Delhi District Court
Sc No. 98/10, Fir No. 39/10 'State vs . Umar Khan & Anr.' 1/22 on 11 September, 2012
IN THE COURT OF SHRI RAJEEV BANSAL
ASJ-03 (SOUTH DISTRICT), SAKET COURTS
NEW DELHI.
SC No. : 98/10
(Unique No.02403R016832010)
FIR No. : 39/10
PS : Saket
U/S : 489-B/489-C/120-B of IPC
State
Vs
(1) Umar Khan
S/o Yunus Khan
R/o F-2, Khanpur,
School Road, New Delhi.
(2) Mohd. Kalam
S/o Mohd. Mustakin
R/o 121, Gali No. 1, near Tara Apartment,
near Bus Stand, Govindpuri, New Delhi.
Date of Initial Institution : 14.05.2010
Date of Institution in the Present Court : 07.10.2010
Date of Pronouncement of Order : 11.09.2012
JUDGMENT
1. The prosecution case as per the charge-sheet is that on 17.02.2010, DD No.8A was recorded at 10:45 a.m that one boy Umar Khan had come in ICICI Bank with 71 counterfeit notes in the denomination of Rs. 500/-, who has been apprehended. This information was received from an SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 1/22 ASI Kuldeep, Incharge of PCR Van and the same was passed on to SI Prashun through Ct. Ramesh. On receipt of the information, SI Prasun with Ct. Praveen reached ICICI Bank, E-Block, Saket where Surjeet Rai, Manager of ICICI Bank gave a complaint regarding 71 counterfeit currency notes and a person, namely, Umar Khan was produced alongwith a pay-in-slip in favour of Kalam having A/c No. 038601509219 whereby a sum of Rs. 38,500/- was sought to be deposited by 77 currency notes of Rs. 500/- in which 71 currency notes were found to be counterfeit after thorough check by the Branch Manager. The counterfeit currency notes and the pay-in-slip and six currency notes were converted into three different pullandas and on this, offence under Section 489B and 489C IPC was registered against Umar Khan. The site-plan was prepared at the instance of Manager Surjeet Rai. Accused was arrested and at the instance of the accused, co-accused Mohd. Kalaam was arrested. Two disclosure statements were recorded wherein it was stated that 71 counterfeit currency notes of Rs. 500/- were given by a boy, named, Hamid who usually come in Mosque near Govindpuri Road on Friday for the purpose of SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 2/22 Namaj. Accused Mohd. Kalam got recovered one more counterfeit currency note bearing No. 3AK32588 of Rs. 500/- from the shelf of his house from underneath a paper and this note was seized in a separate pullanda. Efforts were made to apprehend accused Hamid from the aforesaid Masjid but his whereabouts could not be known. The counterfeit currency notes were sent to FSL, Rohini, for examination.
2. After completion of the investigation, the charge-sheet was filed under Section 489B and 489C and 120B IPC. Since the offence under Section 489B & C are exclusively triable by the Sessions Court, the case was received in this Court on committal and vide order dated 06.08.2011, charge was framed against the accused persons. Both the accused persons were charged under Section 489B, 489C and 120B of IPC and accused Mohd. Kalam was additionally charged under Section 489C read with Section 120B IPC for possession of currency note of Rs.500/- which he got recovered on 19.12.2010. Both the accused persons pleaded not guilty and claimed trial.
SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 3/22
3. In order to prove its case, prosecution examined eight witnesses.
4. PW-1 Surjit Dev Roy is the Deputy Manager of ICICI Bank, Saket, who deposed that on 17.02.2010, a cash deposit of Rs. 38,500/- in denominations of 77 notes of Rs.500/- each, had come in and out of these, 71 currency notes of Rs. 500/- denomination were found to be counterfeit and the balance six notes of Rs. 500/- were found to be genuine. Local police station was intimated and all the counterfeit currency notes were handed over to the concerned police official. He proved his complaint as Ex. PW1/A and the seizure memo of the notes was proved as Ex. PW1/B. Seizure memo of original pay-in-slip was proved as Ex. PW1/C and the original pay-in-slip was proved as Ex. P-1. However, he could not identify the person, who had deposited the cash on that day. The witness identified six genuine currency notes as Ex. P-1 to P-6 and 71 counterfeit currency notes were Ex. P-7 to P-77. This witness was cross-examined by the Ld. Addl. PP on the point of identity of the accused but the witness could not identify him on the ground that incident is 1½ years old. In his cross- SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 4/22 examination, he could not tell as to who had informed the police. He stated that the incident took place between 10:30 a.m to 12:00 noon. He stated that one has to take a token from the automatic machine prior to deposit the money in the bank; there were many customers and employees were present in the bank at the time of the incident. He stated that no site-plan was made in his presence by the police nor at his instance. He has also stated that he cannot remember the serial number of the counterfeit currency notes.
