Himachal Pradesh High Court
Reserved On: 12.9.2024 vs State Of H.P on 29 October, 2024
2024:HHC:10410 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 337 of 2007 Reserved on: 12.9.2024 Date of Decision: 29.10.2024 Hardyal Singh and another ...Appellants Versus State of H.P. ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellants : Mr. N.S. Chandel, Senior Advocate, with Mr. Vinod Kumar Gupta, Advocate.
For the Respondent/State : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 31.8.2007, passed by learned Additional Sessions Judge, (Fast Track Court), Una, H.P., (learned Trial Court), vide which the appellants Hardayal Singh and Mohinder Pal Singh (accused before learned Trial Court) were convicted of the commission of offences punishable under Sections 489-B and 489-C of the Indian Penal Code (IPC) and sentenced in the following manner:- 1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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(a) Accused Hardyal Singh
Under Section 489-B of IPC. To suffer simple imprisonment for five years, pay a fine of ₹5,000/-
and in default of payment of the fine, to further undergo simple imprisonment for six months.
Under Section 489-C of IPC. To suffer simple imprisonment for three years. Both the sentences shall run concurrently.
(b) Accused Mohinder Pal Singh.
Under Section 489-C of IPC. To suffer simple imprisonment for three years years.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 489-B and 489-C read with Section 34 of IPC. It was asserted that Sanjeev Kumar (PW1) was running a shop at Bharwain. The accused came to his shop on a motorcycle on 3.4.2007 at about 4.20 PM and purchased two 3 2024:HHC:10410 breads. They handed over a currency note of ₹500/- bearing Serial No. 9AD794902 towards the cost of the bread. Sanjeev Kumar returned ₹480/- to the accused, however, he became suspicious and took the currency note to the bank and showed it to the bank officials. The bank officials revealed that the currency note was fake. Informant Sanjeev Kumar followed the accused on his scooter bearing registration no. HP-19A-8241 and apprehended them at Lovely Sweets Shop, near Bus Stand, Chintpurni. The accused revealed their names as Hardyal Singh and Mohinder Pal Singh on inquiry. The informant, Vipin Kumar (PW4) and Kuldeep Singh (PW13) apprehended the accused, brought them in the Ambulance bearing registration No.HP-20- 3770 to the Police Post and narrated the incident to the police. An entry No. 16 in the daily diary (Ex.PW1/A) was registered, which was sent to the Police Station where FIR (Ex.PW7/A) was registered. ASI Bishwas Kumar (PW15) investigated the matter. He searched Hardyal Singh in the presence of Sanjeev Kumar and Vipan Kumar and recovered six counterfeit currency notes of ₹500/- (Ex.P2 to Ex.P7), and genuine currency notes worth ₹8660/-(Ex.P15). These were seized vide memo (Ex.PW1/C). Six currency notes (Ex. P8 to Ex.P13) and genuine currency notes 4 2024:HHC:10410 worth ₹11,045/- (Ex.P14) were found during the search of Mohinder Pal, which were seized vide memo (Ex. PW1/D). ASI Bishwas Kumar prepared the site plans (Ex.PW15/A and Ex.PW15/B). The currency notes (Ex.P1 to Ex.P15) were sealed in a parcel with seal P. The seal impression 'P' (Ex.PW15/C) was taken on a separate piece of cloth and the seal was handed over to Sanjeev Kumar after the use. The statements of witnesses were recorded as per their version. The parcels were deposited with HC Pawan Kumar (PW11), who handed them over to MHC Kusha Dutt (PW7). These were sent to FSL, Junga for analysis. Dr. Meenakshi Mahajan (PW14) examined the curency notes and found that currency notes marked Q1 to Q13 were counterfeit. She issued the report (Ex.PW14/A). Statements of witnesses were recorded as per their versions, and after the completion of the investigation, a challan was prepared and presented in the Court of learned Judicial Magistrate First Class, Amb, District Una, H.P., who committed it for trial to learned Sessions Judge, Una. Learned Sessions Judge, Una assigned the case to learned Additional Sessions Judge, Fast Track Court, Una, H.P. (learned Trial Court).
