Punjab-Haryana High Court
Subhash Chander vs State Of Punjab on 12 November, 2014
Author: Jaspal Singh
Bench: Jaspal Singh
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.S-1749-SB of 2003 (O & M)
Date of Decision: November 12, 2014
Subhash Chander @ Bash
..... APPELLANT
VERSUS
State of Punjab
..... RESPONDENT
...
CORAM: HON'BLE MR. JUSTICE JASPAL SINGH
...
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
...
PRESENT: - Mr. S.S. Narula, Advocate, for the appellant.
Mr. Gurinderjit Singh, Deputy Advocate General, Punjab, for the respondent - State.
. . .
Jaspal Singh, J
1. The instant appeal has been preferred by Subhash Chander @ Bash, feeling dis-satisfied against judgment of conviction and order of sentence dated August 29, 2003 passed in case FIR No.130 dated May 12, 2000, under Sections 489-B, 489-C, 489-D, 467, 471, 420 IPC, registered at Police Station, Sadar, Gurdaspur, whereby he has been convicted under Section 489-C IPC and sentenced to undergo RI for a period of 3 years AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [2] and to pay fine to the tune of ` 500/-, and in default of payment of fine, to further undergo RI for a period of one month.
2. Briefly stated, the facts of the case are that on May 12, 2000, SI/SHO Varinder Singh alongwith ASI Ravinder Singh, HC Kuldip Singh, HC Ajwinder Singh and some other police officials was present at T-point of village Ghuralla in connection with checking of bad elements and vehicles etc. He received a secret information to the effect that a person is coming from the side of village Tibri on a scooter bearing registration No.PB-08Z-5653 towards Gurdaspur and in case, he is subjected to personal search, fake currency notes could be recovered from him. After sometime, a person came while driving the above referred scooter who was signaled to stop. When accosted, he revealed his name as Subhash Chander @ Bash. His personal search led to recovery of 33 notes of fake currency of the denomination of ` 50/- each, from the pocket of his trouser besides genuine currency notes of ` 120/- which were taken into possession by him vide separate recovery memos. He was also subjected to custodial interrogation, during which, he disclosed that he used to exchange fake currency notes of the denomination of ` 50/- with genuine currency notes of the denomination of ` 100/- with general public. He also disclosed that he alongwith Deepak Kumar @ Naresh Kumar AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [3] son of Charan Dass, resident of Tilak Nagar, Delhi, also purchased a computer for preparing counterfeit currency notes. During his interrogation, he also suffered disclosed statement and in pursuance thereof, he got recovered 166 currency notes of the denomination of ` 500/- each, two identity cards, one issued by Jalandhar Police and another issued by Gurdaspur Police, and two seals; one issued by SSP Jalandhar and another by SSP Gurdaspur. All these articles were taken into possession vide recovery memos. Fake currency notes recovered from the possession of accused Subhash Chander were also sent to the office of Reserve Bank of India, Sector 17, Chandigarh and those currency notes were found to be fake and a report in this regard was obtained by investigating officer.
3. After completion of police investigation, report under Section 173(2) Cr.P.C. was presented in the court of jurisdictional magistrate. Since offences complained of were exclusively triable by the court of Sessions, case was committed under Section 209 Cr.P.C. after having complied with the provisions contained under Section 207 Cr.P.C. Subhash Chander @ Bash and his co-accused Deepak Kumar @ Naresh Kumar were chargesheeted to face trial under Sections 489-B, 489-C, 489-D, 467, 471 and 420 IPC. Both the accused did not plead guilty to the charge and claimed trial. Accordingly, AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [4] prosecution was asked to substantiate the charge framed against them.
4. In order to prove the charge, prosecution examined PW-1 SI Ravinder Singh; PW-2 HC Gurmit Singh; PW-3 MHC Jasbir Singh; PW-4 SHO/SI Varinder Singh; PW-5 HC Balbir Singh; PW-6 S.K. Jolly, Assistant Maanger, RBI, Chandigarh; PW-7 C Avtar Singh; PW-8 Sampooran Singh Ghuman, Junior Assistant c/o office of DTO Jalandhar; PW-9 C Shamsher Singh. Thereafter, prosecution closed its evidence.
