Gujarat High Court
Kamlesh @ Kanaiyalal Shivandas ... vs State Of Gujarat on 30 January, 2024
NEUTRAL CITATION
R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 19890 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KAMLESH @ KANAIYALAL SHIVANDAS JETHWANI
Versus
STATE OF GUJARAT
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Appearance:
MR YASH N NANAVATY(5626) for the Applicant(s) No. 1
MR. BHARGAV PANDYA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 30/01/2024
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.
2. The present application is filed under Section 439 of the Page 1 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11208050230018 of 2023 registered with the 'A' Division Police Station, Rajkot City of the offence punishable under Sections 489(A), 489(B), 489(C), 489(D) and 114 of the Indian Penal Code.
THE FACTUAL PRISM:
3. The complaint came to be registered by one Tusharbhai Sureshbhai Raval, working as the Branch Operation Head at Axis Bank, Yagnik Road Branch, Rajkot against unknown persons alleging that on 13.01.2023, when the complainant was performing his duties at the Bank, one Ashishbhai Kamleshbhai Badiyani, working as the cashier in the said Bank came to him and informed that one of the account holders of the bank has come to deposit some cash amount in the bank which upon being scrutinized, found to be fake currency notes. Therefore, the complainant along with cashier Ashishbhai Badiyani went to meet the said customer, namely, Sapariya Sandeepkumar Kantilal. It is alleged that the said Sapariya Sandeepkumar Kantilal deposited 26 currency notes in the denomination of Rs.500/-, out of which, 25 currency notes were found to be fake currency notes. Therefore, upon inquiry being made, the said Sapariya Sandeepkumar Kantilal told that he did not have any knowledge about the fake currency notes. Therefore, after informing the Branch Manager Mr. Mehulbhai Parekh about the same, necessary procedure as per the guidelines of the Reserve Bank of India was undertaken by the Bank.
Page 2 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined 3.1 On the very same day, at around 2:15, two security guards of the Axis Bank A.T.M, namely, Rasikbhai Khetariya as well as Krishana Kheradiya came to the first informant and informed that total six fake currency notes in the denomination of Rs.500/- were found from the A.T.M. machine and upon asking them about as to who had deposited the said fake currency notes in the A.T.M. machine, they had given the name of Sapariya Sandeepkumar Kantilal. Thus, in all, total 31 fake currency notes in the denomination of Rs.500/- were found from the Axis Bank, Yagnik Road Branch, Rajkot.
3.2 Thereafter, investigation was carried out and during the course of investigation, total eight persons have been arraigned as the accused.
3.3 After completion of the investigation, police filed charge- sheet before the court of Chief Judicial Magistrate, Rajkot against all the accused persons including the present applicant specifically alleging that the accused No.1-Bharatbhai @ Kishorbhai Merambhai Boricha had suffered a huge financial loss and went into debt and to come out from the said debt, he was in need of fake currency notes and, therefore, he asked his friend, i.e, accused No.2-Tejas Jasani about the same, upon which, the accused No.2 recollected that once his friend, i.e., accused No.4- Vimal Thadeshwar told him that he can provide fake currency notes if somebody is in need. Therefore, the accused No.2 got introduced the accused No.1 to the accused No.4 saying that the said accused No.4 is doing the business of fake currency notes. Then, the accused No.1 contacted the accused No.4 who gave assurance of providing him the fake Page 3 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined currency notes. In queue, the accused No.4 contacted the accused No.5-Gurprit Singh and demanded the fake Indian currency notes of Rs.5,00,000/-. The accused No.5, in turn, contacted the accused No.6-Kamlesh @ Kanu and ordered for fake Indian currency notes of Rs.5,00,000/-, who then contacted the accused No.7-Rameshbabu and asked for fake Indian currency notes of Rs.5,00,000/-. So, the accused No.7 along with accused No.8-Rameshwari Anu printed/manufactured the counterfeit Indian Currency Notes of Rs.5,00,00/- by using the equipments lying at the rented premises.