5. PW-2 Gaurav Singh proved seizure memo of photocopy of A/c opening form of A/c No.038601509215 in the name of Mohd. Kalaam as Ex. PW2/A. The witness could not produce the original A/c opening form.
6. Rest of the six witnesses are police witnesses. PW-3 Ct. Ramesh Singh deposed that on 19.02.2010 accused Mohd. Kalaam took him and SI Prashun to his house i.e 121, Tara Apartment, Govind Puri, Bus Stand from where he got recovered one currency note of Rs. 500/- from beneath the paper of shelf of his house. He proved the seizure memo of the same as Ex. PW3/A. However, the SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 5/22 witness could not tell the number of the seized currency note. On being cross-examined by the Ld. Addl. PP regarding the number of the said note, he identified the note. In his cross-examination, he stated that at the time of recovery of the currency note, 2-3 persons were present at the house of the accused. He also stated that many people had gathered at the spot.
7. PW-4 Ct. Roop Kishore deposed that on 12.05.2010, he had taken three pullandas from MHC(M) and deposited them with FSL, Rohini and the pullandas remained intact in his possession.
8. PW-5 ASI Suresh Chandra is the Duty Officer, who stated to have recorded the FIR No. 39/10 which he proved as Ex. PW5/A. The FIR was registered at 8:45 p.m on 17.02.2010.
9. PW-6 Ct. Pradeep Sharma deposed that on 17.02.2010 he was on emergency duty with SI Prashun; at about 10:45 a.m. SI Prashun received DD No. 8A regarding apprehension of one person with counterfeit currency notes at ICICI Bank, E-Block, Saket. When he reached there, SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 6/22 Branch Manager gave a complaint that Umar Khan had come to deposit 77 currency notes of Rs. 500/- denomination in the A/c of Mohd. Kalam and out of these currency notes, 71 currency notes were counterfeit and most of them were of AL and FH series. He and SI Prasun counted and checked the said currency notes. Seizure memo of the counterfeit currency notes was prepared by SI Prasun and the same were seized vide seizure memo Ex. PW1/B. SI Prasun prepared rukka which was handed over to him for registration of the FIR at about 8:25 p.m and he returned back at the spot at about 9:15 p.m alongwith the copy of the FIR and rukka. Accused Umar Khan was arrested vide arrest memo Ex. PW6/A. When they were coming out of the branch and outside the branch, accused Umar Khan pointed out towards accused Mohd. Kalam and at his instance accused Mohd. Kalam was arrested vide Ex. PW6/C, personal search of accused Mohd. Kalam is Ex. PW6/D. Both the accused persons were identified by this witness and 77 currency notes were also identified by him. In his cross-examination, he stated that when they reached the bank, some public persons were present in the bank. He stated that the IO had SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 7/22 prepared the site-plan at the instance of the Branch Manager and the accused persons.
