Karnataka High Court
Prakash Basavaraj @ Basappa Huded vs The State Of Karnataka By Apmc Police ... on 15 July, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRL.A.No.499/2008 C/W CRL.A.Nos.546/08, 2521/08,
2531/08, 2598/08
IN CRL.A No.499/2008
BETWEEN
1. PRAKASH BASAVARAJ @ BASAPPA HUDED,
AGED ABOUT 29 YEARS
OCC: AGRICULTURE
R/O BOLSHETTI CHWAL,
BAILHONGAL.
2. BASAVARAJ MALLIKARJUNA MAVINAKATI,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE
R/O KOLADUR,
BAILHONGAL. ... APPELLANTS
(By Sri.GANAPATI M. BHAT AND SRI.VISHWANATH
BADIGER, ADV.)
AND
THE STATE OF KARNATAKA
BY APMC POLICE BELGAUM ... RESPONDENT
2
(By Sri.K.S. PATIL, GP)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2)
CR.P.C., AGAINST JUDGEMNT DATED.8.4.2008 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-II AND
ADDL. SESSIONS JUDGE, BELGAUM IN S.C.NO.27/2007
CONVICTING THE APPELLANTS/ACCUSED NO.3 AND 5 FOR
THE OFFENCE P/U/S.489A, 489B AND 489C IPC
SENTENCING THEM TO UNDERGO IMPRISONMNET AND
PAY FINE AND ETC.
IN CRL.A NO.546/2008
BETWEEN
SURESH BASSAPPA BANNAKKI,
AGED ABOUT 29 YEARS,
OCC: COMPLETED B. COM.,
WORKING AS LECTURER
IN KLE SOCIETY'S COLLEGE AT ATHANI,
R/O NESARGI,
TQ BAILHONGAL BELGAUM DIST ... APPELLANT
(By Sri.G.M. BHAT & SRI VISHWANATH BADIGER, ADV.)
AND
THE STATE OF KARNATAKA
BY APMC POLICE BELGAUM .. RESPONDENT
(By SRI. K.S. PATIL, GP)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2)
CR.P.C, AGAINST JUDGMENT DATED 8.4.2008 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-II &
3
ADDL.SESSIONS JUDGE, BELGAUM, IN S.C.NO.27/07
CONVICTING THE APPELLANT/ACCUSED NO.6 FOR THE
OFFENCE P/U/S.489-A, 489B AND 489C OF IPC. AND
SENTENCING HIM TO UNDERGO IMPRISONMENT AND PAY
FINE AND ETC.
IN CRL.A No.2521/2008
BETWEEN
SRI YALLAPA, S/O MALLAPPA HARIJAN
Age:45 YEARS,
R/O HOSAKOTI
TQ BAILHONGAL ... APPELLANT
(By Sri.SANTOSH B MALAGOUDAR, ADV.)
AND
THE STATE OF KARNATAKA
BY APMC POLICE BELGAUM
REPTD BY STATE PUBLIC PROSECUTOR
CIRCUIT BENCH BUILDING
DHARWAD ... RESPONDENT
(By SRI. K.S. PATIL, GP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C., TO SET ASIDE THE JUDGMNT OF CONVICTION
AND SENTENCE DATED 8.4.2008 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-II &
ADDL.SESSIONS JUDGE, BELGAUM, IN SESSIONS CASE
No.27/2007 AND ACQUIT THE APPELLANT AND ETC.
4
IN CRL.A No 2531/2008
BETWEEN
SHIVANAND,
S/O SHIVAPUTRAPPA BUDRAKATTI,
AGE:32 YEARS,
R/O BALSHETTI CHAWL,
TQ BAILHONGAL. ... APPELLANT
(By SRI.N.D. GUNDE FOR SRI BAHUBALI A. DANAWADE,
ADV.)
AND
THE STATE OF KARNATAKA
BY APMC P S BELGAUM
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD ... RESPONDENT
(By SRI.K.S. PATIL, GP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C., BY THE STATE PRAYING SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE PASSED BY
THE LEARNED PRESIDING OFFICER, FAST TRACK COURT-
II BELGAUM IN S.C.NO.27/2001 DATED 08/04/2008,
THEREBY CONVICTING THE APPELLANT FOR THE OFFENCE
P/U/S 489(A) OF IPC AND SENTENCING HIM TO UNDERGO
IMPRISONMENT AND PAY FINE AND ETC.
