Calcutta High Court (Appellete Side)
Dhurendhar Chowdhury vs State Of West Bengal on 19 December, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Mr. Shivakant Prasad.
C.R.A. 70 of 2018
Dhurendhar Chowdhury
Versus
State of West Bengal
For the appellant: Dr. Jyotirmoy Adhikari.
For the State: Mr. Ranabir Roy Chowdhury,
Mr. Mainak Gupta.
Heard on: December 19, 2019.
Judgment on: December 19, 2019.
Shivakant Prasad, J.
This appeal is directed against judgment and order of conviction and sentence dated September 16, 2017 passed by the learned Additional Sessions Judge, Second Court at Jangipur, Murshidabad, in Sessions Serial Case No. 12 of 2015 arising out of Farakka Police Station Case No. 293 of 2014 dated August 25, 2014 under Sections 489B/489C of the Indian Penal Code, convicting the appellant for commission of offence punishable under Sections 489B/489C of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven (7) years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only for the offence punishable under Section 489B of the Indian Penal Code and to suffer 2 rigorous imprisonment for five (5) years and to pay fine of Rs. 5,000/- (Rupees five thousand) only for the offence punishable under Section 489C of the Indian Penal Code. It was directed that in default of paying fine, as aforesaid, the appellant would suffer simple imprisonment for one (1) year more. It was further directed that both the sentences would run concurrently.
The prosecution case, as alleged, against the appellant is to the effect that on August 25, 2014 at about 15.25 hours, on the basis of secret information, the appellant was apprehended by the police at Farakka and was caught with 12 pieces of fake Indian currency notes of the denomination of Rs. 1,000/- and 76 pieces of fake Indian currency notes of the denomination of Rs. 500/- sealed in different packets, totaling Rs. 50,000/- with which he proceeded to State of Bihar.
On the written complaint of Sub Inspector Ramakrishna Mishra of Border Security Force, Farakka Police Station Case No. 293 of 2014 dated August 25, 2014 under Sections 489B/489C of the Indian Penal Code was registered for investigation. Upon completion of investigation, charge sheet was filed against the appellant under Sections 489B/489C of the Indian Penal Code.
After the case was committed to the court of sessions on January 7, 2015, the learned Sessions Judge at Jangipur, Murshidabad, after having taken cognizance of the offence, transferred the case for trial and disposal to the court of the learned Additional Sessions Judge, Second Court at Jangipur, before whom the case was registered as Sessions Serial No. 12 of 2015.
Charges were framed under Sections 489B/489C of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined as many as ten (10) witnesses to bring home the charges levelled against the appellant. After the closure of prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure to which he declined to adduce evidence and stated that he is innocent and has been falsely implicated in the instant case.
In conclusion of trial, the learned Trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid.
The only ground taken in this appeal is that the learned trial judge has given much credence to the extra judicial confession of the appellant before the police authorities to the effect that he had knowledge that the currency notes possessed by him were fake currency notes and the learned trial judge committed a grave error in considering such extra judicial confession in convicting and sentencing the appellant.
At this stage of hearing, it is submitted by the learned advocate appearing on behalf of the appellant that the appellant is serving out sentence for last five years since the date of his arrest on August 25, 2014 and appears to have served out the sentence in respect of the charges levelled under Section 489C of the Indian Penal Code. It is further submitted that the learned trial judge committed an error while convicting the appellant for the offence under Section 489B of the Indian Penal Code by simply taking a cue from the decision of the Supreme Court in the case of Umashankar vs. State of Chattisgarh reported in A.I.R. 2001 S.C. 3074, wherein it has been held that the mens rea for the aforesaid offence is the knowledge or 3 having reason to believe that the notes are counterfeit. Unless the said knowledge is present, mere dealing in the counterfeit notes will not amount to an offence under Sections 489B/489C of the Indian Penal Code.
The mens rea in dealing with the counterfeit notes has been proved and the appellant who has been held to be guilty on the basis of his interrogation and confession made to the effect that the bank notes, which were kept in a black polythene packet, were all forged and he had specific knowledge of the same.
The seizure list being the exhibit-1 and the challan being the exhibit-3 prepared by the prosecuting agency shows that fake Indian currency notes worth Rs. 50,000/- were recovered from the possession of the appellant and the same has been analyzed by the Bharatiya Reserve Bank Note Mudran (P) Limited vide its analysis report dated December 8, 2014, being the exhibit-4 collectively, wherefrom it has been reflected that the referred suspected 88 currency notes, out of which 76 notes are of Rs. 500/- denomination and 12 notes are of Rs. 1,000/- denomination, are counterfeit notes.
Therefore, having critically examined the evidence on record and on perusal of the impugned judgment and order of conviction and sentence, I find that the learned trial judge has rightly concluded that the prosecution witnesses of search and seizure are in general agreement to the fact of recovery of 12 notes of Rs. 1,000/- denomination and 76 notes of Rs. 500/- denomination, which are all fake currency notes, from the possession of the appellant on August 25, 2014 at NTPC crossing at Farakka. Their evidence had stood to cross examination and the same has been well proved in the examination made by the Bharatiya Reserve Bank Note Mudran (P) Limited. The appellant also failed to explain any reason in support of his possession of the said currency notes during his examination under Section 313 of the Code of Criminal Procedure. He was found to have carried a large quantity of counterfeit notes and the place where he was apprehended is far off from his residence and the place of recovery is the entry point of most of the counterfeit notes entering this country from Bangladesh.
It appears that the learned trial judge also convicted the appellant for the offence punishable under Section 489C of the Indian Penal Code, which Section provides for using of genuine, forged or counterfeit currency notes or bank notes. The provision in the said Section is reproduced hereunder for its appreciation :-
"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 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."
On plain reading of the provision of said Section 489C, this court does not find on evidence that the appellant was found to be involved in selling to or buying or receiving from any other 4 person or otherwise trafficking the same or using the same as genuine Indian currency notes, as provided under Section 489B of the Indian Penal Code.
In the context of the discussions made above and upon hearing the learned advocates appearing for the parties, this court finds that the prosecution has been able to prove beyond reasonable doubt the offence made by the appellant as required under Section 489C of the Indian Penal Code for which the appellant was sentenced for rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-.
However, the appellant is found not guilty for the offence punishable under Section 489B of the Indian Penal Code and, as such, he is acquitted from the said charges.
If it is found that the appellant has served out the sentence of five years and if the fine already paid by him, he will be entitled to release from the jail custody on serving out the sentence for the offence punishable under Section 489C of the Indian Penal Code.
Accordingly, the appeal is allowed with the above modification.
In view of disposal of the appeal itself, nothing remains in the application for suspension of sentence filed under CRAN 2214 OF 2018 and the same is also disposed of.
Let a copy of the judgment along with the lower court records be sent down to the trial court at once.
Let a copy of this judgment be also communicated to the Superintendent, Correctional Home, Murshidabad, for necessary information and doing the needful.
Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
dns ( Shivakant Prasad, J. )