Madhya Pradesh High Court
Santosh Kumar Rathor vs The State Of Madhya Pradesh on 8 May, 2020
Equivalent citations: AIRONLINE 2020 MP 667
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRIJUSTICE VISHNU PRATAP SINGH CHAUHAN
Cr.A. NO.8867/2018
Appellants: 1. Santosh Kumar Rathore,
(In Jail) S/o Shri Buddhu Rathore,
aged about 39 years,
Occupation Agriculture,
2. Balram Singh,
S/o Shri Sudarshan Singh,
aged about 43 years,
Occupation Agriculture,
Both R/o Village Ward No.10,
Vikas Village Dhangawan, P.S.
Jaithari, Distt. Anuppur (M.P.)
Vs.
Respondent: State of Madhya Pradesh,
through Police Station Kotwali,
Shahdol, Distt. Shahdol (M.P.)
Shri Jai Shukla, learned counsel for the appellants.
Shri Vishal Yadav, learned Dy. Govt. Advocate and Shri
Ashok Singh, learned Panel Lawyer for respondent/State.
JUDGMENT
(08/05/2020) The appellants have filed this appeal under Section 374(2) of Cr.P.C. being aggrieved by the judgment of conviction and order of sentence dated 31/10/2018 passed by Special Sessions Judge, Shahdol in Sessions Trial No.209/2007 whereby each appellant stand convicted for the offence punishable under Section 489C of IPC and 2 sentenced to suffer RI for five years along with fine of Rs.5,000/-, in default of payment of fine, additional RI for three months.
2. The case of prosecution against the appellants, in short, is that Vijay Pratap Singh (PW-9) while posted as S.H.O. of Police Station, Kotwali, Shahdol received information on 10/04/2007 that one Ravi Sharma alias Gudda is dealing with fake Indian currency notes and he is coming at bus stand with fake currency notes. SHO- Vijay Pratap Singh called two Panch witnesses Chandrakant Soni (PW-10) and Md Jakir khan (PW-3). and after informing them recorded the said information in Rojnamcha Sanha (Ex.P/1) and moved to spot along with panch witnesses, ASI Pradeep Dwivedi (PW-8), Constable Arvind Pyasi (PW-7), Swatantra Singh, Arvind Dubey, Mahesh Yadav, Satya Narayan (PW-4), Rahees Khan, Pramod Pandey, Shailendra Chaturvedi and driver Chandra Prakas in Government Vehicle No.M.P.03 5682 and recorded that Ravangi(outgoing) in Rojnamcha Sanha (Ex.P/31).
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3. Ravi Sharma met at bus stand and he was informed about his search. Vijay Pratap Singh first made his search along other companions in front of Ravi Sharma and prepared Panchnama Ex.P/2 and P/3 in this regard. Thereafter started searching of Ravi Sharma and found 72 note of Rs.500/-denomination and 190 notes of Rs.100/- denomination counterfeit Indian currency notes in his possession and after perusal of the whole notes, it was found that same number printed on so many notes, seized and prepared search memo (Ex.P/4), seizure memo (Ex.P/5) and arrested Ravi Sharma on spot, prepared arrest memo (Ex.P/6) thereafter came back at Police Station, recorded proceedings in the Rojnamcha Sanha (Ex.P/32), and registered FIR as Crime No.165/2007 (Ex.P/33) at Police Station, Kotwali, Shahdol.
4. A.S.I. Pradeep Dwivedi (PW-8), on the basis of information provided by other co-accused called independent witnesses (Sudhir Gupta (PW-5), Satish Gupta (PW-6) and went to police station Kotma disst. Anuppur. Appellants- Santosh Kumar Rathore and 4 Balram Singh resident of Village Dhangawan were called and interrogated. Appellant-Santosh Rathore furnished information that he is having fake currency notes total Rs.15,000/- and all notes raped in a polythene bag have been buried in backyard of his house, on the basis of information recorded memorandum (Ex.P/22) and in the same way appellant-Balram Singh also furnished information that he is having fake currency notes of Rs.10,000/- and kept buried in the hen house, recorded the information as memorandum (Ex.P/23)in front of both independent witnesses at P.S. Kotma and went along with appllent Santosh Kumar Rathore who dug out the polythene bag and handed over to ASI Pradeep Dwivedi (PW-8) who after seizing the notes, prepared seizure memo (Ex.P/24) before the independent witnesses thereafter went along with appellant-Balram Singh who dug out the fake currency notes and handed over to ASI Pradeep Dwivedi who after seizing the notes, prepared seizure memo (Ex.P/25).