3. The learned Trial Court charged accused Mohinder Pal Singh with the commission of an offence punishable under 5 2024:HHC:10410 Section 489-C and accused Hardyal Singh with the commission of offences punishable under Sections 489-B and 489-C of IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 15 witnesses to prove its case. Sanjeev Kumar (PW1) is the informant to whom the currency note of ₹500/- was given. Rakesh Kumar (PW2) was working in the bank to whom the currency note was shown. Constable Ashok Kumar (PW3) is the witness of recovery of the affidavit. Vipin Kumar (PW4) is the shopkeeper from whose shop the accused were apprehended, but he did not support the prosecution case. Rattan Singh (PW5) is the father of Mohinder Pal, who proved the purchase of a motorcycle by Mohinder Pal. Constable Nardev Singh (PW6) proved the entry in the daily diary. HC Kusha Dutt (PW7) was working as MHC, with whom the case property was deposited. HC Manmohan Singh (PW8) was also working as MHC, who sent the case property to FSL, Junga. Constable Vipan Kumar (PW9) carried the case property to FSL, Junga. HC Subhash Chand (PW10) is the witness to the recovery of the currency note. HC Pawan Kumar (PW11) was working as MC to whom the case property was initially handed over. HHC Satnam Singh (PW12) carried the entry in the daily diary to Police 6 2024:HHC:10410 Station. Kuldeep Singh (PW13) accompanied the informant to the Police Post. Dr Minakshi Mahajan (PW14) analysed the currency notes and issued the report. ASI Biswas Kumar (PW15) conducted the investigation.
5. The accused, in their statements recorded under Section 313 of Cr. P.C., denied the prosecution case in its entirety. They stated that the witnesses deposed against them falsely. They were going to Mata Chintpurni and were stopped by the police on a Naka near Chintpurni. The police demanded money from them. They refused and a false case was made against them. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. The mere fact that Vipan Kumar (PW4) had not supported the prosecution case was not sufficient to doubt it. The evidence on record showed that the accused had handed over a currency note of ₹500/- to the informant. They were also found in possession of other currency notes, which ruled out their innocent possession. The plea taken by the accused that a false case was made against them because of the quarrel with the police was not acceptable. Both the accused were in possession of counterfeit currency 7 2024:HHC:10410 notes and accused Hardyal had used the counterfeit currency note as genuine. Therefore, the accused were convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused have filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. The prosecution failed to provide any evidence regarding the knowledge of the accused. Vipan Kumar (PW4) did not support the prosecution case and his testimony was sufficient to doubt the prosecution case regarding the arrest of the accused and the recovery of counterfeit currency notes from them. Independent witnesses were not examined even though they were available and could have been associated by the police. There were major contradictions and material improvements in the testimonies of the prosecution witnesses. Learned Trial Court held that the accused had failed to disclose the source of the counterfeit currency notes and they were liable. This was contrary to the basic principle of criminal law which requires prosecution to prove its case beyond a reasonable doubt. Therefore, it was prayed that the present appeal be allowed and 8 2024:HHC:10410 the judgment and order passed by the learned Trial Court be set aside.
8. I have heard Mr. N.S. Chandel learned Senior Counsel, assisted by Mr. V.K. Gupta, learned counsel for the appellant/accused and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.
9. Mr. N.S. Chandel, learned Senior Counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The statement of Dr. Meenakshi Mahajan was not sufficient to prove that the currency notes were fake. Dr Meenakshi Mahajan does not fall within the definition of an expert, and only the experts from Note Printing Press or Security Printing Press were competent to depose about the currency notes being counterfeit as per Section 292 of Cr.P.C. Vipan Kumar (PW4) did not support the prosecution case and the essential ingredients of Section 489-B of IPC that the accused were aware of the fact that currency notes were fake and had used them as genuine was missing. No person has deposed about the knowledge of the accused. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
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10. Mr Prashant Sen, learned Deputy Advocate General for the respondent/State, submitted that Dr Meenakshi Mahajan specifically stated in her statement that she had undergone training regarding the currency notes and this part of her testimony was not challenged. She would fall within the definition of an expert and the learned Trial Court had rightly relied upon her testimony. The mere fact that an independent person had not supported the prosecution case is not sufficient to discard it. Therefore, he prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. Dr Meenakshi Mahajan (PW14) stated in her examination-in-chief that she had received training in respect of the examination of questioned documents from the National Institute of Criminology and Forensic Science, New Delhi, Government Examiner of Questioned Documents, Shimla, State Forensic Science Laboratory Hyderabad and Currency Notes Press at Nasik. Thus, she categorically stated that she had not only undergone training regarding the questioned documents from various institutions, but she had also undergone training 10 2024:HHC:10410 from Currency Note Press at Nasik. It was not even suggested to her that she had not undergone training at Currency Notes Press, Nasik. It was only inquired from her if she had not brought any certificate regarding her qualification and experience. The part of her testimony regarding her undergoing training at Currency Notes Press, Nasik has remained unchallenged and has to be accepted as correct. Thus, the submission that Dr Meenakshi Mahajan does not fall within the definition of an expert and only an expert from Note Printing Press has to be examined to prove that a currency note is fake cannot be accepted.