5
IN CRL.A No.2598/2008
BETWEEN
SADASHIV S/O TAMMANNA HASARE,
Age: 27 YEARS,
R/O NILAJI, TQ RAIBAG ... APPELLANT
(By Sri.NEELENDRA D. GUNDE, FOR
SRI.BAHUBALI A. DHANAWADE, ADV.)
AND
THE STATE OF KARNATAKA
BY APMC P S BELGAUM
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD ... RESPONDENT
(By Sri.K.S. PATIL, GP)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE LEARNED
PRESIDING OFFICER, FAST TRACK COURT-II AT BELGAUM
IN S.C.NO.27/2007 DATED 08/04/2008, THEREBY
CONVICTING THE APPELLANT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 489-A OF IPC AND
SENTENCING HIM TO UNDERGO IMPRISONMENT AND PAY
FINE AND ETC.
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, THE COURT., DELIVERED THE
FOLLOWING COMMON JUDGMENT:
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JUDGMENT
The appellant in Crl.A.2598/08 is arrayed as accused No.1. Appellant in Crl.A.2531/ is arrayed as accused No.2, Appellants in Crl.A.499/08 are arrayed as accused Nos.3 and 5. Appellant in Crl.A.2521/08 is arrayed as accused Nos.4 and appellant in Crl.A.546/08 is arrayed as accused No.6 in S.C.27/207 on the file of Fast Track Court-II and Addl.Sessions Judge at Belgaum.
2. The appellants in the aforestated appeals are hereinafter referred to as accused Nos.1 to 6. Accused Nos.1 to 6 were tried and convicted and sentenced for offences punishable under Sections 489-A, 489-B and 489- C of IPC. Therefore, they are before this Court.
3. I have heard Sri. Nilendra D. Gunde, learned Counsel appearing for accused Nos.1 and 2, Sri.Santhosh B. Malagouder, learned Counsel appearing for accused No.4, Sri.Vishwanath V. Badiger, learned Counsel for accused No.3 and Sri.G. M. Bhat, learned Counsel for 7 accused 5 and 6 and the learned Government Advocate for the State.
4. On going through investigation records, I find that charges have been framed in an omnibus manner. It is the specific case of prosecution that accused 1 to 5 were found in possession of counterfeit currency notes and they were using counterfeit currency notes as genuine notes. Accused No.6 was in the process of counterfeiting currency notes and he was also in possession of counterfeit currency notes with an intention of circulating the same in exchange for genuine currency notes. Therefore, case against accused nos.1 to 5 stands on a different footing from the case against accused No.6.
5. In brief, the case of prosecution is as follows:
On 26.7.2006 PW.1 Jaweed F. Mushapuri (PSI) who was the Station House Officer of APMC Yard Police Station at Belgaum, received credible information from PW.2- Rama Suresh Belawadi, that four persons are in possession of counterfeit currency notes and they are circulating the 8 same as genuine currency notes. PW.1 along with other constables, viz., PW.5-Ayubkhan I. Pathan, PW.6- Keshav G. Mujawar and PW.7- Dundappa L. Balogi immediately proceeded to Mujawar Petrol Pump near APMC Yard and apprehended accused Nos.1 to 4.
6. On personal search of accused Nos.1 to 4, PW.1 found that they were in possession of counterfeit currency notes of Rs.100/- denomination. PW.1 was informed by PW.2 that accused had given him two counterfeit currency notes of Rs.100/- denomination and requested him to give in exchange notes of lesser denomination. He suspected the genuineness of currency notes and informed PW.1. PW.1 seized two counterfeit currency notes from possession of PW.2. PW.1 searched the person of accused No.1- Sadashiv in the presence of panchas and found 6 counterfeit currency notes in his pocket. He seized counterfeit currency notes from accused No.1. On verification PW.1 found that counterfeit currency notes were bearing same serial numbers. There were no security threads and water marks. PW.1 9 prepared a panchanama and indicated serial number and denomination of those counterfeit notes.