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5. Thereafter ASI Pradeep Dwivedi (PW-8) arrested both appellants-Santosh Kumar Rathore and Balram Singh, prepared arrest memo and all seized notes were sent to the Bank Note Press, Dewas for examination through draft (Ex.P/35) of Superintendent of Police, Distt. Shahdol. A specific report received from the bank Note Press, Dewas (Ex.P/38) by which the currency notes, seized from the possession of both the appellants- Santosh Kumar Rathore and Balram Singh, were found counterfeit Indian currency notes. After investigation, charge sheet filed against both the appellants along with co-accused.
6. Learned trial Court framed charges against both the appellants who abjured the guilt and pleaded for trial. Prosecution examined 11 witnesses to bring charges at home. The appellants were examined under Section 313 of Cr.P.C., denied all incriminating evidence came against them and pleaded defence that they are innocent as they did not commit any offence and they have falsely been 6 implicated. The appellant had not produced any defence or examined any witness in their defence.
7. Learned trial Court after hearing both the parties delivered judgment dated 31/10/2018 whereby acquitted both the appellants of the offence punishable under Section 489B of IPC, however, convicted them for the offence punishable under Section 489C of IPC and sentenced both the appellants as mentioned above.
8. The appellants being aggrieved by that conviction and sentence have preferred this appeal on the ground that learned trial Court has not appreciated the evidence in proper perspective and has committed an error in convicting both the appellants on the basis of statement of Investigating Officer. Both independent witnesses turned hostile and not supported the case of prosecution against both the appellants. No ingredient of offence is made out against the appellants. Prosecution failed to prove the case beyond doubt against both the appellants, thus, it has been prayed that by accepting the appeal, set aside the 7 conviction and sentence passed by the trial Court and acquit them of the offence.
9. Per contra, learned Dy. Govt. Advocate while supporting the impugned judgment passed by the trial Court, submits that both the appellants were found with counterfeit Indian currency in their possession. They did not disclose that why they had counterfeit currency in their possession. Sufficient material is available on record against the appellants, therefore, prays for dismissal of the appeal.
10. Having heard rival submissions of learned counsel for the parties, perused the record of trial Court i.e. S.T. No.209/2007 also perused the evidence and judgment passed by the trial Court.
11. Vijay Pratap Singh (PW-9), in his statement, stated that on 10/04/2007 he was posted as SHO, Police Station, Kotwali, Shahdol received a tip off that Ravi Sharma alias Gudda R/o Chandiya is coming with fake currency notes and he deals with the fake currency. This witness called Panch witnesses-Chandraprakash Soni and Mohd. Jakir 8 Khan and after recording the information in the Rojnamcha Sanha went to bus stand along with other Police escort where he found Ravi Sharma. This witness interrogated Ravi Sharma. On the basis of the information provided by Ravi Sharma, received the fake currency notes in possession of Ravi Sharma (since dead). After coming back to Police Station, Kotwali, Distt. Shahdol recorded proceeding in Rojnamcha Sanha (Ex.P/32) and registered Crime No.165/2007 and lodged FIR (Ex.P/33) at Police Station, Kotwali, Distt. Shahdol and copy sent to CJM, Shahdol, receipt of which is Ex.P/34.
12. ASI Pradeep Dwivedi (PW-8) stated that after registration of FIR, on 29/05/2007 he called independent witnesses Sudhir Gupta (PW-5) and Satish Gupta (PW-6) for interrogation and search of appellants- Santosh Kumar Rathore and Balram Singh and went to Police Station, Kotma. Both appellants met this witness at Police Station, Kotma, there he interrogated the appellants. Both the appellants who are resident of Village Dhangawan 9 which situated under the territorial jurisdiction of Police Station, Jaithari. Appellant-Santosh Kumar Rathore furnished information that he had received fake currency notes from Ramkumar Kewat and he is having fake currency notes total Rs.15,000/- which has been buried in backyard (Bari) of his house This witness prepared memorandum (Ex.P/22) in this regard. In the same way appellant-Balram Singh also furnished information that he is having total Rs.10,000/- fake currency notes which has been buried in the hen house. This witness prepared memorandum (Ex.P/23) in this regard.
