Delhi District Court
State vs Vishal Singh on 13 May, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
Date of filing of charge sheet : 29.07.2011
Date of framing of charge : 06.08.2011
Date of final arguments : 02.05.2013
Date of judgment : 13.05.2013
SC No. 09/11
FIR NO. 78/2011
PS : Connaught Place
U/s 489B /489C
STATE
Vs.
VISHAL SINGH
S/O SH. SHAILENDER SINGH
R/O B127, GAGAN ENCLAVE,
GHAZIABAD, UP.
APPEARANCES
Present : Mr. Salim Khan, Ld. Addl. PP for the State
Mr. Rakesh Malhotra, Ld. Counsel for the accused
13. 05. 2013
JUDGMENT
1. Accused Vishal Singh S/o Sh. Shalender Singh has been arraigned for trial by the State on the allegation that on 02.05.2011 at about 2:30p.m he came to the office of complainant Ravi Mahajan at K5 Palika Parking, Connaught Place, New Delhi with the knowledge State v. Vishal Singh 1/19 2 that he was exchanging five counterfeit US currency notes in the denomination of 100 dollar and at the same time was further found in possession of 95 US currency notes of each in the denomination of 100 dollars for the purposes of trafficking in such fake currency notes and thereby committed an offence u/s 489 B and 489C of IPC.
2. Needless to state that accused pleaded not guilty and claimed trial.
FACTS
3. The case of the State in the charge sheet is that on telephonic information given by HC Tara Chand no. 102 ND (PW3 ) on 02.05.2011 at about 2.30 pm , SI K. K. Mishra (PW9) , SI Yaurav (PW8 ) reached the Palika Parking at the office of Shakti Forex Pvt. Ltd where they met HC Tara Chand and complainant Ravi Mahajan (PW1) who produced before them accused Vishal Singh S/o Shelender Singh along with five currency notes in the denomination of 100 US dollars each which were suspected to be counterfeit and had been brought by accused Vishal Singh for exchange; that on checking of a bag in the possession of accused Vishal Singh 95 currency notes each in the denomination of 100 US dollar were found and the said currency notes were got checked from the branch of HDFC bank NBlock where the officials of the bank verified that the currency notes were counterfeit.
State v. Vishal Singh 2/19 3
4. It is the case of the prosecution that on such verification, the statement of Ravi Mahajan (PW1) was recorded to the effect that "He is running forex business in the name and style of M/s Shakti Forex Ltd as a money exchanger, authorized by the RBI; that on 02.05.2011 at about 2:30p.m one boy whose name was later on revealed as Vishal Singh S/o Sh. Shalender Singh aged about 23 years came to his office and delivered him five currency notes each in the denomination of 100 US dollars for the purposes of exchange and with his 17 years of experience, he immediately found out that the currency notes were counterfeit and that he told Vishal Singh that the currency notes given by him were not genuine on which he became fearful and tried to run away but with the help of his staff / employees Himanshu and Ashish he was able to apprehend the accused Vishal Singh who sustained some minor injuries during the scuffle, that he called the Beat Officer and on that HC Tara Chand came at the spot and he handed over five counterfeit US currency notes to him and during the personal search of accused Vishal 95 more US currency notes in the denomination of 100 dollar each were recovered".
5. On receiving the said complaint, rukka Ex. PW 9/A was written which was received by the Duty Officer vide endorsement Ex. PW 4/B consequent to which present FIR Ex. PW 4/A was recorded. Needless to state that during the investigation, the so called State v. Vishal Singh 3/19 4 counterfeit currency notes were seized and after writing serial no. 1 to 100 with the held of a pencil, the currency notes were sealed in a pullanda with the seal of 'KKM' vide memo Ex. PW 1/C. During the investigation accused was interrogated who made disclosure statement Ex. PW 1/B and he was arrested vide memo Ex. PW 1/E and personal search memo Ex. PW 1/F.
6. During further investigation it was revealed that accused had done Maritime study in Singapore and in October 2008 he had joined services as Maritime Officer Class IV with salary of 2225 of US dollar and he disclosed that 10,000 US dollars had been exchanged by him with someone in London; that during the investigation the fake currency notes were sent for expert opinion to US Secret Services through US Embassy and as per the expert report, the currency notes seized from the accused were opined to be counterfeit and on completion of the investigation, the present charge sheet was filed.
