Delhi District Court
Additional Sessions Judge02(North) : ... vs State on 14 March, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE02(NORTH) : DELHI
S.C. No. 111/11
ID No. 02401R0154582009
State
Vs.
1 Jahangir
Son of Bhoora
Village Hariyana, Near Joya
PS:Didola,
District Jyoti Bagh Phole Nagar,
Amroha (U.P)
2 Ajam Ali
Son of Buniyad Ali
R/o Asad Nagar, Klyan Pur Road,
PS: Amhora,
District Jyoti Bagh Phole Nagar (U.P)
FIR No. 09/09
PS: Roop Nagar
U/S 489B/489C IPC
Date of Institution: 27.03.09
Date of reserving for judgment:8.2.12 & 29.2.12
Date of pronouncement: 14.3.12
Sessions Case No. 111/11 Page 1/28
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JUDGMENT
In the present case, charge has been framed against accused Jahangir in respect of offence U/S 489C IPC by Ld. Predecessor on 02.05.09. The allegation in the charge is that on 13.01.09 at about 3.30 PM near NDPL Office, Shakti Nagar Chowk, Delhi he was found in the possession of sixty one forged currency notes in the denomination of Rs. 500/ each, which he knew or had reason to believe the same to be forged/counterfeit and intended to use the same as genuine. 2 A separate charge has also been framed against accused Ajam Ali U/S 489C IPC by Ld. Predecessor on the same day. The allegation is that on 15.01.09 at about 7.00 AM, at Outer Ring Road, Anand Vihar, ISBT, Delhi, he was found in the possession of 200 forged currency notes in the denomination of Rs. 500/ each, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine.
3 Accused pleaded not guilty to said charges and claimed trial. 4 To prove its case, prosecution has examined eleven witnesses. They are HC Mahesh Kumar(PW1), Ct. Vivek Kumar(PW2), Ct. Pradeep Kumar(PW3), Mr. M.P Jain(PW4), Mohd. Tastarun Masauri(PW5), SI Surjeet (PW6), HC Ishwar Singh(PW7), HC Suresh (PW8), ASI Mobin Ahmed (PW9), HC Pradeep Kumar (PW10) and Inspector Mahavir Singh Sessions Case No. 111/11 Page 2/28 3 (PW11).
5 Statements of accused have been recorded U/S 313 Cr.P.C, wherein they have denied the allegations of prosecution. They have submitted that they have been falsely implicated in this case. They are innocent. The fake currency notes were not recovered from them. 6 In their statements U/S 313 Cr.P.C, accused have preferred to lead defence evidence, but none of the accused has examined any witness in his defence despite several opportunities. 7 I have heard arguments from ld. counsel for accused and ld. Addl. PP for State.
8 Ld. counsel for accused has prayed for acquittal of accused by submitting that no public witness has been joined by the I.O at the time of recovery of notes. There are contradictions in the testimonies of PWs. No memo was prepared by the I.O at the time of handing over the seal to HC Suresh. Secret informer was discharged before pointing out of the accused. No identification mark was put by the Investigation officer on the currency notes, allegedly recovered from the possession of accused. The site plan prepared by the Investigation Officer was not showing the position of the members of raiding party. Recovery of currency notes from accused is doubtful. Driver of vehicle Tavera was not examined. I.O did not join the police officials of P.S Roop Nagar and P.S. Anand Vihar. Sessions Case No. 111/11 Page 3/28 4 9 On the other hand, ld. Addl. PP has prayed for conviction of accused by submitting that prosecution has proved its case beyond reasonable doubt against both the accused, as all the PWs have supported the prosecution story.
10 In the present case, both the accused have been charged in respect of offence U/S 498C IPC.
11 In Laloo alias Laloo Ghai V. State, Crl. Appeal No. 17/05 decided on 04.03.10 by Hon'ble High Court of Delhi, it has been observed that In order to succeed in a charge under Section 489C of IPC, the prosecution is required to prove the following: 1 that the currency note or bank note in question was forged or counterfeit.
2 that the accused was in possession of it;
3 that he at the time of his possession knew, or had reason to believe, that it was forged or counterfeit;
4 that he intended to use it as genuine or that it might be used as genuine.