7. PW.1 searched person of accused No.2- Shivanand Shivaputrappa Budarkatti and found 12 counterfeit currency notes of Rs.100/- denomination in right side pocket of his trousers. PW.1 seized counterfeit currency notes. On verification PW.1 found the counterfeit currency notes had same serial numbers, there were no security threads and water marks.
PW.1 noted the serial numbers of those notes in the panchanama in the presence of panchas.
8. Thereafter, PW.1 searched person of accused- 3- Prakash Basavraj @ Basappa Huded, found 8 counterfeit currency notes of Rs.100/- denomination in his right side front pocket. On verification PW.1 found they had same serial numbers and there were no water marks and security threads. PW.1 seized the counterfeit currency 10 notes and indicated the serial number and denominations in the panchanama in the presence of panchas.
9. Thereafter PW.1 searched the person of accused-4-Yallappa Mallappa Harijan and found 9 counterfeit currency notes of Rs.100/- denomination in munda pocket of accused No.4. On verification PW.1 found counterfeit currency notes had same serial numbers. There were no security threads and water marks. PW.1 seized the currency notes, noted the serial numbers in panchanama in the presence of panchas.
10. PW.1 brought accused 1 to 4 to APMC Yard police station and registered a case in Crime No.89/06 and submitted first information. PW.1 subjected the seized counterfeit currency notes to property form and handed over further investigation to the Police Inspector.
11. During cross-examination PW.1 has admitted that in the seizure panchanama he had mentioned that seized counterfeit currency notes did not bear Gandhi 11 marks. The currency notes identified by him before the Court were bearing Gandhi marks. It appears PW.1 instead of mentioning absence of water marks has mentioned the absence of Gandhi marks. In any event, the other vital distinctions, such as, absence of security threads and of the notes had same serial numbers have not been controverted. Above all, it was not the case of appellants that seized currency notes were genuine. Apart from this there are no other discrepancies in the evidence of PW.1.
12. The evidence of PW.1 finds corroboration from evidence of PWs.5, 6 and 7 who had accompanied PW.1 to Mujawar Petrol bunk near APMC Yard. At the relevant time, PW.5-Ayubkhan I. Pathan was working as constable in APMC Yard Police Station. PW.5 has deposed that on 26.6.2006 when he was in the police station, PW.1 informed him to get ready for a raid as he had received some credible information. Therefore, PWs.5, 6 and 7 along with other constables proceeded in a police jeep to Mujawar Petrol Pump near APMC Yard. When they reached 12 Mujawar Petrol Pump, on seeing the police jeep accused 1 to 4 attempted to run away. PWs.5 and other constables chased them and apprehended accused 1 to 4. PW.2- Rama Suresh Belawadi a worker of Petrol Pump, informed PW.1-PSI that accused No.1 had given him two counterfeit currency notes of Rs.100/- denomination and requested him to give in exchange currency notes of lesser denomination.
13. PW.5 has given details of possession of counterfeit currency notes and seizure of the same from accused 1 to 4. PW.5 was cross-examined by learned Counsel for accused 1 to 4. Therefore, his evidence in proof of possession of counterfeit currency notes by accused 1 to 4 and seizure of counterfeit currency notes from accused 1 to 4 has not been controverted.
14. PW.6-Keshav G.Mujawar was working as constable in APMC Yard Police Station. The evidence of PW.6 is more or less similar to evidence of PW.5. PW.6 was not cross-examined regarding possession and 13 recovery of counterfeit notes from accused 1 to 4. Therefore, evidence of PW.6 has not been controverted.
15. At the relevant time, PW.7- Dundappa L. Balogi was working as head constable in APMC P.S. Belgaum. The evidence of PW.7 is similar to evidence of PWs.5 and 6. PW.7 was not cross examined by learned Counsel for accused Nos.1 to 4. Therefore, evidence of PW.7 has remained uncontroverted. Thus, the first part of case of prosecution that accused Nos.1 to 4 were found in possession of counterfeit currency notes of Rs.100/- denomination and PW.1 recovered the same from their possession and that accused were in possession of counterfeit with the intention of using them as genuine currency notes is proved by the prosecution.
16. The learned Counsel for accused 1 to 4 submits that the Expert (Assistant Works Manager, Currency Notes Press, Nasik) was not examined to prove that these notes were counterfeit currency notes.