PROSECUTION EVIDENCE
7. The prosecution in order to prove its case examined as many as 09 witnesses: PW1 Mr. Ravi Mahajan, PW2 his employee Mr. Himanshu and PW3 was HC Tara Chand who were the main witnesses for the prosecution and I shall dwell on their evidence later on in this judgment.
State v. Vishal Singh 4/19 5
8. PW4 was ASI Virender Kumar who was posted as Duty Officer at PS Connaught Place on 02.05.2011 who produced the original FIR register and deposed that he received the rukka from SI K. K. Mishra on which he made endorsement Ex. PW 4/B and registered FIR Ex. PW 4/A;
9. PW5 was HC Inderpal Singh who was Malkhana Incharge at PS Connaught Place who deposed about the deposit of case property on 02.05.2011 along with the items recovered from accused Vishal Singh on his personal search that was deposited by SI K. K. Mishra. He further deposed that on 06.05.2011 a sealed packet containing foreign currency was collected by SI Yaurav taken to the US Embassy vide RC no. 28/21 which is Ex. PW 5/B. He further deposed that on 20.05.2011 a sealed raxin bag was received from Ms Anne M. Brunn Assistant Regional Security Officer from Embassy of US Ex. PW 5/A on 09.06.2011 with report in regard to fake currency was handed over by him to SI K. K. Mishra vide entry at point R on Ex. PW 5/A.
10. PW6 was Ms Anne M. Brunn Assistant Regional Security Officer from Embassy of US at Chanakya Puri, New Delhi. She deposed that a sealed packet containing 100 currency notes each in the denomination of Rs.100 US dollar had been received from SI K. K. Mishra. She deposed that vide cover letter Ex. PW 6/A, she delivered the report of the secret service Ex. PW 6/B along with State v. Vishal Singh 5/19 6 annexure on Vienna Convention Ex. PW 6/C to SI K. K. Mishra.
11. PW7 was Captain Ashwani Kumar Malhotra, Regional Manager from Maersk Line India Pvt. Ltd who produced the information concerning the employment of accused Vishal Singh with their company which documents are Ex. PW 7/A along with documents / annexures which are Ex. PW 7/1 to Ex. PW 7/3.
12. PW 8 was SI Yaurav who was associated during the investigation of this case and lastly it was the Investigating Officer SI K. K. Mishre who was examined as PW9.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE
13. On the close of the prosecution evidence, the accused was examined as per Section 313 of Cr. P.C. On putting the incriminating evidence appearing against him on the record, although accused admitted that he had given five US currency notes in the denomination of 100 dollar for exchange in Indian rupees but he denied that the same were counterfeit and he denied that he tried to run away from the shop and stated that it was Ravi Mahajan who started beating him as a result of which he received injuries.
14. As regards, seizure of 95 US currency each in the denomination of 100 US dollars, the accused stated that his bag Ex. P1 had already been snatched from him by Ravi Mahajan who had some secret talks with HC Tara Chand (PW3) and they replaced the State v. Vishal Singh 6/19 7 genuine currency notes with counterfeit notes in order to falsely implicate him in this case.
15. Suffice to state that in his statement u/s 313 as well as in his testimony DW4 gave history of his family and educational qualification, stating interalia that he had been engaged with Maersk in various capacities since 2005 starting as a Cadet and last being Maritime Officer III; that he had been in US once in 2005 and his salary used to be credited in his bank account and he has no prior experience in handling US currency notes; that his last drawn salary was gross USD 2923 but with benefit of leave encashment it had gone up to USD 8602 in November 2010. He stated that on his journey back home, his Ship stayed in London for a week; that he wanted to buy an Apple Macintosh Computer and equipments in UK for which he had accumulated some cash in smaller denomination and he was not having the facility of a credit card and wanted to convert smaller denomination into large one so that it could be convenient to carry ; and that he had approached one money exchange shop in Central London, called Aldwich, where he converted the smaller denomination into larger denomination and landed at Delhi on 28.04.2011; and that finally he stated that he has been falsely implicated by the complainant in connivance with the police officials. In his defence was examined DW1 Dr. Dr. Rajnish State v. Vishal Singh 7/19 8 Kaushik, Medical Officer from RML hospital who had medically examined the accused on 03.05.2011 and proved his MLC Ex. PW 9/D5.