10. PW-7 HC Raj Kumar proved recording of DD No.8A as Ex. PW7/A at 10:45 a.m on 17.02.2010.
11. PW-8 SI Prasun Kumar is the IO. He deposed that on 17.02.2010, he was on emergency duty with Ct. Pradeep. At about 10:15 a.m, he received DD No. 8A and thereafter he alongwith Ct. Pradeep reached at ICICI Bank, E-Block, Saket where Bank Manager Surjeet Roy met him and handed over 77 currency notes of Rs. 500/-, one pay-in- slip and a boy, named, Mohd. Umar Khan. Manager also handed him over a written complaint (Ex.PW1/A). On checking, 71 currency notes were found to be fake and remaining 6 currency notes were found to be genuine. Genuine and the fake currency notes were seized vide two different pullandas. He could not tell the serial number of the counterfeit currency notes. Pay-in-slip was seized separately vide seizure memo Ex. PW1/C. Rukka was handed over to Ct. Pradeep at about 8:25 p.m. At the instance of the Bank Manager, he prepared the site-plan of SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 8/22 the spot which is Ex. PW8/B. After registration of the FIR, Ct. Pradeep returned back at the spot with copy of the FIR and original rukka whereafter Mohd. Umar Khan was arrested vide arrest memo Ex. PW8/A, his disclosure was recorded as Ex. PW8/C. He further stated that when they came out of the bank, accused Umar Khan pointed out towards one boy (Mohd. Kalam) and he was also arrested vide arrest memo as Ex. PW6/C and his personal search memo is Ex. PW6/D. On 18.02.2010, search of the house of accused Mohd. Kalam was conducted wherein one counterfeit currency note of Rs. 500/- was recovered which was seized and converted into pullanda. The seizure memo was proved as Ex. PW3/A. He further stated that during investigation, he collected Account Opening Form from the bank in which accused Mohd. Umar Khan tried to deposit the above said cash. The seizure memo of the Account Opening Form was proved as Ex. PW2/A. In May 2010, the case property was sent to FSL, Rohini through Ct. Roop Kishore. He identified both the accused persons in the court and also the case property. In his cross-examination, on behalf of the accused Umar Khan, he stated that he reached SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 9/22 the spot at about 11:00 a.m and remained there till 10:00 p.m. He also stated that when he reached the Bank, PCR personnel were not present in the bank but he could not say whether they were present outside the bank or not. He could not tell as to how many persons were present in the bank premises when he reached the spot. He did not record the statement of the Cashier, no Crime Team was called at the spot. No finger prints were lifted from the spot. CCTV footage of the spot was not obtained by him. He did not record the statement of any public witness. He stayed at the spot for about 11 hours. He stated that during this entire period, he remained at the spot throughout and during his presence, no other police official visited the spot. He also stated that he did not prepare any site plan of the spot in the bank. When he was cross examined for accused Mohd. Kalam, he stated that no identification mark was put on the seized currency notes; he did not get signatures of any other employee of the bank or of the public persons on the memos except the signatures of the Bank Manager and Ct. Pradeep. He further stated that on 19.02.2010 after 10:00 a.m search of the house of the accused Mohd. Kalam was conducted. SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 10/22 Accused Mohd. Kalam got recovered one counterfeit currency note of Rs. 500/- from his house but he could not tell the number of the said currency note. He stated that he did not put any identification mark on the said currency note. He could not tell the name of the person, who had given the fake currency note to accused Mohd. Kalam.
12. In their examination under Section 313 Cr.P.C, accused Umar Khan stated that he does not know Mohd. Kalam and never visited the ICICI Bank on the said day nor he tried to deposit any amount in any one's Account. Accused Mohd. Kalam in his examination under Section 313 Cr.P.C stated that A/c No. 038601509219 is his salary A/c and he was arrested in the PS when he was called by the police personnel. The accused persons did not lead any defence evidence.
13. Ld. Addl. PP has argued that the recovery of the counterfeit currency notes has been proved by the witness. Notes were proved to be counterfeit as per the FSL report. In all, 71 counterfeit currency notes were recovered from the accused No. 1, Umar Khan and one counterfeit currency SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 11/22 note was recovered from the accused No. 2 Mohd. Kalam at the disclosure of accused Umar Khan. He has further stated that although, the complainant could not identify the accused Umar Khan in the Court, but nevertheless, this circumstance is not too relevant keeping in view the lapse of time since the time of the incident and the deposition made by the PW-1/the complainant. The Ld. Addl. PP has thus prayed that the charge under Section 489-B & 489C of IPC, is proved against the accused No. 1, Umar Khan who had possessed the counterfeit currency notes, and had tried to use them by depositing them in the bank. Against the accused Mohd. Kalam, the charge under Section 489-C of IPC is proved as he possessed the counterfeit currency note. Ld. Addl. PP has prayed for conviction of both the accused persons.