5. When incriminating circumstances appearing in prosecution evidence were put to both the accused for eliciting their explanation as required under Section 313 Cr.P.C., they pleaded their false implication in the instant case, denied all the allegations and took up the plea that no such currency notes were ever recovered from them and a false case has been foisted upon them. Appellant - Subhash Chander took up a specific plea that reads as under:-
".... As prior to this case the then SSP Gurdaspur Sh. Varinder Kumar had given me Identity Card as informer in the police department and I had been working with Sh. Varinder Singh the then SHO Sadar Gurdaspur and after sometimes Sh. Varinder Singh had asked me to arrange rs. 50,000/- for getting permanent number in the police department and for that I mortgaged my house which was situated in Kartarpur Distt. Jallandhar and that money I had given to Varinder Singh who took me to the residence of SSP Gurdaspur alongwith money where Varinder Singh had assured me that SSP had agreed to give me a permanent number but for few months they had not given me the permanent number in the police department. Then I met Varinder Singh and asked him to return my money or AVIN KUMAR 2015.03.25 13:56 adjust me in the police department which they had I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [5] promised earlier. But they assured me that wait for sometime more regarding my money, I had talk with Varinder Singh on his official telephone no. i.e. 30984 regarding this receipt of STD from which I had phoned is also with me and I had made entry in the visit register at the residence of SSP Gurdapur when I accompanied Varinder Singh to the residence of Sh. Ravinder Kumar SSP. I had also given an application to the Higher Authorities i.e. DGP Punjab, Human Rights commission Punjab regarding the high handed enough of the police as they took me from my residence from Kartarpur and planted the present case falsely against me so that I may not ask Varinder Singh regarding the money which I had paid to him and I will produce lead defence evidence."
6. Accused Subhash Chander did like to adduce evidence in defence and he examined DW-1 HC Kuldip Singh; DW-2 Parkash Singh, STD owner, Kartarpur; and DW-3 HC Jaswinder Singh.
7. After analyzing evidence adduced by the prosecution as well as accused, and hearing learned counsel for the parties, Subhash Chander was held guilty and convicted under Section 489-C IPC, whereas, for the alleged commission of remaining offences mentioned in the chargesheet, he was acquitted. Co-accused of the present appellant, namely, Deepak Kumar @ Naresh Kumar was acquitted of all charges.
8. Feeling dis-satisfied, Subhash Chander preferred the instant appeal which was admitted for hearing subject to all just exceptions. Notice of the appeal was issued. Lower court record was requisitioned and received.
9. While assailing the conviction and sentence awarded by learned trial court, learned counsel for appellant AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [6] argued that the same are absolutely against the evidence available on file and settled canons of law. Infact, prosecution has failed to bring home the guilt of appellant - accused even under Section 489-C IPC. If, for the sake of arguments, it is admitted that the appellant was found in possession of forged, fake and counterfeit currency notes, yet in the absence of any evidence to show that he knew or had reason to believe that notes in his possession were forged and counterfeit and he intended to use the same as genuine, he could not be convicted for the offence under Section 489-C IPC. To buttress his contention, learned counsel has drawn attention of this Court to the statement of appellant recorded by learned trial court under Section 313 Cr.P.C. to point out that no evidence has been brought on record regarding this aspect of the case and no question in this regard has been put to appellant. Therefore, on this score alone, conviction is not sustainable and is liable to set aside.