3.4 Thereafter, the accused No.7 with a view to gain some monetary benefits, provided the said counterfeit Indian currency notes of Rs.5,00,000/- to the accused No.6 on receipt of payment of genuine Indian currency of Rs.1,25,000/-. Then, the accused No.6, i.e, the present applicant came to Rajkot along with the counterfeit currency notes of Rs.4,67,000/- and thereafter visited the office of accused No.4 along with accused No.5. There, in the presence of accused No.3- Mayur and accused No.5-Gurpritsingh, the accused No.6 handed over the counterfeit India currency notes of Rs.4,67,000/- to the accused No.1-Bharatbhai Bodiya on receipt of payment of genuine currency notes of Rs.2,10,000/- through Angadiya and thereby elicited personal monetary benefits.
3.5 Thereafter, the accused No.1-Bharat Bodiya circulated the said counterfeit Indian currency notes of Rs.4,67,000/- in the open market through various modes and transactions by mixing some genuine currency notes into the same. After that, Page 4 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined the accused No.1 through accused No.5 demanded further counterfeit currency notes from accused No.6, who in turn placed the same to the accused No.7 and accordingly the accused No.7 along with accused No.8 printed further fake Indian currency notes of Rs.12,07,500/- and handed over the same to the accused No.6 on receipt of payment of genuine currency of Rs.1,00,000/- which was seized by the Investigating Agency from the possession of the accused No.6, i.e, the applicant herein.
3.6 Thus, just with a view to gain some monetary benefits, all the accused persons, with the help of each other, have committed the present offence.
3.7 The applicant-accused had preferred an application at post charge-sheet stage being Criminal Misc. Application No.3369 of 2023 before the learned Principal District & Sessions Court, Rajkot which came to be rejected by the learned Sessions Judge vide its order dated 21.09.2023. Hence, the present petition.
SUBMISSIONS BY THE APPLICANT:
4. Learned advocate Mr. Yash Nanavaty appearing for the applicant has submitted that the applicant-accused was arrested on 21.01.2023 and he is in jail ever since. Learned advocate Mr. Nanavaty has also submitted that the investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that so far as the role of the present applicant-accused is concerned, he ordered for counterfeit Indian currency notes and, accordingly, the Page 5 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined other co-accused persons manufactured the same and handed over to the applicant-accused on receipt of payment of genuine Indian currency notes. It is alleged that the applicant- accused, in turn, just with a view to gain some monetary benefits, handed over the said fake currency notes to the accused No.1 on payment of genuine currency notes, who circulated the same in the open market through various modes and transactions. Learned advocate Mr. Nanavaty has further submitted that the present applicant-accused is in the business of marketing and supply of Chocolates and other articles to various retailers and other business entities and for that purpose, he often used to visit Rajkot and, therefore, he came in contact with accused No.5. The applicant-accused has never indulged in any kind of activity of counterfeiting of Indian currency notes. The applicant-accused used to meet the accused No.5-Gurpritsingh whenever he visited Rajkot as they were known to each other. However, the applicant-accused did not have any knowledge about the alleged dealing of counterfeit notes by Gurpritsingh and other accused persons. It is moreso submitted that on 18.01.2023, the applicant- accused was at Pune along with his son where he received a message that the accused No.5-Gurpritsingh has been arrested by the Rajkot Police and the police was inquiring about the applicant-accused. So, the applicant-accused thought it fit to reach Rajkot as early as possible and, therefore, he immediately booked air-tickets of 19.01.2023 from Pune to Ahmedabad. However, the applicant-accused was not permitted to board the flight and was arrested by the Pune police at the airport under the instructions of the Gujarat Page 6 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined Police. The luggage of the applicant-accused was checked by the Pune police but nothing incriminating was found from the custody of the applicant-accused. It is submitted that thereafter the applicant-accused was taken to the nearby police station. Thereafter, on the very next day, the Gujarat police reached there and took the custody of the applicant- accused. Learned advocate Mr. Nanavaty has also submitted that it is stated in the arrest Panchnama that when the applicant-accused was arrested, he was having one bag with him from which 2415 fake currency notes in the denomination of Rs.500/- aggregating to Rs.12,07, 500/- were found. However, the said story put forward by the Investigating Agency is not believable as the applicant-accused was arrested and searched by the Pune police but nothing incriminating was found from the possession of the applicant-accused. Learned advocate Mr. Nanavaty has further submitted that the accused No.2-Tejas Jashani, accused No.3-Mayurbhai Bipinbhai Thadeshwar and accused No.4-Vimal Thadeshwar, having more or less similar role than that of the applicant-accused, have already been released on bail by the Coordinate Benches of this Court and, therefore, on the ground of parity also, the bail application of the applicant-accused may be considered.