14. On the other hand, Ld. Counsel for the accused Umar Khan, has stated that the Prosecution has failed to prove the charges against accused Umar Khan. He has stated that there is an unexplained delay of 10 hours in recording of the FIR, which was registered at about 8.45pm, on 17.02.2010, whereas, the matter was intimated to the SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 12/22 police on the same day at 10.45am. It has been stated that the Prosecution has not explained this inordinate delay of 10 hours in registration of the FIR. He has stated that the circumstances which could prove the accused innocent, were not taken into consideration by the Prosecution solely with the object of falsely implicating him in the present case. He has stated that although the bank is having CCTV cameras, but no CCTV footage was procured by the police to show the presence of the accused inside the bank. Similarly, no fingerprints were lifted by the police from the bank. The pay-in-slip which is stated to be in the handwriting of the accused, was never sent to FSL to prove his handwriting. Ld. Counsel has also stated that no site plan of the bank (inside the bank) was made by the IO, although, site plan of situation of the bank in Saket, has been prepared. Further, it has been stated that every bank maintains a register in which, twice, the police officials are required to make entries, but the IO could not give any information in this regard and he could not even tell the location of that register nor could he tell if any police official came in the bank to make entry in the said register or not, which is unnatural as SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 13/22 the IO had stated that he had remained in the bank till registration of the FIR. Further, it has been stated that neither any eyewitness has been examined by the Prosecution to prove the involvement of the accused, nor the Cashier, nor the Teller, nor any Security Guard, nor any customer was examined. In his examination-in-chief, the complainant was not able to tell the name of the person who deposited the counterfeit notes, but he only stated that the cash deposit of Rs. 38,500/- in denomination of 77 notes of Rs. 500/- each had come in. He could not identify the accused which also is unnatural as the accused according to the Prosecution case, remained with him and the IO for about 10 hours. Ld. Counsel has also stated that the Prosecution has failed to prove that the accused had the knowledge that the said currency notes were fake. Assailing the Prosecution case, Ld. Counsel has prayed for acquittal of the accused Umar Khan.
15. For accused Mohd. Kalam, Ld. Counsel has stated that that the arrest of this accused is on disclosure of co-accused Umar Khan and according to Prosecution, one fake currency note of Rs. 500/- was recovered from accused SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 14/22 Mohd. Kalam. However, surprisingly, the witness of recovery i.e. PW-2 Ct. Ramesh could not tell the number of the said fake currency note, nor could he identify the said fake recovered currency note. She also relied upon the deposition of PW-6/IO, who stated that he had not put any identification mark on the fake currency note seized from the accused Mohd. Kalam, nor did he mention the place of recovery on the Seizure Memo of the said currency note. This witness also could not tell the number of the said currency note. She has argued that no independent public witness was joined in investigation at the time of the recovery of alleged fake currency note, although the IO had stated that the place from where the recovery was effected, was habitated areas. Pleading false implication in the matter, acquittal has been prayed for the accused Mohd. Kalam as well.
16. I have heard both the parties and have perused the records. It is well settled principle of law that the prosecution is duty bound to prove its case beyond doubt against an accused and till the time prosecution discharges this burden, the accused retains his presumption of SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 15/22 innocence. In other words, the onus to prove an offence on a person is only and only on the prosecution. As noted earlier, the accused persons are facing the charge u/s 489 B and 489 C IPC. Section 489 B of the Indian Penal Code provides as under:
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 notes 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 extent to ten years, and shall also be liable to fine.
Section 489-C of Indian Penal Code reads as under:
"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 SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 16/22 with fine, or with both."
17. Both the Sections i.e. section 489 B and 489 C are similar in nature, the only difference being that Section 489 C punishes possession of the counterfeit currency notes while Section 489 B punishes use of the counterfeit currency notes. No wonder, section 489 B therefore prescribes a more stringent punishment as compared to section 489 C. Ingredients of the offence u/s 489B for the purpose of the present case are that:
a) there should be currency notes;
b) they should be counterfeit;
c) they should be used by the accused and
d) accused should possess the knowledge that the said currency notes were counterfeit.
18. One of the necessary ingredients of an offence under Section 489-B and 489-C of IPC is that the accused must be in possession of the counterfeit currency notes. The report of the FSL shows that the currency notes which were sent for examination were counterfeit. However, the question which arises to be decided, is whether the SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 17/22 counterfeit currency notes were found in possession of the accused persons?
19. To prove the possession of counterfeit currency notes from the accused, the Prosecution examined four witnesses namely: PW-1 Surjit Dev Roy - Informant, PW-3 Ct. Ramesh, PW-6 Ct. Pradeep Sharma and PW-8 IO/SI Prasun. Whereas PW 6 and PW 8 deposed about recovery of 71 counterfeit currency notes of Rs. 500/- from accused Umar Khan on 17.2.2010, PW-3 and 8 deposed about recovery of one counterfeit currency notes from accused Mohd. Kalam on 19.2.2010.