13. Dr. Meenakshi Mahajan (PW14) has given detailed reasons for her opinion that currency notes were fake. She mentioned that currency notes were found to be counterfeit because of defective quality of security thread, door latent image, absence of intaglio printing, defective micro-printing, improper location and different design of watermark, non- superimposition of front to back register, and absence of genuine ultraviolet features. These reasons are sufficient to conclude that the currency notes were fake.
14. A reference was also made to Section 292 of Cr.P.C., which provides how the evidence of the Officers of the Mint or 11 2024:HHC:10410 Note Printing Press or Security Printing Press has to be taken. This provision will not help the accused because it merely provides a mode of proof and does not provide that only the Officers of Mint, Note Printing Press or Security Printing Press are competent to depose about the counterfeit currency notes. Hence, the submission that the prosecution was required to get the currency notes examined by the Officers of the Note Printing Press or Security Printing Press and in the absence of such examination, the currency notes cannot be called to be counterfeit is not acceptable.
15. Sanjeev Kumar (PW1) stated that he is running a tea stall and confectionery shop at Bharwain. The accused came to his shop on 3.4.2007 at 4.15 PM on a motorcycle which was being driven by Mohinder Pal. Accused Hardyal Singh was sitting as a pillion rider. They purchased two packets of bread from him. Accused Hardyal gave him a currency note of ₹500/-. He returned ₹480/-. The accused left the shop. He took the currency note and became suspicious that it was a counterfeit currency note. He went to Kangra Central Cooperative Bank and showed it to a bank official, who checked it and found that the note was counterfeit. He followed the accused on his scooter and found 12 2024:HHC:10410 them at Lovely Sweets Shop Chintpurni. He told Hardyal that the currency note given by him was counterfeit. The accused tried to run away from the spot but they were apprehended by the informant with the help of Vipan Kumar and others. The accused were brought to Police Post Chintpurni in a vehicle owned by Temple Trust Chintpurni. He handed over the currency note to the police and narrated the incident to the police. The police recorded an entry (Ex.PW1/A) and seized the currency note vide memo (Ex.PW1/B). He identified the currency note which was signed by him. A personal search of the accused was conducted. Currency notes worth ₹8,000/- were found in the possession of Hardyal out of which six currency notes worth ₹500/- were counterfeit. These were seized vide memo (Ex.PW1/C). A search of Mohinder Pal was conducted and six currency notes worth ₹1,000/- were found in his possession which were seized by the police vide memo (Ex.PW1/D). He identified the currency notes and the accused. He was permitted to be cross-examined because he could not remember the exact amount of genuine currency notes recovered from each of the accused. He admitted in his cross-examination by learned Public Prosecutor that the currency notes worth ₹11,045/- were 13 2024:HHC:10410 recovered from accused Mohinder Pal and genuine currency notes worth ₹8660/- were recovered from accused Hardyal. He could not tell the exact details of the currency notes as he had forgotten the same with time.
16. He stated in his cross-examination by learned counsel for the defence that the distance of Vipan's shop was 200 mtrs. He generally puts the currency notes in his cash box. He opens the shop at 5.00 AM and closes it at 7.30 PM in the summer and 6.30 PM in winter. He had shown the counterfeit currency note (Ex.P1) to the bank official but he did not remember the name of the official. He had not gone to the Manager of the bank. The official was sitting near the gate. He did not remember whether he was a Peon or Clerk. He did not remember the details of the currency notes (Ex.P14 and Ex.P15). The names of the accused were told to him by the police at the Police Post at Chintpurni. No expert was present at the time of the recovery. He admitted that there were many shops located between his shop and Kangra Central Cooperative Bank which were open. He checked the currency notes immediately after the accused had left his shop and he rushed to the bank within five minutes. He admitted that many people came to his shop from Punjab while 14 2024:HHC:10410 visiting Mata Chintpurni. He denied that the accused did not purchase any bread from him or accused had not handed over the counterfeit currency note to him.