10. The next submission made by learned counsel is that appellant has been falsely implicated in the instant cae. It is an admitted fact that an Identity Card was issued to him by SSP Gurdaspur as a police informer but for getting issued a permanent number, SHO who is investigating officer in the instant case, put-forth a demand of ` 50,000/- as illegal AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [7] gratification, and for that purpose, he also mortgaged his property. Subsequently, instant case was foisted upon him Moreover, on the basis of evidence of SHO and evidence of other prosecution witnesses, co-accused of the appellant has already been granted the benefit of doubt, meaning thereby, that testimony of the prosecution witnesses including investigating officer is neither reliable nor trustworthy. Even no independent witness was also associated either at the time the appellant - accused was intercepted by police on May 12, 2000 or at subsequent stage when he is alleged to have been subjected to custodial interrogation, and got recovered fake currency notes in pursuance of his disclosure statement.
11. While concluding his arguments, it has been argued by learned counsel for the appellant that all these factors narrated above coupled with each other shatter the basic version of prosecution. As such, appellant is entitled to the benefit of doubt.
12. Per contra, learned State counsel has submitted that there is no infirmity or illegality in the impugned judgment and order of sentence and the same are in consonance with evidence available on file and settled canons of law. The recovery of forged, fake or counterfeit currency notes from the possession of accused stands fully proved and presumption can AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [8] easily be drawn that accused knew that currency notes were counterfeit one, and he intended to use the same as genuine. The defence plea taken by the appellant before the trial court is neither convincing nor proved, especially in the absence of any complaint lodged by the appellant that too prior to his involvement in the instant case. As far as non-joining of independent witness is concerned, effort was made by investigating officer to associate independent person from public but none was found available. Moreover, official witnesses are as good as other and their testimony cannot be discarded or disbelieved just on the basis of colour of their status. Instant appeal being devoid of merit is liable to be dismissed.
13. This Court has given an anxious thought to the aforesaid submissions made by learned counsel for parties and perused the record meticulously.
14. Appellant - Subhash Chander has been convicted and sentenced under Section 489-C IPC which reads as under:-
"489-C. 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 of 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 extent to seven years, or with fine, or with both."
15. A perusal of the provision extracted above, AVIN KUMAR 2015.03.25 13:56 depicts that mens rea of offence under Section 489-C IPC is I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [9] "knowing or having reason to believe the currency notes or bank notes to be forged or counterfeit", and further, that the fake or counterfeit currency notes have been intended to be used as genuine or that, it may be used as genuine. So, mere possession of such notes is not sufficient to constitute an offence falling within the provisions of Section 489-C IPC.
16. A close scrutiny of statement recorded under Section 313 Cr.P.C. of appellant discloses that no explanation has been sought with regard to the fact that he knew or had reason to believe that notes alleged to have been recovered from him were fake, forged or counterfeit as well as to the fact that in spite of knowledge to this effect, he intended to use the same as genuine. To fortify this observation, we can have the reference of the pronouncement of Hon'ble Apex Court in case M. Mammutti vs. State of Karnataka, AIR 1979 Supreme Court 1705 as well as judgment of this Court in Gurnam Singh vs. State of Union Territory, Chandigarh, 1992(1) RCR (Crl.) 661 (P&H).
17. In M. Mammutti's case (supra), Hon'ble Apex Court made the following observations:-
"We are not able to find any inconsistency between the answer given by the accused in his statement under Section 342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr. Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [10] 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 such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused know that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside and the appellant is acquitted of the charges framed against him."
18. In Gurnam Singh's case (supra), after elaborately discussing Section 489-C IPC, this Court made the following observations:-
"At the cost of repetition, it may be observed that the appellant had been charged under the aforesaid provisions of the Indian Penal Code. The portions of these provisions, which have been underlines above, would show that before a person can be held guilty under these Sections, it must be proved that such a person, while using as genuine forged or counterfeit currency notes or bank notes, knew or had reason to believe the same to be forged or counterfeit. Similarly, it is required to be established that if a person is possessed of a forged or counterfeit currency note or bank note, he can be held guilty of the provision, if he knew or had 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."