12 In Anis and Anr. V. State, 2010 11 AD(Delhi)364Crl. Appeal No. 1059/06 and Crl. Appeal No.20/2007 Hon'ble High Court of Delhi, has observed that if a person found in possession of counterfeit currency, instead of giving any explanation for such counterfeit currency possession, chooses to altogether deny the possession and such a defence is found to be false, the inevitable inference is that he had reasons to believe that the currency notes recovered from him were counterfeit currency and that precisely was the reason why he is denying the recovery from him. The knowledge and intention are state of mind which cannot be proved by direct evidence and have to be inferred from the attending circumstances. Sessions Case No. 111/11 Page 4/28 5 Possession of counterfeit currency, coupled with denial of possession and no attempt to explain as to how the appellants came into possession of such currency is sufficient to infer the requisite knowledge and intention on the part of the appellants. No doubt, the fundamental principles of criminal jurisprudence is that it is for the prosecution to prove all the ingredients of the offence alleged to have been committed by the accused, but, when the prosecution has proved all that it could have and the circumstances proved by it point unerringly towards the guilt of the accused, in that case if there exists a fact which is only in the knowledge of the accused and that fact is compatible with his innocence, it is for the accused to bring such a fact in the notice of the court."
13 It has been further held by Hon'ble High Court in Anis's case (Supra) that "there is no evidence of any of the appellants having sold any counterfeit currency note. There is no evidence to prove that they had bought the counterfeit currency notes, recovered from their possession. But, in the facts and circumstances of the case, it cannot be disputed that the appellant had received these counterfeit currency notes from someone, and that is how they came into possession of these notes. Normally, one would buy or receive currency notes from someone unless he prints them or finds them lying somewhere. This is not the case of any of the appellants that he had found these currency notes lying somewhere and had picked them up. It is not possible for the prosecution to prove in each case that the person, who is found in possession of counterfeit currency notes had bought or received them from any particular person. The fact as to how the appellants came into possession of these currency notes is a fact especially in the knowledge of the appellants and in view of Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If the person found in possession of currency notes does not tell the Court Sessions Case No. 111/11 Page 5/28 6 as to how it had come into their possession and chooses to altogether deny his possession of such currency notes, the Court would be justified in inferring that he had received notes from someone.
14 In the present case, out of 11 witnesses, PW9 ASI Mobin Ahmed is the star witness of the case, being the complainant. He has supported the prosecution story fully by deposing that on 13.1.09 he was present in the office of Operation Cell. At about 2.00 PM he received a secret information that one person would come in between 3.00/4.00 PM in a Maruti Zen Car No.DL 2CL0614 to Shakti Nagar Chowk to sell fake currency notes to some customer. It was further informed that the said person would deal with the customer, if he(customer) told/disclosed his name as Babloo. He conveyed this information to Inspector Operation Cell. He(Inspection Operation Cell)directed him to organize a raiding party and conduct the proceedings in the matter. A raiding party was organized consisting of himself(PW9), HC Mahesh Kumar, HC Suresh and HC Pradeep. They all left the office of operation cell at about 2.30 PM in private car and reached near NDPL office, Shakti Nagar Chowk, Delhi. The secret informer was freed by him in the operation cell itself. He asked 45 public persons to join the raiding party but they refused to join, showing their inability. HC Pradeep was made a decoy customer for dealing in fake currency notes with the abovesaid person. He (HC Sessions Case No. 111/11 Page 6/28 7 Pradeep) was deployed to take his position, opposite NDPL Office. He (HC Pradeep) was further directed to make the deal with that person by the name of Babloo. It was also directed that after finalization of deal, he would give a signal by putting right hand on his head. HC Pradeep took his position, opposite NDPL Office. At 3.20 PM within five minutes a red colour Maruti Zen No.DL2CL0614 came from the side of Shakti Nagar Chowk and stopped near NDPL office. One boy got down from the driving seat of the car and started looking here and there. Thereafter, HC Pradeep went to him and started talking to him. That boy took out something from his pocket and handed over the same to HC Pradeep. Thereafter, HC Pradeep gave a signal after putting his right hand on his head. He(PW9) alongwith other members of raiding party apprehended that boy. Upon inquiry, his name was revealed as Jahangir, son of Bhoora. HC Pradeep told him(PW9) that accused Jahangir had shown him fake currency notes of Rs.500/ denomination saying that he had Rs.30,000/ fake currency notes with him and would give the same in lieu of Rs.20,000/ real currency notes. Accused Jahangir handed over one fake currency note of Rs.500/ to HC Pradeep as a sample and its number was 6AC 879292. Accused Jahangir is present in the court. He (PW9)took search of accused Jahangir 60 fake currency notes of Rs.500/ denomination of each were recovered from the right side Sessions Case No. 111/11 Page 7/28 8 pocket of his pant. All the fake currency notes were checked and the same were found to be fake. HC Pradeep produced one fake currency note of Rs.500/, which was handed over to him, by accused Jahangir. He noted down the numbers of all fake currency notes and kept all the said 61 fake currency notes in an envelope and sealed the same with the seal of MA and seized vide memo Ex.PW1/E. Seal after use was handed over to HC Suresh. He prepared Rukka Ex.PW9/A and got the case registered through HC Mahesh. After registration of case, as per the instructions of senior police official, the investigation of this case was handed over to SI Mahavir Singh, who reached the spot. He handed over to said sealed envelope and Maruti Zen car to SI Mahavir Singh. Accused Jahangir was also produced before I.O SI Mahavir Singh. I.O prepared site plan Ex.PW1/F at his instance. Thereafter, he was made free from this case.