16. DW2 was Dr. Malvika Gupta who examined the accused Vishal Singh on 04.05.2011 and proved the MLC Ex. PW 9/D4.
17. DW3 was HC Dharmender who produced Rojnamcha register A&B pertaining to 21.04.2011 to 11.05.2011 and Rojnamcha A and B 29.04.2011 to 10.05.2011. He testified that on 03.05.2011 accused was taken from the police lock up vide entry 63 to Ghaziabad but there was no entry of his return on that day.
18. Another witness Mr. Deepak Verma, Assistant Manager from State Bank of India Model Town Ghaziadad was examined as DW3 and he produced the computer generated NRI account no. 30455522108 in the name of Vishal w.e.f 01.07.2010 to 02.05.2011 DW3/B and he testified that maximum amount that could be withdrawn in a single day from ATM was 1000 US dollars. At the cost of repetition, the accused examined himself as DW4. ARGUMENTS
19. Mr. Rakesh Malhotra, Ld. Counsel for the applicant / accused urged that the prosecution in this case has miserably failed to prove that recovery of counterfeit currency had been effected from the accused and that assuming for the sake of convenience that such State v. Vishal Singh 8/19 9 recovery is admitted from him, there is no iota of evidence that accused had knowledge that the US currency notes were counterfeit. Ld. Counsel vehemently urged that no evidence is led by the prosecution to show that the case currency was counterfeit and no expert has been examined in this regard. In his submissions he relied on decisions in Veera Swamy Shanmugam Sundaram v. State of AP 2001 Cr. L. J. 3787 AP; M. Mammutti v. State of Karnataka AIR 1979 SC 1705; State of H. P. v. Jai Lal & Ors. AIR 1999 SC 3118 (1); Malay Kr. Ganguly v. Dr. Sukumar Mukherjee & Ors & Dr. Kunal Saha v. Dr. Sukumar Mukherjee & Ors. 2009 (9) SCC 221. Per contra Ld. APP urged to the contrary.
20. I have heard Mr. Salim Khan, Ld. Addl. PP for the State and I have also heard Sh. Rakesh Malhotra, Ld. Counsel for the accused. I have also gone through the oral and documentary evidence on the record.
PROPOSITION OF LAW
21. Section 489B and 489C of I.P.C provides as under.
Section 489B Using as genuine, forged or counterfeit currency notes or bank notes Whoever sells to, or buys or receives from, any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. State v. Vishal Singh 9/19 10 489C. Possession of forged or counterfeit currency notes or bank notes Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.
22. The expression 'counterfeit' is defined in Section 28, IPC. The same reads as follows :
"28Counterfeit : A person is said to 'counterfeit' who causes one thing to resemble another thing, intended by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced.
Explanation 1 : It is not essential to counterfeiting that the imitation should be exact.
Explanation 2 : When a person causes one thing to resemble another thing, and the resemblance is that a person might be deceived thereby, it shall be presumed until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced."
23. Sections 489A to 489E deal with various economic offences in respect of forged or counterfeit currency notes or bank notes. The object of legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and bank notes. It was observed by the Supreme Court in State of Kerala v. Mathai Verghese and Ors. (AIR 1987 SC 33) that the expression 'currency notes' is large and wide State v. Vishal Singh 10/19 11 enough in its amplitude to cover the currency notes of any country. Section 489C is not restricted to Indian currency note alone but it includes dollar also and it applies to American dollar bills.
24. A bare look at the above said provision u/s 489B and 489C of IPC would show that the essential ingredients of the offence is "knowledge or having reasons to not only believe" that the currency note is forged but also "the intention to use the same as genuine or that it may be used as genuine". In other words, to establish a guilt or otherwise in both these terms, the prosecution has to necessarily establish the knowledge and the intention on the part of the accused in order to connect with the offence u/s 489B and 489C of the IPC.
25. It is pertinent to mention here that the expression "reasons to believe" has been defined u/s 26 of IPC that lays down that "a person is said to have reasons to believe a thing if he has a sufficient cause to believe that thing and not otherwise". A person can be supposed to know where there is a direct appeal to his senses and in this regard suspicion or doubt cannot be raised to the level of 'reason to believe'.