13. ASI Pradeep Dwivedi (PW-8) further stated that he went with both the appellants to their village Dhangawan along with independent witnesses and appellant-Santosh Kumar Rathore provided fake notes total Rs.15,000/-. In that notes, ten notes of Rs.500 denomination and 100 notes of Rs.100/- denomination- and this witness prepared seizure memo (Ex.P/24). This witness also stated that appellant-Balram Singh also provided fake currency notes in which ten notes of Rs.500/- 10 denomination and 50 notes of Rs.100/-denomination . This witness prepared seizure memo (Ex.P/25) before the independent witnesses.
14. Vijay Pratap Singh (PW-9) stated that he sent all seized notes for examination to the Manager, Bank Note Press, Dewas through draft (Ex.P/35) of Superintendent of Police, Shahdol and received examination report (Ex.P/38) and all notes seized at the instance of both the appellants, were found counterfeit Indian currency.
15. Perused Ex.P/22, P/23, P/24, P/25. All these proceedings had been conducted before the independent witnesses i.e. Sudhir Gupta (PW-5) and Satish Gupta (PW-6). Satish Gupta (PW-6) turned hostile and has not supported the proceeding of Ex.P/22, P/23, P/24, P/25 and categorically stated that above proceeding had not been done before him. He had signed on the blank papers and in cross-examination, he admitted that he signed on the blank papers at the instructions of Police.
16. Another witness i.e. Sudhir Gupta (PW-5) stated that appellants-Santosh Kumar Rathore and Balram Singh 11 were interrogated by the Police and they furnished information about fake currency and about place where they kept the fake currency notes and further stated that Police took both appellants- Santosh Kumar Rathore and Balram Singh at their residence. Both appellants dug out the currency. This witness further stated that Police counted the notes before this witnesses and also stated that Police seized 100 number of Rs.100/-denomination notes and 10 number of Rs.500/- denomination notes from the appellant-Santosh Kumar Rathore and further stated that Police seized 50 number of Rs.100/- denomination notes and 10 number of Rs.500/- denomination from appellant-Balram and all notes were fake. This witness supported the memorandum (Ex.P/22) of appellant-Santosh Kumar Rathore and memorandum (Ex.P/23) of appellant- Balram Singh and this witness stated that he signed on that memorandums. This witness also supported seizer proceding, this witness signed on that seizure memos (Ex.P/24) of appellant-Santosh Kumar Rathore and(Ex.P/25) of appellant- Balram Singh. 12
17. ASI Pradeep Dwivedi (PW-8) identified fake notes seized from both the appellants as Article-'1' and '2'. Independent seizure witness Sudhir Gupta (PW-5) also identified the notes as Article 'A' and Article 'B'.
18. Sudhir Gupta (PW-5) clearly supported the procedings of ASI Pradeep Dwivedi (PW-8) who recorded information furnished by appellant-Santosh Kumar Rathore on memorandum (Ex.P/22). Perused memorandum (Ex.P/22). There is no doubt left that appellant-Santosh Kumar Rathore furnished information in custody that he is having fake currency notes Rs.15,000/- and buried it backyard of his house. ASI Pradeep Dwivedi (PW-8) stated that appellant-Santosh Kumar Rathore after digging out the fake notes handed over to this witness and this witness found 10 notes of Rs.500/- denomination and 100 notes of Rs.100/- denomination and prepared seizure memo (Ex.P/24). Perused seizure memo (Ex.P/24). This witness categorically mentioned the descriptions of the notes that how many notes are having the same number. Sudhir 13 Gupta (PW-5) also supported this fact and categorically stated that appellant-Santosh Kumar Rathore dug out the notes and after seeing notes in the Court, stated that these notes were seized from the possession of appellnat- Santosh Kumar Rathore and Investigating Officer recorded detail of all serial number in seizure memo.
19. Perused cross-examination of ASI Pradeep Dwivedi (PW-8). On perusal of cross-examination of this witness, nothing has come in his statement that this witness is having any revenge attitude or animosity against appellant-Santosh Kumar Rathore for implicating him falsely. In the same way, Sudhir Gupta (PW-5) categorically supported the statement of chief examination in his cross examination. In para-13 this witness categorically stated that he was present on the spot where notes had been dug out.