15 He(PW9)has further deposed that on 15.1.09 he again joined the investigation of this case with I.O SI Mahavir Singh, HC Suresh, HC Pradeep Kumar, Ct. Daljit, Ct. Vivek and HC Mahesh Kumar. Accused Jahangir was in police custody remand. At about 6.25 AM, they all reached ISBT Anand Vihar in a private car for the arrest of another accused. I.O briefed the entire staff. 4 to 5 passersby were asked to join the investigation but none of them agreed. HC Pradeep was made a Sessions Case No. 111/11 Page 8/28 9 decoy customer and he was instructed to have a deal with Ajam Ali for currency notes. It was also directed that after finalization of deal he (HC Pradeep)would give a signal after keeping his right hand on his head. HC Pradeep and accused Jahangir were made to stand on the 'In gate' of ISBT, Anand Vihar. At about 7.00 PM one person come from the inner side of bus terminal. Accused Jahangir raised his hand and called that person towards him. That person started talking with accused Jahangir and HC Pradeep. After some time, HC Pradeep gave a signal by putting his hand on his head. I.O with the help of the raiding party apprehended that person. Upon inquiry, his name was revealed as Ajam Ali, son of Buniyad Ali. Ajam Ali is present in court. HC Pradeep told them that accused Ajam Ali had made a deal with him for giving Rs.1 lakh fake currency notes in lieu of Rs.80,000/ genuine notes. Upon search of accused Ajam Ali, two bundles of currency notes were recovered from the right and left pockets of the jean, which he was wearing. Each bundle of currency notes was tied with a rubber band. All the currency notes were of Rs.500/ denomination each. On counting, each bundle was found to contain 100 notes. On checking he found that alphabets 'RBI" was not mentioned on the thread any of the currency notes. The colour of the said currency notes was, a little bit, lighter than the genuine currency notes . The picture of Gandhiji on the notes was located at a variance from the Sessions Case No. 111/11 Page 9/28 10 center. The said currency notes appeared to be fake. Accused Ajam Ali also admitted that the notes were fake. The numbers of said currency notes were noted down. All the said currency notes were kept in an envelope and sealed with the seal of MS. Same were seized vide memo ExPW1/A. The FSL form was filled up at the spot. The seal after use was handed over to HC Suresh. Accused Ajam Ali was arrested. His disclosure statement was recorded. IO prepared site plan Ex.PW2/DA. The case property was deposited in Mal Khana P.S Roop Nagar. He(PW9) has collectively identified the 60 currency notes recovered from the pocket of accused Jahangir and one currency note having No. 6AC 879292, which was given to HC Pradeep by accused Jahangir as Ex.P4. He has also identified the Maruti Zen Car as Ex.P5. He has identified the fake currency notes, recovered from accused Ajam Ali, as Ex.P1 and P2. The brown colour envelope, in which notes were sealed as Ex.P3.
Close scrutiny of examination of PW9 shows that he has given natural accounts of events.
