Delhi District Court
Fir No. 27/12; State vs . Chote Lal & Anr. Page 1 Of 17 on 25 July, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 42/12
FIR No. 27/12
P.S. Maurya Enclave
U/S: 489B/489C IPC
STATE
Versus
(1) CHOTE LAL
s/o Sh. Sagan Lal
r/o jhuggi no. C1109,
jhuggi camp, Shakur Basti,
PS Punjabi Bagh, Delhi
(2) ANJISH
s/o Jhagdu
r/o Jhuggi n o. C370,
Jhuggi Camp Shakur Basti,
PS Punjabi Bagh, Delhi
Date of Institution: 29092012
Date of arguments: 25072013
Date of judgement: 25072013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 22012012 at about 8 pm, complainant Subhash Chand was selling FIR No. 27/12; State Vs. Chote Lal & Anr. Page 1 of 17 vegetables in Sunday Market, Pitampura, Delhi. One person came to complainant and purchased two kilograms onions and gave a currency note of Rs. 1000/ to him. After seeing the currency note carefully, complainant found it to be fake. Complainant called Ct. Surjeet, who was on patrolling, and showed him the currency note. Ct. Surjeet also found the currency note of Rs. 1000 as fake. Ct. Surjit took search of that person and two more currency notes in the denomination of Rs. 1000/ were recovered from the right side pocket of pant of that person. All the three currency notes were found to be fake and bearing Sl. no. 6CH682242; 6CH682248 and 6CH682250. On inquiry, the name of that person was revealed as Chote Lal. On 22012012, on the information of Ct. Surjit, DD no. 31A was recorded in PS Maurya Enclave. SI Pukhraj Singh along with Ct. Lalit reached at the spot i.e. Sunday Market, near Sub REgistrar Office, Outer Ring Road, Pitampura where they met Ct. Surjeet along with complainant Subhash Chand. They produced the accused Chote Lal along with three currency notes to SI Pukhraj Singh. Statement of complainant Subhash Chand was recorded and FIR u/s 489B/489C IPC was registered at PS Maurya Enclave. Accused Chote Lal was arrested and he gave disclosure statement. During interrogation, it was revealed that one Anjish was also FIR No. 27/12; State Vs. Chote Lal & Anr. Page 2 of 17 dealing in counterfeit currency notes. Accused Anjish was also arrested and two counterfeit currency notes bearing no. 6CH687247 and 6AH541090 were recovered from his possession. Case properties were deposited in CFSL, CBI, Lodhi Road, Delhi for expert opinion. After completion of investigation chargesheet was filed against both the accused u/s 489B/489C IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 489B/489C IPC was framed against accused Chote Lal and charge u/s 489C was framed against accused Anjish to which both accused pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined eight witnesses. PW1 Ct. Lalit Kumar proved the arrest memo and personal search memos Ex. PW1/A and Ex. PW1/B respectively; the envelope containing fake currency notes was seized vide seizure memo Ex. PW1/C and two fake currency notes in the denomination of Rs. 1000/ vide seizure memo Ex.PW1/D. Accused Anjish made a disclosure statement. PW1 identified the three currency note of Rs. 1,000/ denomination bearing no. 6CH682242, 6CH682248 and 6CH682250 vide Ex. PW1/P1 (colly) which were recovered from accused Chote Lal; two currency note of Rs. 1000/ FIR No. 27/12; State Vs. Chote Lal & Anr. Page 3 of 17 denomination bearing no. 6CH687247 and 6AH541090 as Ex. PW1/P2 which were recovered from accused Anjish. PW2 HC Madan Lal, posted as MHCM at PS Maurya Enclave proved entry no. 556 and 557 of register no. 19 vide Ex. PW2/A; RC no. 44/21/12 vide Ex. PW2/B and copy of receipt as Ex. PW2/C. PW3 Subhash Chand proved his statement vide Ex. PW3/A. PW3 identified the accused Anjish as the person who had purchased the onion and handed over him fake currency note. PW3 identified three currency notes of Rs. 1,000/ as Ex. PW1/P1 and currency note bearing no. 6CH682250 as the currency note which was handed over to him by the accused. PW4 HC Manoj Kumar, Duty Officer, proved the endorsement on the rukka vide Ex. PW4/A and copy of FIR as Ex.PW4/B.