5. In such circumstances, referred to above, learned advocate Mr. Nanavaty prays that there being merit in his application, the same be allowed and the applicant-accused be released on bail.
SUBMISSIONS BY THE RESPONDENT-STATE:
6. The learned APP Mr. Bhargav Pandya appearing on behalf of Page 7 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant-accused is clearly found out from the police papers. Learned APP Mr. Pandya has also submitted that 2415 counterfeit Indian currency notes in the denomination of Rs.500/- were recovered by the police from the possession of the applicant-accused. It is further submitted that a perusal of the materials available on record shows that the applicant is a part of a well-organised syndicate. The syndicate is involved in printing, procuring, circulating Fake Indian Currency Notes. It is stated that the applicant is alleged of committing extremely serious offence which has the effect of crippling the economy of the country. The Call Data Record collected by the Investigating Officer also indicates that the applicant-accused was in constant touch with the other co-accused. Therefore, considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.
7. I have heard learned counsel for the parties and perused the record.
8 Section 489A to 489D of the Indian Penal Code provides as under:
"489A. Counterfeiting currency notes or banknotes. Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency note or banknote, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and Page 8 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined shall also be liable to fine.
489B. Using as genuine, forged or counterfeit currency - notes or banknotes. 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 banknote, 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.
489C. Possession of forged or counterfeit currency notes or banknotes. Whoever has in his possession any forged or counterfeit currency note or banknote, 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.
489D. Making or possessing instruments or materials for gorging or counterfeiting currency - notes or banknotes. Whoever makes, or performs, any part of the process of making, or buys or sells or disposes of, or has in his possession, any machinery, instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency notes or banknotes, 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."
9. The aforesaid provisions (Section 489A to 489D) of Indian Penal Code, 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 Page 9 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined adequate protection to currency notes and bank notes. [kindly see AIR 2005 SC 128 - K. Hasim v. State of Tamil Nadu]
10. Sections 489A, 489B, 489C, 489D and 489E were specially inserted by the legislature in the IPC to protect the economy of the country.
11. The Supreme Court in K Hashim v. State of Tamil Nadu, (2005) 1 SCC 237, has explained the legislative intent of the provisions pertaining to counterfeiting of currency. Paragraph 46 to 50 of the said judgement reads as under:-
"46. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the 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 banknotes.
47. Section 489-A not only deals with complete act of counterfeiting but also covers the case where the accused performs any part of the process of counterfeiting. Therefore, if the material shows that the accused knowingly performed any part of the process of counterfeiting, Section 489-A becomes applicable.
48. Similarly Section 489-B relates to using as genuine forged or counterfeited currency notes or banknotes. The object of the legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which could lead to their circulation.
49. Section 489-C deals with possession of forged or counterfeit currency notes or banknotes. It makes possession of forged and counterfeited currency notes or banknotes punishable. Possession and knowledge that the currency notes were counterfeited notes are necessary ingredients to constitute offence under Sections 489-C and 489-D. As was observed by this Court Page 10 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined in State of Kerala v. Mathai Verghese [(1986) 4 SCC 746 :
1987 SCC (Cri) 3 : AIR 1987 SC 33] the expression "currency notes" is large and wide enough in its amplitude to cover the currency notes of any country. Section 489-C is not restricted to Indian currency note alone but it includes the dollar also and it applies to American dollar bills.
50. The wording of Section 489-D is very wide and would clearly cover a case where a person is found in possession of machinery, instrument or materials for the purpose of being used for counterfeiting currency notes, even though the machinery, instruments or materials so found were not all the materials particular (sic) required for the purpose of counterfeiting."