16 In crossexamination by ld. Counsel for accused, PW9 has deposed that he had carried out the investigation, regarding the ownership of the maruti car and seized some transfer papers, which were in the name of Mohd. Tastaroon Masoor. He (PW9)has admitted that HC Pradeep did not offer or pay any money to accused Jahangir and Azam Sessions Case No. 111/11 Page 10/28 11 Ali. He did not seek the assistance of the officers or employees of NDPL. They did not approach the owners of the juice stalls, to join them in the raid. The juice stalls are not indicated in the site plan Ex.PW1/F. He did not sign the arrest memo of accused Jahangir. He has denied that the arrest memo Ex.PW1/B was not signed by him, since he was not present at the spot. The arrest memo of accused Ajam Ali, Ex.PW2/A, also does not bear his signature. He has denied that the said arrest memo is not signed by him since he was not present at the spot. His statement regarding making of enquiry in respect of ownership of the car was neither recorded by any officer or the I.O nor did he make any statement. He did not go to RTO to make the investigation regarding the maruti car. He has admitted that there was a police post outside the 'In gate' as well as 'Out gate' of ISBT Anand Vihar. No assistance was sought from both the police pickets of ISBT Anand Vihar. He does not remember, if any bus ticket was recovered from the personal search of accused Ajam Ali. There is no document to show that he was present at the time of apprehension of accused Azam Ali. He has denied that he was never a part of investigation from or before the arrest of accused Jahangir. He has further denied that he was neither present at the spot nor the member of the investigation team. He has denied that nothing was recovered from both the accused persons. He has denied that nothing was recovered from Sessions Case No. 111/11 Page 11/28 12 the accused persons and the money was planted upon them. He has denied that he is deliberately withholding the facts of the case as nothing was recovered from the accused persons at any point of time or place.
Close analysis of crossexamination of PW9 shows that veracity of this witness has not been impeached.
17 Further, The testimony of PW9 is corroborated with the testimony of PW10, HC Pradeep Kumar, who has been deputed as decoy witness. He has deposed that on 13.1.09 he alongwith HC Mahesh and HC Suresh was present in the office of Operation Cell. At 2.15 PM, ASI Mobin Ahmed informed them that he (ASI Mobin Ahmed)had received secret information that the supplier of fake currency note would come in his Maruti Zen No.DL 2CL 0614, near NDPL office, Shakti Nagar Chowk to deliver the fake currency note to one person. ASI Mobin Ahmed further disclosed that a deal with that person could be done by appearing before him as Bablu and a huge quantity of fake currency note could be recovered. ASI Mobin Ahmed constituted a raiding party comprising of him(PW10). HC Mahesh and HC Suresh. At about 2.30 PM they reached Shakti Nagar Chowk in a private vehicle. I.O requested 45 persons to join the raiding party but none obliged. I.O instructed him to act as decoy customer and to instruct a deal with that person by introducing himself as Bablu and after finalizing the deal he (PW10) Sessions Case No. 111/11 Page 12/28 13 would raise a signal by over heading his right hand. The remaining police party took their position by hiding themselves in the area. He took his position in front of NDPL office. At about 3.20 PM the above numbered Maruti Zen came from Ghanta Ghar side. Accused present in court namely, Jahangir came out from the car and stood there as he was waiting for someone to come. He(PW10)approached him and introduced himself as Bablu and asked him for a deal of currency note. He(accused Jahangir)handed over him one currency note of Rs.500 denomination and told that same was of a superior quality and nobody could judge that the same was fake one. He (accused Jahangir) also told him that he was having currency note of Rs. 30,000/ and he would hand over the same to him for Rs.20,000/. On that, he(PW10) raised the stipulated signal and ASI Mobin Ahmed, with the help of others, overpowered him. He(accused) disclosed his name as Jahangir. He(PW10)handed over the above mentioned currency note to ASI Mobin Ahmed. He(ASI Mobin Ahmed) conducted formal search of accused Jahangir. Sixty currency notes of Rs.500 denomination each, were recovered from right pocket of his pant. The said notes were checked by ASI Mobin Ahmed, which seemed to be fake. IO sealed the currency notes in an envelope with the seal of MA and seized vide memo Ex.PW1/C. Seal after use was handed over to HC Suresh. IO Sessions Case No. 111/11 Page 13/28 14 prepared Rukka and handed over the same to HC Mahesh for registration of FIR. After sometime, SI Mahavir Singh reached the spot,. Further investigation was marked to him. The accused and sealed envelope were handed over to SI Mahavir Singh, by ASI Mobin Ahmed. SI prepared site plan at the instance of ASI. HC Mahesh reached the spot and handed over original Tehrir and FIR to SI Mahavir Sinagh. The Maruti Zen Car was also seized vide memo Ex.PW1/E. The sale letters, delivery receipt etc in the name of Jahangir were also recovered from the dash board of the car and were also seized vide the same memo i.e Ex.PW1/E. Accused Jahangir was arrested vide memo Ex.PW5/B. His Jamatalashi was conducted vide memo Ex.PW1/C. The accused Jahangir made a disclosure statement Ex.PW1/G. SI Mahavir recorded the statements of witnesses. They went to PS Roop Nagar and deposited the case property in the Mal Khana.
