Calcutta High Court (Appellete Side)
354/2012 on 11 June, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1 11/06/2013 CRA No. 354 of 2012 In re : Mantu Mia ... Petitioner Mr. Milon Mukherjee Mrs. Kabita Mukherjee ... For the appellants Mr. Manjit Singh Mr. Amartya Ghosh ... For the State This appeal arose out of judgment and order dated 23.5.2012 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Malda for commission of offence under Section 489(C) IPC in Sessions Case No. 114/09.
In the background of this appeal the fact in a nutshell is that one Assistant Commandant of BSF Coy. Commissioner of F. Coy 108 Bn. BSF viz. Kesha Ram lodged one written complaint with I/C, Kaliachak P.S. on 18.10.2007 at 19.45 hrs. through S.I. Sunil Singh of 108 Bn. BSF with the claim and allegation that on 18.10.2007 on information of Antaryani Kumar, D.C. (G) SHQ BSF, Berhampore and the basis of which a special patrol party of BOP Charianantpur, lead by Sri Kesha Ram, Asstt. Commandant, alongwith 01 SO and seven other ranks left BOP Charianantapur at about 4 hrs. At about 6 hrs. the patrol party noticed movement of the suspected person on the kuchha track leading towards Shawajpur. The suspected person tried to flee away in dense mango groves when patrol party challenged him. But, he was finally apprehended by the patrol party and subsequently he was identified as Md. Mantu 2 Mia, aged 28 years, s/o. Manglu Mia of Vill. Sasani, P.S. Kaliachak, Dist. Malda. Thereafter, on being searched fake Indian currency notes amounting to Rs. 1,00,000/- of the denomination of Rs. 500/- each alongwith one Nokia mobile 1110 with Hutch sim no. 9733154432 A/V Rs. 1500/- and one 'bangladeshi gramin phone' sim no. 89880102035030018325 were recovered from his possession.
On the basis of written complaint the Police completed investigation and submitted charge-sheet against the accused persons under Section 489B/489C IPC.
The case was committed before the learned court of sessions and thereafter the learned trial court framed charges under Sections 489B and 489C IPC against the accused person.
The defence case as appeared from the trend of cross- examination and replies given by the accused person at the time of examination under Section 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence.
On trial the learned court below convicted the present appellant by the impugned judgment.
Now, it is to be seen if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 489C IPC reads as under:
S. 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 3 punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
The learned counsel for the appellants submitted that the charge is defective. The date of incident was 18.10.2007 at 6 a.m. The time of reporting was 9.45 hrs. So, the learned counsel questioned about the commission of offence. Also it was contended that seizure was done at 6.00 hrs. It was not from the accused but from S. Singh of BSF Personnel.
On the other hand the learned counsel for the State strenuously argued that this is a case where there is no scope to interfere with the judgment.
To appreciate the case from a better angle some relevant pieces of evidence are required to be noted here.
Ext. 1 is the complaint wherefrom it appears that the BSF Personnel on getting information challenged the present appellant and nabbed him near village Charianantpur. 200 pieces of fake notes each of denomination of Rs. 500/- were recovered from him. Further, one Nokia mobile 1110 with Hutch sim no. 9733154432 A/V Rs. 1500/- and one 'bangladeshi gramin phone' sim no. 89880102035030018325 were recovered from his possession. After observing the paraphernalias, the FIR shows, the appellant was handed over to the Police.
PW 1 presently is a Court Inspector of Police who stated that previously on 18.10.07 he was posted at Kaliachak P.S. and received a complaint from Kesha Ram of BSF and registered the instant case and proved the FIR Ext. 1 and formal FIR (Ext. 2). On recall, he 4 further stated that he is conversant with the handwriting of previous I.O. of Heman Singh, since deceased. He rearrested the accused when BSF handed over the accused to him. He prepared the arrest memo and seized the fake currency notes. He proved that the notes were of denomination of Rs. 500/- each. He prepared level etc. PW 2 is Assistant Commandant of 108 BN BSF. completely corroborated the prosecution case. He was party to the patrol duty and nabbed the accused. Rest witnesses are all other BSF Personnel or Police Personnel. Simply because of that fact there is no point to throw away their evidence because they have no personal animosity with the present appellant. While performing their official duty they apprehended the present appellant. They placed him for trial. Exhaustive discussion of the evidence of witnesses will be repetition of fact. The learned trial court meticulously sifted evidence, examined legality of arrest of accused, seizure of notes, collection of report from Nasik and all allied aspects and discussed the citations appropriately. I am in agreement with the findings of the learned trial court that the ingredients of Section 489B IPC could not be substantiated. But beyond doubt the offence under Section 489C IPC has been proved. Pinpointed questions were asked to the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure. He could not explain the position as to how he got possession of fake notes and what was his intention with those notes. But simply, he denied the offence claiming that he is innocent. It is true that the authority of currency note press, 5 Nasik who examined the notes has not been examined in this case but according to Section 293 of the Code of Criminal Procedure, his report was proved. The accused person was not prejudiced for taking such report. Authenticity of the report of the fake notes was not challenged in the learned court below. In support of the findings arrived at by the learned trial court, he cited a good no. of decisions over the points of written argument submitted by him therein.
The judgment appears to be speaking otherwise. The last but not the least argument of the learned counsel for the appellant was that considering the family position of the appellant and the nature of case, the period undergone should be taken care of as the period of sentence, if at all the Hon'ble Court holds him guilty.
The learned counsel for the State strongly resisted such prayer and submitted that there is no scope for reduction of the sentence.
I have duly considered the submissions made by both the parties. In my opinion, the amount involved is huge. But its impact on Indian currency is enormous. The judgment of the learned court below shows that the accused prayed for mercy by stating that he had his parents and wife and three children and he is the only earning member of the family.
Considering this aspect of the matter and the nature of offence and the period of sentence inflicted by the trial court, I am of the view that justice will be done if the sentence is reduced to 5 6 years and the fine amount is increased to Rs. 40000/-, in default, to suffer R.I. for one year more.
Thus, the order of conviction stands affirmed but the sentence is modified.
Accordingly, the appeal is allowed in part.
The appellant is directed to undergo R.I. for 5 years for commission of offence under Section 489C IPC. But shall have to pay a fine of Rs. 40000/- in default shall suffer R.I. for further one year.
Let a copy of the judgment alongwith the lower court record be sent down immediately to the learned court below for necessary action.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(Toufique Uddin, J.)