26. The said provisions came up for interpretation before their lordships of the Apex Court in the case of M. Mammuti Vs. State of Karnataka AIR 1979 SC 1705 wherein it was observed that "once the appellant is found in possession of counterfeit notes, he must be State v. Vishal Singh 11/19 12 presumed to know that the notes are counterfeit if the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit."
DECISION
27. With the said proposition of law at the back of our mind, coming to the instant case, testimony of PW1 Ravi Mahajan that accused approached him for foreign exchange conversion and delivered to him five US currency notes each in the denomination of 100 dollars is fully corroborated by PW2 and cannot be disbelieved. The testimony of PW1 Ravi Mahajan as corroborated by PW3 HC Tara Chand that on checking of bag of the accused Ex. P1, 95 more US currency notes each in the denomination of 100 dollars were seized cannot be disbelieved either.
28. Although, it does appear that there was some altercation and scuffle between PW1 involving PW2 Himanshu and another boy Ashish with the accused, it is a long shot by the defence that the genuine currency notes were replaced with counterfeit currency notes due to collusion between PW1 Ravi Mahajan and PW3 HC Tara Chand. Further, although PW1 and PW2 were interested witnesses, their testimony does have a ring of truth around it and inspires confidence.
State v. Vishal Singh 12/19 13
29. Having said that the prosecution case is on slippery grounds in as much as the investigation in this case left much to be desired throwing all norms of fairness to the wind. PW1 admitted the fact that whenever any incident of fake currency is presented for exchange and detected by them the matter was required to be reported to RBI through Money Laundering Reporting Officer. Well, that was not done in this case. Any how I don't see much of a crack in the prosecution case as to why PW1 called PW3 a beat constable and not the PCR. It is a common fact that wherever there is a market place, the shop keepers for various law and security purposes are comfortable to report the matter directly to the Beat Constable but evidence of PW3 and PW8 SI K. K. Mishra lead much to be desired when it is seen that the entire proceedings were done at the Police Station.
30. Further, although the incident occurred at about 2.30 pm there was a considerable delay in registering the present FIR at 16.25 hrs. During the interregnum, testimony of PW1 and PW3 reveal that both had gone to branch of HDFC bank located at Nblock, Connaught Place, New Delhi to ascertain whether the currency notes were genuine or not. In this regard care was not taken to retain the five US currency notes separately that were initially given by the accused to PW1 and it appears that all the currency notes that State v. Vishal Singh 13/19 14 is 5 plus 95 that were later recovered were mixed and only one consolidated seizure memo was prepared Ex. PW1/B.
31. Now, none of the official of the HDFC bank who examined the currency notes were examined during investigation nor they have been produced by the prosecution during the trial. What remains in the realm of doubt is as to on what basis the officials came to the conclusion that the currency notes were not genuine and were rather counterfeit. It may be indicated that PW1 testified that he started the business in Foreign Exchange / Money Exchanger sometimes in 1990 and in his testimony he elaborated five features that aroused his suspicion that currency notes in question were not genuine which are as follows.
(i). First feature is the "The United Stated of America" appearing on this dollar is in embossed condition and in the dollar in question it appeared so.
(ii). Digit 100 on this dollar towards right side below the above embossed the "United States of America", this digit 100 will turn green and dar black with the currency note tinted towards left and right in light. In the dollar subject matter of this case the digit 100 was not turning dark black but only turning black and that was by my experience to suspected.
(iii). The series appearing on this dollar in question showed it a currency released in 1999 but then in the year 2011 the currency note dollar in question would have gone rough where as the dollar in question appear to be a fresh.
(iv). The genuine US dollar would give out a kind of roughness in touch but the dollar in question did not reflect that roughness as I touched and examined it.
(v). The water mark when seen in light in the dollar in question appeared hazy where as in a genuine dollar it appears very clear.
State v. Vishal Singh 14/19 15
32. It must be indicated that during the course of cross examination of PW1, each of such premises were successfully demolished by the defence. First thing first, though PW1 was a professional, it would be erroneous to believe that he was an expert within the meaning of Section 45 of the Indian Evidence Act. He conceded that for a lay man it would be difficult to make out that the case property in this case was a fake or counterfeit. He testified in his cross examination that he had gained knowledge on the subject after doing studies from surfing on the internet particularly google.