4. PW5 Ct. Surjit proved three fake currency notes in denomination of Rs. 1,000/ in a pullanda with the seal of PS vide seizure memo Ex. PW1/C; arrest memo of accused Anjish vide Ex.PW5/A and his personal search memo Ex. PW5/B; three fake currency notes recovered from the balli affixed on the ceiling of the jhuggi vide seizure memo Ex.PW5/C. PW5 identified the three fake currency notes in the denomination of Rs. 1000/ each bearing Nos. 6CH 682250, 6CH 682242 and 6CH 682248 as Ex. PW1/P1 out of FIR No. 27/12; State Vs. Chote Lal & Anr. Page 4 of 17 these currency notes, one note was handed over to PW5 by complainant Subhash Chand and two were recovered from the possession of accused Chote Lal; two currency fake currency notes in the denomination of Rs. 1000/ each bearing Nos. 6AH 54J090 and 6CH 687247 Ex. PW1/P2 which were got recovered by the accused Anjish from his jhuggi. PW6 Ct. Ravindra Kumar stated that on 15.05.12, he obtained two pullandas along with forwarding letter vide RC No. 44/21/12 from MHC(M) PS Maurya Enclave and deposited the same at CFSL/CBI/Lodhi Road, New Delhi. PW7 SI Pushpender proved the FSL result Ex. PW7/B and his application Ex. PW7/A. PW8 SI Pukhraj proved DD no. 31A Ex. PW8/B; statement/complaint of complainant Subhash Chand recorded by him as Ex.PW3/A; tehrir Ex. PW8/A; site plan Ex. PW8/C prepared by him at the instance of complainant; disclosure statement of accused Chote Lal and Anjish as Ex. PW8/D and Ex. PW8/E respectively. PW8 also proved the certificate u/s 65B Indian Evidence Act as Ex. PW8/F. PW8 further identified the three currency notes of 1000 denomination bearing serial No. 6CH682242, 6CH682248 and 6CH682250 as Ex. PW1/P1 which were handed over to him by Ct. Surjit; two currency notes of Rs. 1000/ denomination bearing serial Nos. 6CH687247 and FIR No. 27/12; State Vs. Chote Lal & Anr. Page 5 of 17 6AH541090 Ex. PW1/P2 which were recovered from the jhuggi of accused Anjish.
5. Statements of accused were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Both accused opted not to lead defence evidence.
6. I have heard Ld. Defence counsel and Ld. APP for State and have perused the entire records.
7. Ld. Defence counsel for accused argued that accused Chote Lal never handed over the fake currency note to the complainant. Nothing was recovered from the accused. Even, recovery was not made in the presence of the complainant. There is no independent witness to the recovery and disclosure statements. The recovery is planted one. The complainant did not identify the accused. Later on, the complainant identified the accused at the instance of the IO. The raid was conducted by the police at night which is in contravention of Section 100 Cr.P.C. Ct. Lalit did not know to whom the seal was given after its use. The seized item was deposited on 22012012 and arrest of the accused has been made on 23012012. There are contradictions in the testimonies of PWs. In support of their arguments, Ld. defence counsel relied upon the judgements reported in the case of FIR No. 27/12; State Vs. Chote Lal & Anr. Page 6 of 17 Rabindranath Prusty Vs. State of Orissa 1984 CRI.L.J 1392; Madan Lal Sharma Vs. The State 1990 Cri.L.J 1989; Shamshad Ali Vs. State 1998 (1) CC Cases 492 (HC); Umashanker Vs. State of Chattisgarh AIR 2001 SC 3074; Mohd. Yasin Vs. State of UP 1997 CRI.L.J. 3188; Veera Swamy Shanmugam Sundaram Vs. The State of AP 2001 CRI.L.J. 3787; M. Mammutti Vs. State of Karnataka AIR 1979 SC 1705; Abdul Majeed Abdul Rehman Sarkhot Vs. State of Maharashtra 2002 CRI.L.J. 720.
8. Ld. APP for State argued that when the accused Chote Lal purchased 2 kgs onion, he gave fake currency note of Rs. 1000 to the complainant. Thereafter, on search, two more fake currency notes of Rs. 1,000/ each were also recovered from him. The accused Chote Lal gave his disclosure statement and during investigation, it revealed that coaccused Anjish was also dealing in counterfeit currency notes. Two counterfeit currency notes were also recovered from coaccused Anjish. Initially, the complainant did not identify accused Chote Lal but during his crossexamination, he identified the accused Chote Lal as the same person who gave him the fake currency note of Rs. 1,000/. Subhash Chand has supported the case of the prosecution and corroborated the version of other PWs. Generally, public persons do not join the investigation FIR No. 27/12; State Vs. Chote Lal & Anr. Page 7 of 17 in criminal cases. There are minor contradictions in the testimonies of PWs which do not go to the root of the case.
9. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as alleged or whether they have been falsely implicated. PW3/ complainant stated in his examination in chief that one person along with one lady came to him and purchased 2 kgs onions from him and handed over him one currency note of Rs. 1,000/. On careful perusal of the note, it appeared to him a fake currency note. PW3 called one police official who was standing near him in the market. Whereas, PW3 in his crossexamination stated that police official/ PW5 was present near the chowk. PW3 also stated in his examination in chief that police official/ PW5 also confirmed the currency note given by the customer as fake. PW3 further stated that person was apprehended from the next shop but the exchange which he had returned to him i.e. Rs. 960/ was not recovered from him. Two fake currency notes were also recovered from him. PW3 proved his statement Ex. PW3/A recorded by the IO. PW3 identified the currency note bearing no. 6CH682250 which was handed over to him by the accused.
FIR No. 27/12; State Vs. Chote Lal & Anr. Page 8 of 17
10. Ct. Surjit examined as PW5 stated in his examination in chief that one vegetable vendor Subhash Chand/ PW3 came to him with one person whose name revealed during interrogation as Chote Lal and Subhash Chand handed over accused Chote Lal and one currency note of Rs. 1,000/ to him. Meaning thereby, there are the contradictions in the aforesaid statements of PW3 and PW5 since PW3 stated that he called PW5 who was standing near PW3 in the market and accused Chote Lal was arrested from the next shop. Whereas, PW5 stated that PW3 came to him along with accused Chote Lal. PW3 stated to PW5 that accused Chote Lal came to him along with one lady but there is also no investigation about the lady told by PW3. PW3 returned to accused Chote Lal Rs. 960/ as exchange but there is no recovery of Rs. 960/ despite the fact that the accused Chote Lal was apprehended at the shop. PW3 also did not identify the accused Chote Lal during his examination in chief and when the Ld. APP for State crossexamined him, PW3 identified the accused Chote Lal. The incident occurred on 22012012. Therefore, witness/ PW3 cannot say that he could not identify the accused Chote Lal as the incident occurred many years ago.
11. PW3 admitted in his crossexamination that personal search of accused Chote Lal was not conducted in his presence. FIR No. 27/12; State Vs. Chote Lal & Anr. Page 9 of 17 PW5 also admitted in his crossexamination that he did not offer his personal search to the accused before taking his search at the spot. In Rabindranath Prusty Vs. State of Orissa 1984 CRI.L.J 1392, it was held that one of the formalities that has to be observed in searching a person is that the searching officer and others assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting the object which was brought out by the search.
12. It is also an admitted fact that the accused Chote Lal was apprehended in the weekly market and PW5 also admitted that there was a huge crowd in Sunday Market but PW5 neither noted down the names and addresses nor issued notice to those public persons who refused to join the investigation. Further, PW5 also did not remember even if IO had asked anyone to join the proceedings at the house of accused Anjish. Even PW5 also did not remember if IO had given any notice to any person for joining of the investigation or raid to the house of accused Anjish. PW8 also admitted in his crossexamination that due to Sunday Market, there was a huge crowd at the spot. PW8 further admitted that he did not serve any notice to those persons who refused to join the investigation. In this FIR No. 27/12; State Vs. Chote Lal & Anr. Page 10 of 17 context, I would place a reliance upon the judgement reported in the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.
13. In the present case, even at the time of his cross examination, PW5 did not remember the colour of the pant and shirt which the accused Chote Lal was wearing at the time of incident. During crossexamination, PW1 stated that IO recorded his statement in the PS but he did not remember the date. PW1 further did not recall about other persons whose statement was recorded by the IO in the PS. The IO had prepared the site plan without scale and PW1 did not know as to who had signed the same. PW5 in his crossexamination after going through the judicial file also stated that there is no site plan in the judicial file. PW8 also stated in his FIR No. 27/12; State Vs. Chote Lal & Anr. Page 11 of 17 crossexamination that he did not obtain the signature of the complainant on the site plan as the same was not required. PW1 also did not recall the time when he returned back the seal to the IO, however, he stated that it was returned on the next day. PW1 admitted that IO had used the same seal in sealing the currency notes recovered from the accused Anjish. During cross examination, PW1 also did not recall to whom the seal was handed over after its use at the time of recovery from accused Anjish. PW1 admitted that no written memo was prepared regarding handing over of the seal.