18 He(PW10) has further deposed that on 15.1.09 he again joined the investigation of this case under the supervision of SI Mahavir, alongwith other staff. The accused Jahangir was in police custody. At about 6.25 AM they reached ISBT Anand Vihar. SI briefed the raiding party regarding the arrival of associate of accused Jahangir. 34 public persons were asked to join the raiding party but none obliged. SI instructed him(PW10) to act as decoy customer and accompany accused Sessions Case No. 111/11 Page 14/28 15 Jahangir as one Azam would come to meet Jahangir. It was further instructed to him that after finalizing the deal, he would raise the signal by raising his right hand towards his head. The other members of the raiding party took their positions near him by hiding themselves at the places. He and accused Jahangir stayed at the 'In gate' of ISBT Anand Vihar. At about 7 AM accused Azam, present in the court, came from inside the ISBT Anand Vihar. Accused Jahangir identified and called him. He(PW10) was introduced as customer to Azam. A deal was finalized that he(accused Azam) would deliver fake currency notes of Rs.1 lakhs for a consideration of Rs.80,000/. Azam told that he would make the delivery immediately then and there. He (PW10)made the signal. Police party came into action and overpowered accused Azam. On his formal search 2 wads of currency notes of Rs.500 each were recovered. Each wad was containing 100 currency notes of Rs.500. The currency notes seemed to be fakes/counterfeit. On interrogation accused Azam confirmed that the recovered notes were counterfeit. Both the wads were kept in an envelope and sealed with the seal of MS and seized vide memo Ex.PW1/A. Accused Azam was interrogated and arrested vide memo Ex.PW2/A. His Jamatalashi was conducted vide memo Ex.PW2/B. Accused made a disclosure statement Ex.PW2/G. IO recorded his statement and came back to PS Roop Nagar. Case property was Sessions Case No. 111/11 Page 15/28 16 deposited in the mal khana. PW10 has identified the Wads as Ex.P1, Ex.P2, envelope as Ex.P3 and maruti car as Ex.P5.
19 In crossexamination by ld. Counsel for accused PW10 has deposed that accused Jahangir was locked up at PS Roop Nagar. On 13.1.09 they left the office at 2.15 PM. Secret informer was not with them. They were in private vehicle i.e maruti of white colour. The distance between Shakti Nagar Chowk and their office is about 3 kms. IO had not noted down the name of the persons, who refused to join the raiding party. The police officials of PS Roop Nagar were not called. He had not offered his search to accused Jahangir before he was searched by ASI Mobin Ahmed. . The sixty one notes were sealed and seized at the spot i.e at Shakti Nagar Chowk. Seal after use was handed over to HC Suresh. No memo regarding handing over the seal was prepared. The specific marks were not put on the currency notes. He has volunteered that the numbers of the currency notes were noted down. The case property was not sent alongwith Rukka. The site plan was prepared in his presence. Disclosure statement of the accused was recorded in his presence. He has denied that thumb impression of accused was obtained on blank papers. Accused Azam was arrested on 15.1.09. On that day they were in a Tavera/qualis vehicle driven by private driver whose name he does not remember. No arrival entry was made at PS Anand Vihar. No information Sessions Case No. 111/11 Page 16/28 17 was sent to P.S Anand Vihar regarding their arrival. There is a police chowki inside Anand Vihar ISBT. No assistance was sought from them. No official was also called from PS Anand Vihar to witness the proceedings. Case property was seized at the gate of ISBT Anand Vihar and seal was handed over to HC Suresh. No memo regarding handing over of the seal was prepared. They did not offer their search before personal search of the accused. He has denied that he was not present at the spot. He has denied that no recovery was made in his presence. 20 The testimonies of PW9 & PW10 are further corroborated with the testimonies of PW1 HC Mahesh Kumar and PW8 HC Suresh. They have supported the prosecution case on material points. There is nothing in their crossexamination to the contrary. Their testimonies are not being reproduced to avoid repetition.