33. Interestingly, during the course of cross examination, PW1 was put a US 100 dollar note by the defence counsel from his own pocket and the witness was asked to compare the features with one of the US currency note as the case property and he stated that the picture (Benjamin Franklin) on the two currency notes were similar. He further stated that the numerical numbers in both the notes were in eight digits and he stated that there was security thread also running in the currency notes which are the case property as in the case of US 100 dollar bill produced by the ld. defence counsel in his cross examination. He further conceded that the colour in the currency notes i.e. the one produced by the defence as well as the currency notes forming the case property was the same albeit with very minute difference that could only be made out by an experienced State v. Vishal Singh 15/19 16 person. He testified that the colour as well as artistic work on the back of both currency notes was identical as well.
34. As regards feature no.2, he stated that a common man might not be able to make out a distinction between black and dark black. As regards third feature, he stated that if currency notes wad is kept in a chest even for a long time, then even its freshness would remain as on the date of its printing and may not become rough. As regards feature no. 5, he stated that by hazy he meant blurred and such distinction between clear and hazy could only be made if seen in light and he then conceded that he does not call himself to be an expert.
35. At the cost of repetition, PW1 cannot be said to be an expert and no official from HDFC bank was examined during investigation or produced during the trial to elaborate on what basis they formed an opinion that the currency notes were counterfeit. Much reliance has been placed by the prosecution on the testimony of PW6 Ms Anne M. Brunn, Assistant Regional Security Officer from Embassy of US at Chanakya Puri, New Delhi who produced the report of the US Secret Service Ex. PW6/B which undoubtedly reveal that the currency notes in question were examined by Greg Patton, Special Agent Incharge and the elaborate report brings out that the currency notes were manufactured using an offset method of State v. Vishal Singh 16/19 17 printing possessing simulated water mark and security thread which had been printed between two pieces of paper while in genuine currency notes the water marks were embedded in the paper and not printed; and also that the genuine currency notes consists only a single piece of paper. The report exemplifies other distinctive features such as colour on the currency notes, colour location, security thread not possessing ultra violet properties as in the case of genuine currency notes, besides the serial numbers that have not been utilized for printing. Interestingly, the report also indicates that the foreign currency notes in question examined by the agent had been reported in circulation in Florida, New York, California and North Carolina from 2002 to 2007. First thing first, the said witness has not been brought in the witness box. Any how, even believing the said report to be correct, it does not indicate if the distinctive features that were deciphered to arrive at such a conclusion could be ascertained by a common man on having a bare look at such currency notes.
36. I am afraid it is on this aspect that I find that the defence of the accused is believable that he probably was duped when stayed in London where the fake currency notes were bonafidely converted by him. His defence that he wanted to retain currency notes of higher denomination as a matter of convenience appears to be quite State v. Vishal Singh 17/19 18 plausible. It goes without saying that accused is a well qualified person having done Merchant Navy Course in Singapore and working as Maritime OfficerIII during the relevant time. His version that he was on his ship for about four months prior to the date of incident and the ship sailing from Panama, Ecuador and then reaching London during which time he had accumulated some money in US currency cannot be disbelieved.
37. Although he was an educated person, it would be too much to expect from him being at such young age of 24 at the time of incident to understand the distinctive features that could be found in genuine US currency notes. At the cost of repetition, evidence of PW1 itself suggest that it was impossible for a common man to make out the features in the currency notes so as to determine the same were genuine or counterfeit.
FINAL ORDER
38. In the said view of the discussion, I find that it is difficult to discern that the accused had knowledge or reasons to believe that the currency notes which he was possessing were counterfeit and not genuine and in all probabilities it appears that he was duped by some unscrupulous money exchanger at London which fact had not been investigated by the police.
39. In the said view of the discussion, I find that the prosecution miserably fails to prove its case against the accused beyond State v. Vishal Singh 18/19 19 reasonable doubt. The accused is acquitted of all the charges. His Personal Bond and Surety Bond are cancelled. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 13.05.2013 ASJ01/PHC/NEW DELHI
13.05.2013
.....
State v. Vishal Singh 19/19