17. It was submitted that this witness was declared hostile by the prosecution which means that the prosecution does not consider him worthy of credit and learned Trial Court erred in relying upon his testimony. This submission is not acceptable. This witness was declared hostile because he was unable to reveal the exact amount of genuine currency recovered from the accused. He stated that he had forgotten the details. He was bound to forget the details with time and this was no reason for declaring him hostile or permitting him to be cross- examined. It was laid down by the Hon'ble Supreme Court in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323: 2000 SCC OnLine SC 1727 that the permission to cross- examine a witness should not be given if the witness has omitted some minor post-event detail and even if the witness was declared hostile, the same is not sufficient to discard his testimony. It was observed at page 213:
"10. The testimony of PW 2 has been assailed on the ground that as he was allegedly declared hostile by the Public Prosecutor, no reliance can be placed upon his testimony. We have scrutinised the statement of PW 2 and 15 2024:HHC:10410 find that he had fully supported the case of the prosecution in all material particulars. In his examination-in-chief the witness after vividly explaining the manner in which the extrajudicial confession was made, stated that after walking on foot for about 4 kilometres he, in the company of others, reached Police Station Karanpur at about 12.00 noon and lodged the report but the police station did not register a case on the pretext that it was a family matter and that the report would be registered only after making an inquiry in the village. Finding such a statement to be resiling from the earlier testimony, the Public Prosecutor sought the permission of the court to declare the witness hostile and "cross-examine him on the ground that he had not stated that Exhibit P-2 was not registered at once". The trial court obliged the Public Prosecutor by permitting him to cross-examine to that extent. The cross-examination by the Public Prosecutor is restricted to the lodging of the first information report and not with respect to the factum of his deposition insofar as it relates to the making of extrajudicial confession by the appellant. The defence also appears to be conscious of the fact that the Public Prosecutor had sought permission to cross-examine the witness to a limited extent. The witness was subjected to lengthy and detailed cross-examination with respect to the making of extrajudicial confession by the appellant. The trial as well as the High Court rightly relied upon his testimony to hold that the appellant had voluntarily made the extrajudicial confession to the aforesaid witness.
11. There appears to be a misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389:
1976 SCC (Cri) 7: AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no 16 2024:HHC:10410 legal bar to base the conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233: 1976 SCC (Cri) 566: AIR 1977 SC 170] it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground, his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross- examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases, the court can rely upon the part of the testimony of such witness if that part of the deposition is found to be creditworthy.
12. The terms "hostile", "adverse" or "unfavourable"
witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", and "unwilling witness" are all terms of English law. The rule of not permitting a party calling the witness to cross-examine is relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law, a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India, the right to cross- examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or re- examination except with the permission of the court. The court can, however, permit leading questions as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. 17
2024:HHC:10410 Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross- examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Admn. [(1976) 1 SCC 727: 1976 SCC (Cri) 160: AIR 1976 SC 294] held: (SCC pp. 741-43 & 745-46, paras 38-40 & 52) "38. To steer clear of the controversy over the meaning of the terms 'hostile' witness, 'adverse' witness, and 'unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath Chattorji v. Prasannamoyi Debya [AIR 1922 PC 409: 27 CWN 797]. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to 18 2024:HHC:10410 extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', and 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion and conflict that had so long vexed the English courts.
39. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under English law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Sections 154 or 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of English law. The Criminal Law Revision Committee of England in its Eleventh Report made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
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40. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and applying the Indian Evidence Act, has been pointed out in several authoritative pronouncements. In Praphullakumar Sarkar v. Emperor [ILR (1931) 58 Cal 1404: AIR 1931 Cal 401 (FB)] an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'. It was emphasised that these departures from English law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
***
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
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13. We deprecate the manner in which the prayer was made by the Public Prosecutor and permission granted by the trial court to cross-examine Jarnail Singh (PW 2) allegedly on the ground of his being hostile. On facts, we find that the said witness was wrongly permitted to be cross-examined. It was only on a post-event detail that he did not concur with the suggestion made by the Public Prosecutor. That single point, in our opinion, was too insufficient for the Public Prosecutor to proclaim that the witness made a volte face and became totally hostile to the prosecution. Otherwise, also, the permission granted and utilised for cross-examination was limited to the extent of the time of lodging the first information report (Exhibit P-
2). There is no reason to disbelieve PW 2 who is closely related to the appellant and has no reason to falsely implicate, particularly when no inducement, threat or promise is allegedly given or assured.