21 Further, the testimony of PW9 that accused Jhangir was apprehended with currency notes in a Maruti Zen car No. DL 2CL 0641 is corroborated with the testimony of PW5 Mohd. Tastarun Masauri. He (PW5) has deposed that he knows accused Jahangir, who belongs to his native village Narangpur, Distt. Amroha, U.P. About more than a year ago, accused Jahangir came to him as he wanted to purchase his Maruti Zen car. He(PW5)agreed and car was sold to him for Rs. 80,000/. At the time of delivery of the car, no receipt of delivery was Sessions Case No. 111/11 Page 17/28 18 executed as accused Jahangir was in hurry and he had to attend marriage of his brotherinlaw. Thereafter, he did not contact him for few days. He(PW5)kept on calling him. Sometime in January, 2009, the delivery receipt was executed. The delivery documents Ex.PW5/A1 to A4 bear his signatures at point A. 22 In crossexamination by ld. Counsel for accused, PW5 has deposed that the documents Ex.PW5/A1 to A4 were not witnessed by anyone. The documents were executed in the court premises at Nand Nagri. He has denied that accused neither signed Form No.29 or 30 and delivery receipt nor he(accused Jahangir) had purchased the vehicle from him. He has denied that above said car was planted upon accused at the instance of I.O. He has denied that accused person was not the registered owner of the car at the time of incident and he is deposing falsely.
23 The testimony of PW5 cannot be disbelieved only because that the documents Ex.PW5/A to A4 were not witnessed by any one or that PW5 did not send any intimation to the RTO regarding the sale of the vehicle. It is worth noting that PW5 has denied all the relevant suggestions, put to him, by Ld. Counsel for accused. He(PW5)has categorically deposed that at the time of incident accused Jahangir was the owner of the car, which was sold by him to accused Sessions Case No. 111/11 Page 18/28 19 Jahangir for a sum of Rs.80,000/.
24 It is further worth noting that at the time of seizure of the car in question, some documents, pertaining to the sale of car, in question, by PW5 to accused Jahangir, have been seized by the I.O vide seizure memo of car Ex.PW1/D. It is worth noting that PW10 HC Pradeep has categorically deposed that sale letter, delivery receipt in the name of accused Jahangir were recovered from the dash board of the car and the same were seized by the I.O.
25 Further, the currency notes recovered from the possession of accused Jahangir and Azam Ali were taken by PW7 HC Ishwar Singh to Currency Notes Press, Nasik on 3.3.09 and were deposited with the officer on 4.3.09. He has deposed that so long as the sealed parcels remained in his possession, the seals remained intact and contents were not tampered.
26 In crossexamination by ld. Counsel for accused PW7 has deposed that he went to Nasik by train. It took about 12 hours to reach there. He made departure as well as arrival entries in police station. Thus, PW7 has supported prosecution case both in examination inchief and crossexamination.
27 Further, the testimony of PW7 that he deposited two sealed parcels at Nasik is corroborated with the testimony of PW4 Sessions Case No. 111/11 Page 19/28 20 M.P. Jain. He has deposed that on 4.3.09 two sealed envelopes were received from PS Roop Nagar vide CNP Diary No.218/09. Both the parcels were opened in his presence. One envelope was having 61 notes in the denomination of Rs.500/ each and other envelope was having 200 notes in the denomination of Rs.500/ each. He examined the said notes scientifically and found that all the notes were not having other security features. The relevant design, ink shades were not matching. The number was not there on the said notes as per the genuine/original note. The intaglio printing for the text was absent. OVI effect for the figure "500" in the centre was absent. The RBI seal was lacking sharpness and fine details of Ashoka Pillar were missing. The said 261 notes of Rs.500/ each were found to be counterfeit notes due to the above mentioned reasons. After examining the said currency notes, the same were put in an envelope sealed with the seal of Currency Notes Press. He prepared his report on 17.9.09. Same was collected by the concerned police official Ishwar Singh on 20.3.09. His report is Ex.PW4/A. 28 An opportunity to crossexamine this witness has been granted to ld. Counsel for accused, but he did not avail of that opportunity. Thus, evidence of PW4 has gone unrebutted.
29 In the present case, the testimonies of PW9 & PW10 are trustworthy and reliable. Their testimonies do not suffer from any Sessions Case No. 111/11 Page 20/28 21 infirmities. Both witnesses have been crossexamined at length by Ld. Counsel for accused but nothing has come on record to the contrary. Both witnesses have denied all the suggestions, which were put to them by Ld. Counsel for accused.
30 Further, true and trust worthy testimonies of recovery witnesses cannot be disbelieved, if I.O of case did not join any public witness.