12. Over a period of time, we have come across cases where attempts are being made to destabilize the economy of the Country either by illegally smuggling or pumping the fake Indian currency notes into India or by manufacturing the same in the country itself. The intention behind the same is to damage the Indian economy by circulating the fake currency notes in the market whether manufactured in India or being pumped/smuggled through external sources. The technology used in printing counterfeit Indian notes is so sophisticated that ordinary people or even exchange employees cannot distinguish them from the original notes. Therefore, in order to control the said menace completely, the Government machinery needs to take appropriate steps to ensure that there is no further rise in the circulation of fake notes and that the problem is uprooted.
13. The case of the applicant is that other co-accused has been granted bail by a Coordinate Bench of this Court.
Page 11 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined However, this Court is of the opinion that the applicant cannot claim parity with them. The applicant is accused of offences under Section 489A, 489B, 489C and 489D of the IPC. As stated earlier, the applicant is a part of the well-oiled machinery/syndicate dealing in printing and circulation of fake currency notes and it has the propensity of having a disastrous effect on the country's economy. The nature of the activity, the chances of the applicant absconding/jumping bail or continuing to indulge in the same activity on release cannot be ruled out at this juncture. It is also found out from the record that the Investigating Officer has recovered huge number of fake currency notes, i.e, 2415 in number in the denomination of Rs.500/- aggregating to Rs.12,07,500/- from the conscious and physical possession of the applicant-accused and at the time of seizure of the said fake currency notes, a detailed Panchnama in the presence of the Panchas was drawn and the said Panchnama is part and parcel of the record. However, learneed advocate for the applicant has raised objection about the contents of the said Panchnama by putting reliance upon other circumstances that at the time of his initial arrest at Pune, his phycial search was conducted by the police at Pune but at that point of time, nothing incriminating was found from the custody of the applicant-accused. Therefore, the story put forward by the Prosecuting Agency cannot be believable and palatable. However, in my view, the said defense raised by the learned advocate for the applicant can be considered at the time of leading evidence and recording of the statements of the witnesses during the course of trial. The applicant has been found in possession of huge number of Fake Indian Page 12 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined Currency Notes and the purpose of these fake currency notes were meant for circulation lest there is no point having counterfeit currency notes. Maximum punishment for offence under Section 489D is imprisonment for life. This Court is therefore not inclined to grant bail to the applicant at this stage.
14. The submission of learned counsel Mr. Nanavaty to grant bail to the applicant on the ground that the other co-accused whose roles are more or less similar to that of the applicant- accused, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. In this context, I would like to refer to and rely upon some of the relevant observations made by the Hon'ble Apex Court in the case of Tarun Kumar vs. Asst. Director, Directorate of Enforcement, Special Leave Petition No.9431 of 2023, decided on 20.11.2023, which read thus;
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Page 13 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
15. Lastly, it may be noted that as held in catena of decisions, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies Page 14 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024 NEUTRAL CITATION R/CR.MA/19890/2023 CAV JUDGMENT DATED: 30/01/2024 undefined and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Undoubtedly, economic offences have serious repercussions on the development of the country as a whole. To cite a few judgments in this regard are Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, reported in (2013) 7 SCC 439, Nimmagadda Prasad vs. Central Bureau of Investigation, (2013) 7 SCC 466, Gautam Kundu vs. Directorate of Enforcement (Prevention of Money- Laundering Act), Government of India Through Manoj Kumar, Assistant Director, Eastern Region, (2015) 16 SCC 1, State of Bihar and Another vs. Amit Kumar alias Bachcha Rai, (2017) 13 SCC 751. The Supreme Court taking a serious note with regard to the economic offences had observed as back as in 1987 in case of State of Gujarat vs. Mohanlal Jitamalji Porwal and Another, (1987) 2 SCC 364 as under:-
"5... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest..."Page 15 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024
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16. Taking into consideration the facts and circumstances of the case, gravity of offence and the manner, in which, the applicant was found in possession of huge fake/counterfeit currency notes, and was trying to use it genuine and taking in view that the act of the present applicant is against the economy of the country as the currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country required to be protected adequately as the applicant prima facie cannot be said to unwary possessors or users of fake currency notes. Therefore, I do not consider it is fit case for grant of regular bail to the applicant/accused.
17. In the result, the present application fails and is hereby rejected. Rule is discharged.
(DIVYESH A. JOSHI,J) VAHID Page 16 of 16 Downloaded on : Tue Jan 30 20:46:35 IST 2024