20. On the basis of forgoing discussions, there is no doubt left that appellant-Santosh Kumar Rathore was having fake currency notes and the fake notes found in his conscious and exclusive possession and same number 14 was printed on more than one of fake currency notes. Seized notes were sent for examination to the Bank Note Press, Dewas. Ex.P/38 is the expert report. Perused the expert report, it is reflected that the notes seized from possession of appellant- Santosh Kumar Rathore were found counterfeit, this Court is of the firm opinion that prosecution succeeded to prove that counterfeit fake Indian currency notes were found in possession of appellant-Santosh Kumar Rathore.
21. ASI Pradeep Dwivedi (PW-8) recorded the information furnished by appellant-Balram Singh in custody and prepared memorandum (Ex.P/23). This witness categorically stated that appellant-Balram Singh provided an information that he is having fake currency notes Rs.10,000/- and kept buried in the hen house. This fact is supported by independent witness- Sudhir Gupta (PW-5) who was present at that time and signed on the documents. This witness further stated that appellant- Balram Singh took him to the place where he buried the notes and after digging out, provided the currency notes 15 to the Investigating Officer. After perusal of the statement of both the witnesses, this fact clearly came out that on perusal of the currency notes, they found 10 notes of Rs.500/- denomintaion and 50 notes of Rs.100/- denomination and same serial number printed on so many notes. After perusal of cross-examination of both witnesses, nothing has come out that both witnesses are having any revenge attitude or animosity against appellant -Balram Singh for implicating him falsely.
22. On the basis of forgoing discussions, this Court is of the opinion that prosecution succeeded to prove that appellant-Balram Singh was found in conscious and exclusive possession of the fake currency notes and that notes sent to the examiner by draft (Ex.P/35) and received report (Ex.P/38). On perusal of the report (Ex.P/38), it is reflected that all seized notes were found counterfeit Indian currency notes having same number.
23. Learned counsel for the appellants submits that both the appellants were not knowing or having reasons to believe the same to be forged or counterfeit and not 16 intending to use the same as genuine, hence, no ingredients of offence under Section 489C of IPC is made out. Learned counsel for the appellants has placed reliance upon the judgment of Hon'ble Apex Court in the cases of Umashanker Vs. State of Chhattisgarh, (2001) 9 SCC 642, and M. Mammutti Vs. State of Karnataka, (1970) 4 SCC 723. Learned counsel also placed reliance upon the judgment of Kerala High Court in the case of Karunakaran Nadar Vs. State of Kerala, 2000 SC Online Ker 417 and also placed reliance upon the judgment of Calcutta High Court in the case of Jiban Sasmal Vs. The State of West Bengal, 1987 SCC Online Cal 114.
24. Perused all the case-laws. In the case of Umashanker (supra), appellant purchased mango of Rs.5/- and provided Rs.100/- bank note to the seller who on doubting upon that note informed the Police and that note of Rs.100 denomination found forged, thus, in these circumstances, Hon'ble Apex Court found that the applicant was not having any mens rea and having a 17 knowledge that question note was forged, on that basis acquitted the appellant of that case for the offence under Sections 489B and 489C of IPC. In para-8 of the said case, Hon'ble Apex Court held as under :
"8. A perusal of the provisions extracted above, show that mens rea of offence under Section 489B and 489C is, "knowing or having reasons in believe the currency notes or bank notes are forged or counterfeit." Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using its genuine, forged or counterfeit currency notes or bank notes,is enough in constitute offence under Section 489B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency notes or bank notes, is not sufficient to make out a case under Section 489C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea." .........................."
25. In the case of M. Mammutti (supra), Hon'ble Apex Court held that prosecution has to put a specific question to the appellant of that case in order to find out whether the accused knew that the questioned notes were of nature of forged or counterfeit currency note. If the 18 appellant is not having any knowledge that whatever he is having, are forged, no ingredients of Section 489B and 489C are made out. If the notes were of such a nature that mere look in them would convince anybody that it was counterfeit such a presumption could reasonable be drawn.
26. In the case of Karunakaran Nadar (supra), Kerala High Court found that it was not a fake currency, but it was fancy currency because note was not counterfeit. It was a fancy note having printed on that note Reserve Baby of India, on this ground, Kerala High Court held that the note was not counterfeit and forged bank currency note and being a fancy note, acquitted the appellant of that case.