18. In the present case, the informant was not contradicted with reference to his previous testimony and was not shown to have made inconsistent statements on two different occasions. Hence, his credit has not been impeached with reference to the previous statement and he cannot be called a witness unworthy of the credit. Further, the testimony of the hostile witness is not effaced from the record and the part of his testimony that is consistent with the prosecution case or the defence version and corroborated by other evidence that can be relied upon. Therefore, submission that the testimony of the informant has to be discarded because he was declared hostile by the prosecution is not acceptable.
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19. It was submitted that there are many shops between his shop and the bank and he needed not to visit the bank to verify the genuineness of the currency notes. He could have had the currency note examined by any shopkeeper. This submission is not acceptable. When the informant became suspicious about the genuineness of the currency notes, it was natural for him to rush to the bank to get the currency note examined by some bank official who would be better equipped than the ordinary person to find out whether the currency notes were fake or not. Therefore, he was justified in going to the bank and getting the currency note examined by the bank official.
20. His testimony is corroborated by Rakesh Kumar (PW2), who stated that he was working as a water carrier in the Kangra Central Cooperative Bank, Bharwain. Sanjeev Kumar (PW1) came to Kangra Central Cooperative Bank, Bharwain on 3.7.2007 at about 4.30 PM and showed him a currency note of ₹500/-. Sanjeev Kumar enquired whether the currency note was genuine or not. He looked at the note and told Sanjeev Kumar that it was a counterfeit currency note. He stated in his cross- examination that he was a water carrier and not an expert. He did not remember whether the currency note was signed when it was 22 2024:HHC:10410 shown to him. The informant met him outside the bank on a roadside and the currency note was shown to him. The informant returned without entering into the bank. He denied that no currency note was shown to him.
21. It was submitted that he is not an expert and is merely a water carrier, therefore, he could not have deposed about the currency note being counterfeit or genuine. This submission cannot be accepted. He was working in the bank and as per the report of analysis; the currency note had a defective quality of security thread, absence of intaglio printing, improper location of watermark and non-superimposition of front to back register which would have enabled any person to look into the same and find out whether the note was genuine or not. Further, the opinion of this witness was not final and it merely confirmed the suspicion of the informant. Therefore, the fact that this witness had identified the currency notes as counterfeit will not adversely affect the prosecution case.
22. Vipan Kumar (PW4) did not support the prosecution case. He stated that he did not know anything about the case. He had signed the documents at the instance of the police. He was permitted to be cross-examined. He denied that the accused 23 2024:HHC:10410 came to his shop on 3.4.2007 on a motorcycle. He denied that Sanjeev Kumar also came to his shop and inquired about the accused and told him that the accused had purchased two packets of bread against a counterfeit currency note of ₹500/-. He denied that he, Sanjeev Kumar and other persons had caught the accused. He denied that the police had seized counterfeit currency notes from the informant. He denied that the search of the accused was conducted during which counterfeit currency notes and genuine currency notes were recovered. He denied the previous statement recorded by the police or that he was deposing falsely to save the accused from punishment.
23. ASI Bishwas Kumar (PW15) specifically stated that he had recorded the statement of Vipan Kumar (Ex.PW15/D) as per his version. He denied in his cross-examination that Vipan Kumar never visited the Police Post, Chintpurni nor did he give any statement. A denied suggestion does not amount to any proof and it is not sufficient to discard the testimony of ASI Bishwas Kumar that he had recorded the statement of Vipan Kumar as per his version.
24. Thus, Vipan Kumar is shown to have made two inconsistent statements on two different occasions: one before 24 2024:HHC:10410 the Police and one before the Court. Thus, his credit has been impeached under Section 155(3) of the Indian Evidence Act and he is shown to be a witness who is unworthy of the credit. Therefore, no reliance can be placed upon his testimony and the learned Trial Court had rightly discarded the same. (please see Dilo Begum vs. State of H.P. 2024: HHC:1519 para 24 to 34)
25. Kuldeep Singh (PW13) stated that many persons gathered at Lovely Sweets Shop, Chintpurni on 3.4.2007 at about 4.30 pm. Sanjeev Kumar and Vipan Kumar were also present. Sanjeev Kumar told him that the accused had given him a currency note of ₹500/-. He took Sanjeev Kumar, Vipan Kumar and the accused to the Police Post, Chintpurni in a vehicle bearing registration no. HP-20A-3770, which was an Ambulance. He stated in his cross-examination that the Ambulance was used for carrying the sick person and remained parked in front of the Pankaj Hotel, ahead of the barrier. Lovely Sweets Shop is located at a distance of 50 meters from the barrier towards Bharwain. The parking place of the light vehicle was near Lovely Sweets Shop. He was not called by any person and went to the spot on his own. 4-5 people were sitting in the vehicle out of whom Sanjeev Kumar and Vipan Kumar were known to him. He dropped them at 25 2024:HHC:10410 the Police Post and left thereafter. He denied that he had not taken the accused or other persons to the Police Post.