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The trial Court has relied upon the report of expert by invoking Section 292 Cr.P.C. The opinion of expert and reasons given thereof have not been controverted. In any event, it is not the case of accused that currency notes were genuine or they had reasons to believe that they are genuine. Accused Nos.1 to 4 have no case that they are innocent possessors.
17. The learned Counsel for accused 1 to 4 has relied on the judgment of the Supreme Court reported in 1996(11) SCC 709 (in the case of Megha Singh vs. State of Haryana) to contend that, PW.1 had registered the case and he was the first informant. He had completed major part of investigation. Therefore entire investigation is vitiated. In the aforestated case, the Supreme Court has held that, if complainant himself were to proceed with the investigation there would be an occasion to suspect the fair and impartial investigation. In the case on hand, PW.1 after receiving credible information visited the place of incident, registered the case by lodging first information 15 and later handed over the investigation to the Police Inspector. In the circumstances, it is not possible to hold that the entire investigation was conducted by PW.1.
18. The learned Government Advocate has relied on the judgment of Supreme Court in Crl.A.415/2002 dated 31.03.2010 (in the case of Bhaskar Ramappa Madar and Ors. Vs. State of Karnataka ) wherein, the Supreme Court has held:
"5. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh v. The State of Rajasthan (1976(1) SCC 15 at para 18) and Megha Singh v. State of Haryana (1996(11) SCC 709 at para 4) have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on case to case basis without any universal generalization."
In the case on hand, we do not find any reasons to suspect evidence of PW.1. The evidence of PWs.5 to 7 regarding seizure of counterfeit currency notes from 16 possession of accused Nos.1 to 4 has not been controverted. Therefore, evidence of PW.1 cannot be discarded. Equally so, evidence of PW.5 to PW.7 cannot be suspected.
19. In a decision reported in (1974)3 SCC 584 (Nathusingh vs. State of Madhya Pradesh), the Supreme Court has held that, mere fact that witnesses were police officers was not enough to discard their evidence.
In the case on hand, evidence of PWs.5 to 7 (police constables) has not been controverted. There is no evidence on record to show that PW.1 had any grudge against accused 1 to 4 or he had reasons to falsely implicate the accused 1 to 4 in serious offences like possession and circulation of counterfeit currency notes.
20. The next part of prosecution case relates to arrest of accused Nos.5 and 6, seizure of counterfeit currency notes and other incriminating material objects 17 from their possession. PW.9- Srinivas G. Nayak was working as Circle Inspector of Police. PW.9 had taken up further investigation from PW.1. PW.9 has deposed that on 26.7.2006 he received information from PW.1(PSI, APMC) regarding arrest of accused Nos.1 to 4 and recovery of counterfeit currency notes from their possession and registration of case against them. PW.9 visited APMC Yard Police Station at 8.30 p.m. on 26.7.2006. On interrogation of accused Nos.1 to 4 he learnt about involvement of accused no.5-Basavaraj Mallikarjun Mavinkatti, who was yet to be traced. PW.9 has deposed that on 27.7.2006 at 10.30 a.m. he visited APMC police station and took up further investigation. He received credible information about presence of accused No.5 near emergency ward in KLE Hospital at Belgaum. PW.9, PW.1 and other staff members immediately proceeded to emergency ward of KLE Hospital at Belgaum. They had also taken accused-1 to identify accused No.5 who was found near emergency ward in KLE hospital at Belgaum. PW.9 arrested accused No.5 and searched his person in the presence of panchas 18 (PW.12 and PW.13). PW.9 found 17 counterfeit currency notes of Rs.100/- denomination in right side pocket of trousers of accused no.5. The currency notes were bearing same serial number- 6GV 901046. There were no water marks and security threads. PW.9 seized counterfeit currency notes and prepared panchanama as per Ex.P.P8. Accused No.5 was arrested. Accused No.5 volunteered information that he would show person who had counterfeited currency notes and who had sold counterfeit currency notes to accused No.5. P.W.9 recorded voluntary statement of Accused-5 as per Ex.P.9. As volunteered by accused No.5, PW.9 took Accused No.5 along with PW.1 (PSI) and other staff members in police jeep to Bailhongal. Accused No.5 led them to double road leading to Kittur Channamma Park in Bailhongal town where the police jeep was stopped. Accused No.5 got out of the jeep and led the Police Officers to a shopping complex. He took them to the I floor of the shopping complex and showed the shop