31 In the present case, I.Os of the case have categorically deposed that they asked the public persons to join the investigation but they did not come forward to join and left the spot. It is worth noting that it is the tendency of the public not to come forward and be a witness in a criminal case. Further, it is the quality of evidence and not the quantity of evidence, which is taken into consideration while appreciating the evidence in a case.
Section 134 of Indian evidence Act provides that "No particular number of witnesses shall in any case be required for the proof of any fact".
Hon'ble Supreme Court in Maqsoodan V. State of U.P AIR 1983 SC 126 observed that "it is not the number of witnesses examined nor the quantity of evidence adduced by prosecution, that counts. It is the quality that counts.
Sessions Case No. 111/11 Page 21/28 22
I am of the considered view that there is no infirmity in the prosecution case in this regard.
32 Further, the testimony of recovery witnesses cannot be disbelieved only because that there is contradiction in the testimonies of PWs as the same is not material one. In the present case, PW1 HC Mahesh Kumar and PW2 Ct. Vivek Kumar have deposed that the FSL Form was filled up at the spot. However, PW8 HC Suresh has deposed in crossexamination by d. counsel for accused that FSL form was filed in the office of Operation Cell by SI Mahavir Singh. I am of the considered view that the said contradiction in the testimony of PW8 is not major one and does not go to the root of the prosecution case as PW11 SI Mahavir Singh has categorically denied that he conducted all the proceedings while sitting in the P.S. 33 The testimonies of recovery witnesses namely, PW9 and PW10 and PW1 cannot be disbelieved only because that memos regarding the handing over the seal by the Investigation officer namely, ASI Mobin Khan and Inspector Mahavir Singh to HC Suresh were not prepared. It is worth noting that PW9 has categorically deposed that seal after use was handed over to HC Suresh. Similarly, PW10 has also deposed that IO sealed the 61 currency notes in an envelope with seal of MA and seal after used was handed over to HC Suresh. Further, PW11 Sessions Case No. 111/11 Page 22/28 23 Inspector Mahavir Singh, who is the subsequent I.O of the case and who seized the currency notes allegedly recovered from the possession of accused Azam Ali on 15.1.09, has also categorically deposed that the 200 fake/counterfeit notes were taken into possession vide memo Ex.PW1/A and seal after use was handed over to HC Suresh.
34 It is further worth noting that PW8 HC Suresh, who has supported the testimonies of PW9 and PW10 has categorically deposed that seal was handed over to him on 13.1.09 by Investigation Officer Mobin Ahmed. He has further deposed that on 15.1.09 I.O Inspector Mahavir Singh took into possession Rs.1 lakh vide memo Ex.PW1/A and seal after use was handed over to him.
35 In crossexamination by ld. Counsel for accused PW8 has deposed that on the next day he returned the seal to I.O. The evidence of PW8 goes unimpeached.
36 It is worth noting that ld. Counsel for accused did not put any suggestion to PW8 that no seal was handed over to him by the I.Os on 13.1.09 and 15.1.08.
37 Further, the true and reliable evidence of recovery witnesses cannot be brushed aside, if the secret informer was discharged, before pointing out of the accused.
38 It is worth noting that PW3 has categorically deposed that on Sessions Case No. 111/11 Page 23/28 24 13.1.09 he was posted as D.D writer at Operation Cell. On that day, at about 2.30 PM ASI Mobin Ahmed received a secret information regarding fake currency notes and DD No.14 was lodged by him. The copy of the DD No.14 is Ex.PW3/A. A perusal of DD No.14, dated 13.1.09, Ex.PW3/A shows that the secret informer had given the number of Maruti Zen Car DL 2CL 0614 to the I.O ASI Mobin Ahmed. It is further mentioned in that DD that the person in that Maruti Zen Car would come to sell the fake currency notes and deal would be finalised if the same is conducted in the name of Bablu. In these facts and circumstances, I am of the considered view that the raiding party, headed by ASI Mobin Ahmed was having sufficient knowledge about the identity of the person, who was to be apprehended. On the basis of secret information, it cannot be said that raiding party was not having the description of accused and he has been falsely implicated in this case.