27. In the case of Jiban Sasmal (supra), appellant abetted Rampada Samanta to use counterfeit note as genuine in the market of Rs.10/- denomination. Police seized counterfeit notes in possession of appellant and the appellant of that case was charged for the offence punishable under Section 489B and 489C read with 19 Section 109 of IPC, in that situation, Single Bench of Calcutta High Court found that ingredients of Section 109 of IPC has not been proved and learned trial Court not framed charge under Section 116 of IPC, in these respect, the appellant of that case cannot be convicted under Section 109 of IPC and acquitted him. Facts of this case is totally different from the pending case.
28. Learned counsel appearing for the appellants submits that recently Hon'ble Apex Court in the case of Dipakbhai Jagdishchandra Patel Vs State of Gujrat and others in Criminal Appeal No.714/2019 (arising out of SLP (Criminal) No.5415/2017) on the same ground discharged the appellant of the offence punishable under under Section 489B and 489C of IPC and submitted a print copy of that case-law. Perused. Facts of that case are that three co-accused found a counterfeit currency note of Arabian country and one of co-accused furnished an information that he received fake currency from the possession of the appellant, on that basis Police seized some notes outside the house of the appellant. 20 Hon'ble Apex Court, on these circumstances, discharged the appellant on two counts. One; confessional statement of co-accused pertains to the appellant was inadmissible and no recovery was made from the house of the appellant or in possession of the appellant in his instance. But, in this case counterfeit Indian currency notes recovered at the instance of the appellants herein and seized notes were found counterfeit.
29. Ingredients which are required to constitute an offence under Section 489C of IPC are as follows :
"1. The note in question is a currency note or bank notes,
2. Such note was forged or counterfeited,
3. The accused are in possession of the currency note or bank note,
4. The accused intended to use the same as genuine,
5. The accused new or had reasons to believe the note to be forged.
30. On the basis of forgoing discussions, this Court found that prosecution succeeded to prove that accused were found in possession of the counterfeit Indian currency notes. Meaning thereby above three ingredients 21 have been proved by the prosecution beyond doubt. During examination of accused under Section 313 of Cr.P.C., appellant-Santosh Kumar Rathore was asked that he furnished information to Pradeep Diwvedi that he received the fake/counterfeit notes of Rs.15,000/- from Ram Kumar Kewat and packed in a polythene and buried din the backyard in his house. He simply replied, it is incorrect. The Court further put a question to him that he (appellant-Santosh Kumar Rathore) dug out the currency notes and it was seized by Pradeep Dwivedi before the independent witness Sudhir Gupta, he replied, it is incorrect. The Court clearly used the word 'forged/ counterfeit notes' but appellant-Santosh Kumar Rathore simply denied that fact in examination under Section 313 of Cr.P.C. In the same way, appellant-Balram Singh was also asked the specific question about the fake currency, he simply denied and not furnished any explanation that why he has kept that forged/counterfeit currency in his possession and kept buried that currency. As discussed above, prosecution succeeded to prove that both the 22 appellants were found in possession of counterfeit Indian currency notes and kept in the suspicious condition, not furnished any explanation for keeping that forged currency in his possession. In absence of any reasonable explanation, adverse inference can be drawn against the appellants that they are having a reason to believe that notes were forged and that notes can be used as genuine.
31. The Divisional Bench of this Court in the case of Shabbir Sheik and others Vs. State of M.P., 2018 Cr.L.J. 4126, after referring the cases of Umashankar (supra) and M. Mammuti (supra) held that adverse inference can be drawn against accused for pleading complete denial and inability to provide any explanation regarding possession of forged currency notes. This Court with the help of Section 106 and 114 (h) of the Evidence Act infers that accused was having a knowledge of possession of forged currency and having an intention that currency may be used as genuine.
32. On the basis of forgoing discussions, this Court is of the firm view that no cogent ground and material 23 available which compels this Court to interfere in the finding of conviction under Section 489C of IPC. Maximum punishment provided in Section 489C of IPC is seven year. Learned trial Court imposed sentence of five years RI to each appellant. There is no material available on record that appellants are having a criminal past. Considering this fact, this Court inclines to reduce the jail sentence of appellants from five years to two years for each appellant.
33. Considering the above, this appeal is partly allowed on the point of sentence. Conviction under Section 489C of IPC of the appellants is hereby affirmed. However, the sentence of imprisonment is reduced from five years RI to three years RI for each appellant and fine sentence with default stipulation remains uninterfered.
34. With the aforesaid modification in sentence, this appeal stands disposed of. If any IA is pending, the same stands disposed of.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.05.08 11:32:53 +05'30' 24