19. Similarly, in case Kashmir Singh vs. State of Punjab, 2006(2) RCR (Criminal) 477, Full Bench of this Court observed as under:-
"12. When the Trial Judge records the statement of an accused person under Section 313 Criminal Procedure Code with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Criminal Procedure Code and on first principles of fair trials as well, there is need to give every accused AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [11] person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under Section 313 Criminal Procedure Code in order to give the accused a fair opportunity to rebut the presumption. Indeed Sections 35 and 54 do entitle the accused to rebut the presumption but it is strange that Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under Section 35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused.
xx xx xx xx
19. For the above reasons, we would answer the question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Criminal Procedure Code by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved."
20. To the similar effect is the observation made by Hon'ble Apex Court in case State of Punjab vs. Hari Singh & others, 2009(2) RCR (Criminal) 143.
21. As has been discussed above, a glance on the statement of appellant recorded under Section 313 Cr.P.C. would reveal that neither any specific question with regard to aforesaid aspects has been framed nor put to the appellant. The explanation to be sought under Section 313 Cr.P.C. is not a mere formality, rather, absence of non-explanation to be sought from the accused - appellant on material aspects appearing in the prosecution evidence cast a serious doubt. It can be safely AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [12] concluded that it has resulted into a great prejudice to the appellant - accused.
22. Now coming to another aspect of the case.
Admittedly, neither the alleged recovered fake or counterfeit currency notes were neither converted into parcels nor sealed by investigating officer with his seal. In such a situation, possibility of tampering with the case property cannot be ruled out. Mere production of such loose notes before an officer of RBI or in the court during the course of evidence is not sufficient to draw presumption against the holder thereof that he intended to use the same as genuine or that the said currency notes were recovered from the possession of the appellant.
23. In Gurnam Singh's case (supra), even it was observed that when currency notes are of such a nature that mere look would not convince anybody that they were counterfeit, no presumption could be drawn that the accused knew that currency notes were counterfeit one.
24. Not only this, even recovery of currency notes was effected, allegedly in pursuance of disclosure statement of appellant - accused, from his residential house, but to the utter surprise, neither any witness was associated at the time of alleged custodial interrogation of appellant - accused nor suffering of any disclosure statement nor at the time of recovery AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [13] of fake currency notes from Delhi. SHO Varinder Singh, PW-4, has stated that he does not remember if any effort was made to associate any person from the public or mohalla. Though recovery was stated to be effected from the house of appellant - accused yet there is complete go-bye to the mandatory provision contained in Section 100(4) Cr.P.C. Even no entry was got incorporated in DDR maintained in the Police Station of the area in which recovery was effected. The house, from which, alleged fake or counterfeit currency notes were recovered, is comprised of only one room which was without any lock and key, rather, inhabited by the family of appellant which included his old mother, wife and four children. Even in the adjoining room, his another close relative has been residing. Place of recovery was neither a hidden place nor a place which was under lock and key possessed by appellant.
25. Thus, taking the case of prosecution from any of the angles, it cannot be said that prosecution has been successful to make out ingredients which constitute offence under Section 489-C IPC. Rather, case of the prosecution becomes highly doubtful and suspicious in view of discussion made above. As a result of the aforementioned discussion, this Court is of the considered view that the impugned judgment of conviction and order of sentence suffer from material infirmity and illegality AVIN KUMAR 2015.03.25 13:56 I attest to the accuracy and authenticity of this document High Court of Punjab & Haryana at Chandigarh Crl. Appeal No.S-1749-SB of 2003 [14] besides the fact that it is surrounded by material circumstances on account of which, false implication of appellant - accused cannot be ruled out. Accordingly, conviction and sentence imposed upon appellant vide impugned judgment and order is set aside by way of acceptance of the instant appeal. Resultantly, appellant - accused stands acquitted of the charge.
(Jaspal Singh)
November 12, 2014 Judge
avin
AVIN KUMAR
2015.03.25 13:56
I attest to the accuracy and
authenticity of this document
High Court of Punjab & Haryana at
Chandigarh