14. PW1 stated in his crossexamination that they had gone to the house of accused Anjish in Govt. vehicle but PW5 in his crossexamination stated that they went to the house of accused Anjish in a private vehicle. PW8, in his crossexamination, stated that they reached at the jhuggi of accused Anjish in a private vehicle but PW8 did not recall the registration number and the name of the owner of the said vehicle. PW1 stated in his crossexamination that the accused Anjish had taken out the fake currency note Ex. PW1/P2 from underneath the bamboo (balli). Whereas, PW5 in his crossexamination, did not state that from which direction from the entrance of the gate, the currency notes were recovered from the FIR No. 27/12; State Vs. Chote Lal & Anr. Page 12 of 17 house of the accused Anjish. PW1 also stated in his cross examination that he cannot tell the direction of the door of the jhuggi. PW1 also did not recall the documents which were prepared in the PS.
15. PW5 stated in his crossexamination that he did not remember the time when they had left the spot for PS and even PW5 also did not remember when Constable Lalit went to the PS along with the rukka and even PW5 did not remember as to when Ct. Lalit returned back to the spot from the PS along with rukka and copy of the FIR. Even PW5 did not recall which documents were prepared by the IO during the period Ct. Lalit went and returned back from the PS. Further, PW5 also did not recall at which time Ct. Lalit returned the seal of the case to the IO after sealing of the fake currency notes recovered from the accused Chote Lal. PW5 also admitted in his crossexamination that no special mark was made on any currency note recovered from the accused persons. PW5 also did not remember the time when the disclosure statement of the accused Chote Lal was recorded. PW8 in his crossexamination stated that the disclosure statements of the accused Chote Lal & Anjish were recorded at the PS. Even, he did not obtain signatures of any other witness on the disclosure statement of accused Anjish. FIR No. 27/12; State Vs. Chote Lal & Anr. Page 13 of 17 PW5 did not recall as to who were present at the jhuggi of the accused Anjish. PW8 stated in his crossexamination that no seal handing over and returning over memo was prepared. Even, PW8 did not recall when he deposited the currency notes recovered from the accused Chote Lal in Malkhana.
16. PW1 also did not tell the time of arrest of accused Anjish, however, he stated that it was night time. PW1 stated that some lady who was perhaps from inlaws side was present in his house at that time. However, there is no signature of that lady on the arrest memo of accused Anjish and even there is no statement recorded of that lady. PW1 also stated in his crossexamination that local persons were not called at the time of recovery and even no other persons were examined on the spot in his presence. PW3 stated in his crossexamination that in his presence, the police official whom he called i.e. PW5 had not taken the search of the accused as by that time, he had gone to his own shop. PW5 did not recall the time of arrest of accused Anjish. In my considered opinion, statutory desirability in the matters of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure FIR No. 27/12; State Vs. Chote Lal & Anr. Page 14 of 17 proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers.
17. PW5 did not tell whether he made arrival entry at the PS. PW8 stated in his crossexamination that he did not remember if he made any arrival entry after reaching at the PS. PW5 also did not remember departure entry regarding his duty to Sunday Market. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that:
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
18. The prosecution has failed to prove that the accused intended to use the forged or counterfeit currency notes as genuine. In Madan Lal Sharma Vs. The State 1990 Crl.L.J. 215, it was held by the Hon'ble Kolkatta High Court that under section 489B IPC, the burden is on the prosecution to prove that at the (SIC) when the accused was passing the note he knew that it was a forged one. The mere possession of it by him does not shift the burden to the accused to prove his innocent possession of the forged note. FIR No. 27/12; State Vs. Chote Lal & Anr. Page 15 of 17 Similarly, u/s 489C, it is to be proved that the accused intended to use the forged or counterfeit currency note as genuine or it might be used as genuine. It is for the prosecution to prove the circumstances which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously the note on the public. Thus, knowledge or reason to believe that the note was forged has to be proved to fix the liability u/s 489B and 489C. Further, the prosecution has further failed to prove that the accused had requisite mens rea. In Uma Shankar Vs. State of Chhattisgarh AIR 2001 SC 3074, it was held by the Hon'ble Supreme Court that buying or receiving from another person or otherwise trafficking in or using as genuine or also possessing or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case u/s 489C IPC in the absence of mens rea. The Hon'ble Supreme Court further held that merely on the basis of evidence of shopkeeper and other witnesses that they were able to make out that currency note alleged to have been given to shopkeeper was fake, mens rea cannot be presumed.
19. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has failed to prove its case against accused persons beyond reasonable doubt, the benefit of FIR No. 27/12; State Vs. Chote Lal & Anr. Page 16 of 17 which goes to the accused. Accordingly, both the accused are acquitted. Their bail bonds are cancelled and sureties are discharged. Documents of sureties, if any, be released against proper acknowledgement. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 25072013 FIR No. 27/12; State Vs. Chote Lal & Anr. Page 17 of 17