay Khandelwal, Balkishan Agarwal, Km Daljeet Lali and Yogesh alias Jagesh is set aside and they are acquitted of charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties are discharged. However, they are directed to comply with the provisions of Section 437-A of Cr.P.C.
65. Appeals of accused-appellants namely Balkishan, Nasiruddin, Ajay Khandelwal, Sri Ram Agarwal, Km Daljeet Lali and Yogesh @ Jagesh Prajapati are allowed.
66. Copy of this judgment as well as Lower Court Record be sent to the Court concerned forthwith for further necessary compliance.
Dated: 30.05.2020
Anand
(Raj Beer Singh, J) (Naheed Ara Moonis, J)