in the middle of row of the shops and showed the person (accused No.6) sitting in the shop and informed that he 19 was the person who had counterfeited Rs.100/- denomination currency notes and also showed the machine that was used for printing counterfeit currency notes. He disclosed his name as Suresh (accused No.6). PW.9 searched the person of accused No.6 and found 8 counterfeit currency notes of Rs.100/- denomination in his shirt pocket. They were bearing Sl.Nos.6DA 013991. On further search of trousers of accused No.6, PW.9 found 13 counterfeit currency notes of Rs.100/- denomination and out of them 8 notes bear Sl.No.OHM 760243 and they had same serial number and the remaining 5 notes bear Sl.Nos.6GV 901066. In all 21 counterfeit currency notes of hundred rupees denomination were seized from the possession of accused No.6 in the presence of panchas. PW.9 seized Epson Stylus CX 15 scan- printer from the shop in possession of accused No.1 which was in working condition. PW.9 seized white papers used for printing notes of Rs.100/- denomination. PW.9 also seized JK Excel bond papers bundle, one cutter, cello tape and a ruler 20 scale under panchanama marked as Ex.P.10. Thereafter, he took accused no.6 to police station.
21. The seized counterfeit notes in all 75 were sent to General Manager, Currency Notes Press, Nasik through PW.8-Tukaram G. Mohite. PW.9 carried the counterfeit notes kept in a sealed bag to Nasik on 9.10.2006 and he received acknowledgement. PW.8 brought back the report of Expert and counterfeit currency notes after they were examined by expert. The contents of report would reveal that seized currency notes are fake. The expert has assigned reasons in support of his opinion.
22. The learned Counsel for the accused would submit that prosecution has failed to prove that counterfeit currency notes could be made by using MO-5 Epson Stylus CX.15 scan printer. The learned Counsel for accused would submit that without a computer, genuine currency notes cannot be fed to scanner to take out prints, which I am not persuaded to accept for the following reasons: 21
23. As per the information available in the website, Epson Stylus Scanner Printer, All-in-one, can be used without personal computer for scanning, printing and copying. It is not the contention of accused before the Trial Court that it was not possible to counterfeit currency notes by using scanner printer. It is also not demonstrated by the learned Counsel for accused that scanner-printer cannot be used to counterfeit currency notes. The counterfeit currency notes seized in this case are counterfeited by scanning genuine notes and obtaining printouts of the same. In the circumstances, submission of learned Counsel for accused that it is not possible to counterfeit currency notes by using scanner printer cannot be accepted.
24. Above all, accused No.6 is not charged for an offence punishable under Section 489-D which provides punishment for possession of instruments or materials for forging or counterfeiting currency notes. Under Section 489A it is not only counterfeiting but also whoever 22 knowingly performs any part of the process of counterfeiting any currency note is made punishable. Under Sections 489-B and 489-C Indian Penal Code, using of forged or counterfeit currency notes as genuine currency notes or possession of forged or counterfeit currency notes with an intent to use the same as genuine are made punishable.
25. There may be variation in the degree of features between forged and counterfeit currency notes. The forged currency notes will have glaring features of forgery. Whereas counterfeit currency notes will have features which require careful examination and scrutiny to find out features of counterfeit currency notes. Therefore, it is not necessary for the prosecution to prove the process for making forged currency notes or counterfeit currency notes, more particularly, when accused No.6 was not charged for possession of instruments to counterfeit currency notes.
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26. The Learned Counsel for accused has relied on the judgment of the Supreme Court reported in AIR 2001 S.C. 3074 (Umashanker vs. State of Chhattisgarh) to contend that in the absence of mens rea, an offence under Section 489-B cannot be proved. The learned Counsel would submit that prosecution has failed to prove that accused were in conscious possession of forged or counterfeit currency notes with an intention of using the same as genuine notes.
The essential ingredients of offence being that the accused must be knowing or had reasons to believe that the currency notes are forged or counterfeit. The question whether accused was in conscious possession of counterfeit currency notes with intention to circulate the same as genuine currency notes would depend on facts and circumstance of each case.