26. His statement is corroborated by the entry (Ex.PW1/A), wherein his name has been mentioned as the person accompanying the informant. There is nothing in his cross- examination to show that he is making a false statement or that he has any motive to depose falsely against the accused. His testimony duly corroborates the statement of the informant that the accused were apprehended on the spot and thereafter they were taken to the Police Post, Bharwain.
27. It was submitted that he had used an Ambulance to transport the accused and the other person to the Police Station. This will not make any difference to the prosecution case. The accused were apprehended on the spot and were to be taken to the Police Post which was located at some distance from the spot. His vehicle was nearest to the place and if he had used the Ambulance, the same is not sufficient to discard his testimony.
28. It was submitted that many people had gathered on the spot as per the statements of the prosecution witnesses, however, the prosecution had not examined those persons and an adverse inference should be drawn against the prosecution. 26
2024:HHC:10410 This submission is not acceptable. The people are generally reluctant to join the investigation because it involves repeated visits to the Court and cross-examination by the learned defence counsel. It was laid down by the Hon'ble Supreme Court in Appabhai v. State of Gujarat, 1988 Supp SCC 241: 1988 SCC (Cri) 559 that the prosecution case cannot be doubted due to the non- examination of the independent witnesses. It was observed at page 245:
"11. In light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. The experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that a crime like a civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for 27 2024:HHC:10410 the nugget of truth with due regard to probability if any, suggested by the accused."
29. It was laid down by Hon'ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196, that the intrinsic worth of the testimony of witnesses has to be assessed by the Court and if the testimony of the witnesses appears to be truthful, the non- examination of other witnesses will not make the testimony doubtful. It was observed: -
"[10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram were not examined by the prosecution. Dharamvir, son of Sukhdei was also not examined by the prosecution though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained. "
30. It was laid down by the Hon'ble Supreme Court in Srichand K. Khetwani v. State of Maharashtra, 1966 SCC OnLine SC 32 : (1967) 1 SCR 595: AIR 1967 SC 450: 1967 Cri LJ 414 : (1967) 2 SCJ 28 2024:HHC:10410 178, that an adverse inference can be drawn for withholding certain evidence and not for failure to obtain the evidence. It was observed:-
"8. Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence could have been and therefore no question of presuming that that evidence would have been against the prosecution, under Section 114, illustration (g) of the Evidence Act, can arise."
31. In the present case, nothing was shown against the informant, Kuldeep or Vipan that they are not independent persons and the prosecution case cannot be discarded because other persons who were present and could have deposed about the incident were not associated by the police.
32. The testimonies of the informant Sanjeev Kumar and Kuldeep clearly prove that the accused were apprehended on the spot and they were taken to the Police Post, Bharwain. Statement of the informant Sanjeev Kumar also proved that accused Hardyal had handed over a currency note to him which was subsequently found to be counterfeit by Dr. Meenakshi Mahajan (PW14).
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33. ASI Bishwas Kumar (PW15) stated that he conducted a personal search of accused Hardayal and recovered six counterfeit currency notes of ₹500/- each (Ex.P2 to Ex.P7) and genuine currency notes worth ₹8660/-. Similarly, he conducted a personal search of Mohinder Pal and recovered six counterfeit currency notes worth ₹1,000/- each (Ex.P8 to Ex.P13) and genuine currency notes worth ₹11,045/- (Ex.P14). He stated in his cross-examination that he had not called any expert to Police Post, Chintpurni. He was not an expert on counterfeit currency notes. The shop of Sanjeev Kumar was situated at Bharwain towards Mubarakpur. He was not aware of the total sale of the shop. Sanjeev Kumar and Vipan Kumar remained in the Post Post Chintpurni for not more than 1½ hours. He denied that he had set up a nakka and had an altercation with the accused. He denied that he demanded ₹10,000/- from the accused person because he did not have the registration certificate. He denied that he falsely implicated the accused due to the altercation.