20. PW-1 Surjit Dev Roy had proved the recovery of 71 counterfeit currency notes but he was unable to identify the person from whom the said currency notes were recovered. He also could not tell the numbers of the said counterfeit currency notes. He had stated in his deposition that a deposit of Rs. 38,500/- had come in. He was neither able to tell the name of the person who deposited the said cash, nor could he tell the account number in which the said deposit was to be made.
SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 18/22
21. PW-6 and 8 identified the accused Umar Khan to be the person from whom the 71 counterfeit currency notes were recovered but none of these two could tell the numbers of the currency notes which were allegedly recovered from accused Umar Khan.
22. PW-3 and 8 identified the accused Mohd.
Kalam to be the person from whom the one counterfeit currency note was recovered on 19.2.2010 but none of these two could tell the number of the said currency note which was allegedly recovered from accused Mohd. Kalam.
23. If the depositions of the aforesaid four witnesses is sifted what comes out is that the prosecution has not been able to link and connect the either accused person with the recovery of the counterfeit currency notes.
24. Apart from it there are other circumstances which cast serious doubts about the veracity of the prosecution case. First of all there is an unexplained delay in registration of FIR. According to PW-7 HC Raj Kumar, DD entry No. 8A was recorded at 10.45 am. According to PW-5 ASI Suresh Chandra, the FIR was recorded at 8.45 pm. SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 19/22 PW-8 IO/SI Prasun stated that he handed over the rukka to PW-6 Ct. Pradeep at about 8.25 pm for registration of FIR. PW-6 Ct. Pradeep Sharma stated he left with rukka which he received from PW-8 IO/SI Prasun at 8.25 pm. There is no reasonable explanation as to why it took such a long time in registration of FIR till 8.45 pm when the information had already been recived by 10.45 am. This delay of 10 hours in registration of FIR creates doubt about the prosecution story. According to the Prosecution, 71 counterfeit currency notes of Rs. 500/- were recovered in ICICI bank in the early banking hours. Witnesses have deposed that other public persons and staff members were available in the bank at that time. But interestingly, no public person has been made a witness to such recovery, which is quite unnatural. Public persons would have been best witnesses to such a recovery but they were not associated by the police. Even the cashier who had received the cash consisting of counterfeit currency notes, has also not been cited and examined as a witness by the prosecution. All the banks are equipped with CCTV cameras but even the footage of CCTV cameras showing the entry of the accused Umar Khan in the bank and his SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 20/22 depositing counterfeit currency notes with the Cashier has not been produced, which could have been an important piece of evidence. PW-1 had stated that one is required to obtain a token for depositing cash but even the said token has not been produced. PW-8 stated that he obtained a copy of the Account Opening Form of accused Mohd. Kalam from the bank. PW-2 Gaurav Singh deposed that on 11.5.2010 he was working at ITO branch of ICICI Bank and on that day he handed over copy of the Account Opening Form of accused Mohd. Kalam to the IO. This original Form was not produced. There is no evidence as to who informed the police about the incident. It is thus not known as to how the police came to know about the incident. The recovery of single counterfeit currency note from accused Mohd. Kalam is also under cloud. Neither PW-3 nor PW-8 is able to tell the number of the said currency note. The recovery is from the house of accused Mohd. Kalam where according to PW-3, 2-3 family members of the accused were present. Public persons had also gathered near the house of accused Mohd. Kalam but no public person was involved in the said recovery. The identification the counterfeit currency notes is SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 21/22 doubtful as neither the witnesses could tell the numbers of the said counterfeit currency notes nor any identification mark was put on the seized counterfeit currency notes. All these circumstances, taken cumulatively cast serious doubt on the prosecution case. Prosecution has thus not been able to prove its case beyond reasonable doubt against the accused persons. Resultantly, the accused persons are entitled to be acquitted and they are hereby acquitted.
25. File be consigned to Record Room.
Announced in the open Court. (RAJEEV BANSAL) Dated: 11.09.2012 ASJ-03 (South District) Saket Courts, New Delhi SC No. 98/10, FIR No. 39/10 'State Vs. Umar Khan & Anr.' 22/22