27. In the case on hand, accused No.1 is resident of Niloji village in Raibag Tq, accused Nos.2 and 3 are residents of Bolshetti Chawl in Bailhongal, Accused No.4 is 24 resident of Hosakoti in Bailhongal taluk, accused No.5 is resident of Koladur village in Bailhongal taluk and accused No.6 is resident of Nesargi village in Bailhongal taluk. Accused Nos.1 to 4 were found near Mujawar Petrol Pump near APMC Yard at Belgaum. They have not offered any explanation for their presence near APMC Yard. The counterfeit currency notes of Rs.100/- denomination recovered from their possession bear the same serial numbers. The absence of security threads and water marks and quality of paper used for printing these notes would lead to draw an inference that they are counterfeit currency notes. As could be seen from evidence on record, one could make out that seized currency notes are counterfeit currency notes, by mere glance even without aid of expert's opinion.
28. Accused No.5-Basavaraj Mallinkatti was found in KLE Hospital which is near the place of incident. He was found in possession of 17 counterfeit currency notes of Rs.100/- denomination. Accused No.6-Suresh Basappa 25 Bannakki was found in possession of 21 counterfeit currency notes out of which 13 notes bear serial number 6DA 013991 and 8 notes bear same serial nos.OHM.760243. They did not bear security threads and water marks. They were printed on JK Excel bond paper. PW.1 (PSI) and other witnesses have identified them as fake and counterfeit currency notes. It is not a situation where one or two counterfeit notes were found in a wade of genuine currency notes to presume that accused were innocent possessors. Above all, accused have not given any explanation about their presence near place of incident and they have not offered any plausible explanation to infer that they were innocent possessors.
29. The information given by accused No.5 led to seizure of Epson Stylus CX 15 scan printer from the shop of accused No.6 who was allegedly running a computer center. The recovery of counterfeit currency notes from possession of accused-6 which were as many as 21 would lend support to case of prosecution that accused were not 26 innocent possessors. They were in possession of counterfeit currency notes with intention of circulating them as genuine currency notes. The facts from evidence on record would lead an irreversible conclusion that accused were in possession of counterfeit currency notes with an intention of using the same as genuine currency notes. Their state of mind and essential ingredient of mens rea will have to be inferred from the facts and circumstances established from the evidence on record.
30. As already stated, it is not a situation where accused were in possession of one or two fake currency notes along with genuine currency notes. It is not the case of accused that they had accidentally come in possession of these counterfeit currency notes. The prosecution has proved that accused Nos.1 to 6 committed offences punishable under Sections 489-B and 489-C read with Section 34 of IPC and accused No.6 committed an offence punishable under Section 489A of IPC.
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31. The learned Trial Judge has convicted and sentenced accused nos.1 to 6 for offences punishable under Sections 489A and 489B and 489C read with Section 34 IPC. Therefore, conviction and sentence of accused Nos.2 to 6 for offence punishable under Section 489-A cannot be sustained.
32. In the result, I pass the following:
ORDER Criminal Appeals are accepted in part. The impugned judgment as it relates to conviction and sentence of accused Nos.1 to 6 for offences punishable under Sections 489-B and 489-C are confirmed. The conviction and sentence of accused Nos.1 to 5 for an offence punishable under Section 489A is set aside. The conviction and sentence of accused No.6 for an offence punishable under Section 489A are confirmed.
Accused Nos.1 to 5 shall surrender to undergo remaining part of sentence imposed for offences punishable under Sections 489-B and 489-C of IPC and 28 they shall also pay fine imposed by trial Court for aforesaid offences.
Accused No.6 shall surrender before trial Court to undergo remaining part of sentence imposed for offences punishable under Sections 489A, 489B and 489C imposed by the trial Court and also to pay fine in terms of the impugned judgment.
The period of detention undergone, if any, shall be given set-off as provided under Section 428 Cr.P.C.
The learned Counsel for accused No.1 submits that accused no.1 is HIV patient. If it is so, the Superintendent of concerned jail shall provide necessary medical treatment to accused no.1.
Office shall send back the records along with a copy of this judgment to the trial Court with a direction to secure accused to implement sentence in terms of this judgment.
SD/-
JUDGE Sub/