39 Further, the testimonies of recovery witnesses cannot be disbelieved on the ground that no identification mark was put on the currency notes, which were recovered from the possession of accused persons. It is worth noting that in the recovery memo Ex.PW1/E prepared by PW9 ASI Mohin Ahmed and recovery memo of currency notes, Ex.PW1/A, prepared by PW11 Inspector Mahavir Singh, the numbers of currency notes allegedly recovered from accused Jahangir and Azam Ali Sessions Case No. 111/11 Page 24/28 25 respectively, have been mentioned. In these facts and circumstances of case, I am of the considered view that if I.O did not put any identification mark on the notes, the said fact will not adversely affect the case of prosecution.
40 Further, the true and trustworthy testimonies of PWs cannot be disbelieved on the ground that the site plan Ex.PW1/F prepared by the I.O was not showing the position of the members of raiding party. It is worth noting that all the recovery witnesses have categorically deposed that PW10, who was deputed as decoy customer and was instructed to conduct the deal with the accused took his position in front of NDPL office, Shakti Nagar and rest of the members took their position by hiding themselves in the area on 13.1.09. Further, PW10 has deposed that on 15.1.09 he was instructed by the IO to act as a decoy customer and accompany accused Jahangir as Azam Ali would come to meet Jahangir. It was further instructed that he(PW10) would introduced himself as customer for the deal of currency notes. He has further deposed that at 6.25 PM they reached ISBT Anand Vihar. He (PW10) and accused Jahangir stayed at the 'In gate' of ISBT Anand Vihar and other members of the raiding party took their positions near them by hiding at the places. In these facts and circumstances also, I am of the considered view that the prosecution case will not be materially affect, if the site plan Ex.PW1/F Sessions Case No. 111/11 Page 25/28 26 does not show the position of the members of raiding party. 41 Further, the testimonies of PWs cannot be set aside on the ground that driver of Tavera was not made a witness by the I.O or that police officials of Roop Nagar and ISBT Anand Vihar were not joined in the proceedings. I am of the considered view that the said alleged infirmity in the prosecution case is not infirmity as there was no legal requirement to join the driver of Tavera and the police official of Roop Nagar and Anand Vihar ISBT. I am of the considered view that true and trustworthy testimonies of recovery witnesses cannot be disbelieved only because that they are police officials and their testimonies cannot be believed until some independent witness was not examined by the prosecution. It may be noted that nonjoining of these persons may be a irregularity and not a illegality.
Hon'ble Supreme Court in State of Assam v. Muhim Barkataki AIR 1987 SC 98 observed that evidence of a police officer cannot be underestimated merely because he is a police officer. 42 It is worth noting that in the present case, accused has not examined any witness to show that accused has been lifted from their house. Further, they have not disclosed in their statements U/S 313 Cr.P.C as to how they came into possession of fake currency notes. They have simply stated that the currency notes were not recovered from their Sessions Case No. 111/11 Page 26/28 27 possession. Since, the fact as to how the accused persons came into possession of currency notes was a fact especially in the knowledge of accused and in view of Section 106 of the Indian Evidence Act, the burden of proving the fact is upon the accused persons, in view of the judgment of Hon'ble High Court in Ani's case referred above. Since, both accused have not furnished the explanation as to how they came into possession of currency notes in question, it is inferred that they had received these notes from someone.
43 In the present case, prosecution has successfully proved from the testimony of PW4 that the currency notes or bank notes in question were forged or counterfeit. Further, the recovery witnesses have proved that accused persons were in possession of fake currency notes. 44 Further, PW10 has further proved that accused Jahangir had agreed to give Rs.30,000/ for Rs.20,000/ only. He(PW10)has also deposed that accused Azam has agreed to give Rs.1 lac for Rs.80,000/ only. This lends support to the fact that accused had knowledge of currency notes being Fake.
Section 11 of Indian Evidence Act provides as below:
"Facts not otherwise relevant are relevant (1)if they are inconsistent with any fact in issue or relevant fact.
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(2)if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable."
45 Thus, the testimony of PW10, coupled with the possession of fake currency notes and denial of accused regarding possession of currency notes is sufficient to draw the inference that both accused were having the knowledge that the notes were counterfeit and there was an intention on the part of accused to use those fake currency notes as genuine. Thus, all the ingredients, as are discussed in Laloo's case, are found existing in the present case.
46 In view of above discussion, I am of the considered view that prosecution has successfully proved its case against the accused beyond reasonable doubt. Accordingly, both accused are convicted in respect of offence U/S 489C IPC.
Announced in the open court today
on 14.3.2012 (Smt. Bimla Kumari)
Additional Sessions JudgeII(North)
Tis Hazari Courts, Delhi.
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