34. This witness denied the defence suggestion that he had an altercation with the accused person due to which they were falsely implicated. A denied suggestion does not amount to any proof and is not sufficient to discard the prosecution version. 30
2024:HHC:10410 Moreover, the accused had not made any complaint to any person not even to the learned Magistrate, when they were produced before the Court regarding the false implication. Further, it is difficult to believe that all the witnesses would have supported ASI Bishwas Kumar merely because he had an altercation with the accused persons.
35. HC Subhash Chand (PW10) is the witness to the recovery of the counterfeit currency note of ₹500/-. He stated that Sanjeev Kumar produced a counterfeit currency note of 500/- which was seized by the police vide memo (Ex.PW1/B). He stated in his cross-examination that the distance between the shop of the informant and the Police Post, Chintpurni was about half a kilometre. Shop of the informant was a big shop and he had a good business. He denied that he had set up a nakka, had an altercation with the accused and falsely implicated the accused.
36. This witness has also denied the defence version regarding the false implication of the accused. Sanjeev Kumar- informant and ASI Bishwas categorically deposed about the production of the currency note.
37. The seizure memo (Ex.PW1/C) shows that a currency note bearing Serial No. 9AD794991 was recovered from the 31 2024:HHC:10410 possession of Hardyal Singh. The currency note produced by the informant was bearing Serial No.9AD794908. Thus, the currency note produced by the informant had the same series as the currency note recovered from Hardyal which corroborates the version of the informant that the currency note was handed over to him by the accused.
38. It was submitted that the prosecution is required to prove that the accused knew about the currency notes being counterfeit. The learned Trial Court had rightly held that the possession of a large number of counterfeit currency notes showed the knowledge of the accused. It was laid down by the Hon'ble Supreme Court in Ponnusamy v. State, 1997 SCC (Cri) 217 :
(1995) Cr.LJ 2658 that when the accused had used a forged currency note and was also found in possession of counterfeit currency notes, he was properly convicted in the absence of any explanation from where he had obtained the currency notes. It was observed:-
"The verdicts of the three courts below are similar in convicting and maintaining the convictions of the appellant under Sections 489-B and 420 of the Indian Penal Code. The case of the prosecution against the appellant is that he had purchased paddy from a peasant on payment of 130 forged currency notes of Rs. 100.00 denomination, On the arrest of the appellant, further 32 2024:HHC:10410 forged currency notes were alleged to have been found in his possession for which he had to face a trial separately. All the same. The appellant had no explanation to offer as to wherefrom had he obtained those forged currency notes. Silence on the part of the appellant in such circumstances would by itself be a telling circumstance which would weigh against him in the consideration of the prosecution evidence led against him. In these circumstances, we are of the view that the convictions recorded deserve no alteration and equally there is no scope for reduction of sentence. Maintaining the convictions and sentences of the appellant, we dismiss this appeal." (Emphasis supplied)
39. Therefore, the learned Trial Court had rightly held that the accused was supposed to provide an explanation regarding the source of the currency notes and in the absence of the same, the accused would be imputed with a knowledge of the currency notes being forged.
40. Thus, it was duly proved that accused Hardyal had handed over a counterfeit currency note to the informant. Accused Hardyal and Mohinder Pal were also found in possession of the counterfeit notes. Therefore, accused Hardyal was rightly convicted of the commission of the offence punishable under Section 489-B of IPC and both the accused were rightly convicted for the commission of an offence punishable under Section 489- C of IPC.
41. The learned Trial Court sentenced accused Hardyal to undergo simple imprisonment for five years for the commission 33 2024:HHC:10410 of an offence punishable under Section 489-B and had sentenced both the accused to undergo simple imprisonment for three years for the commission of an offence punishable under Section 489-C of IPC. Keeping in view the fact that counterfeiting currency affects the economy of the country adversely, the sentence of five years and three years cannot be said to be excessive and no interference is required with the sentence imposed by the learned Trial Court.
42. No other point was urged.
43. In view of the above, there is no infirmity in the judgment and order passed by the learned Trial Court. Hence, the present appeal fails and the same is dismissed.
44. Records be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 29th October, 2024 (Chander)