Karnataka High Court
Smt J Vanitha @ Thangam vs State By on 3 July, 2019
Bench: Ravi Malimath, H.P.Sandesh
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 3RD DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.107 OF 2019
BETWEEN:
SMT. J. VANITHA @ THANGAM
WIFE OF JAGANNATHAN,
AGED ABOUT 48 YEARS,
RESIDING AT NO.F-38, L N BUILDING,
2ND FLOOR, 3RD CROSS,
4TH MAIN ROAD,
NEAR BRAMHANAND MUTT,
DAYANANDA NAGAR,
RAMACHANDRAPURAM,
BENGALURU-560 021.
... APPELLANT
(BY SRI S. BALAKRISHNAN, ADVOCATE)
AND:
STATE BY
NATIONAL INVESTIGATING AGENCY,
BENGALURU,
REPRESENTED BY PRASANNA KUMAR,
SPP FOR NIA CASES,
2
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(BY SRI P. PRASANNA KUMAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 21(4) OF NATIONAL INVESTIGATION ACT
PRAYING TO SET ASIDE THE ORDER DATED 26.12.2018
PASSED BY THE XLIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA
CASES) AT BENGALURU AND RELEASE HER ON BAIL IN
SPL.C.C.NO.785 OF 2018 (FIR NO.RC-26/2018/NIA/DLI
ON THE FILE OF NIA) FOR THE OFFENCE PUNISHABLE
UNDER SECTION 489B,489C AND 120(B) READ WITH
34 OF IPC, PENDING ON THE FILE OF XLIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT
FOR TRIAL OF NIA CASES), BENGALURU.
*****
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION THIS DAY, SANDESH J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is filed under Section 21(4) of National Investigation Act praying to set aside the order dated 26-12-2018 passed by the XLIX Additional City Civil & Sessions Judge (Special Court for trial of NIA cases) at Bengaluru and release the appellant on bail in 3 Special Case No.785 of 2018 for the offence punishable under Sections 489-B, 489-C, 120-B and Section 34 of IPC. The appellant herein approached the Court below by filing the bail application under Section 439 of Cr.PC on behalf of accused No.4 and the same was rejected by the trial court. Being aggrieved by the said order, the present appeal is filed on the following grounds:-
2. The main contention of the appellant is that accused Nos.1 to 3 were arrested on 8-8-2018 and a sum of Rs.4,34,000/- fake Indian currency notes were recovered. Based on the disclosure statement of accused No.2, a raid was conducted and fake currency notes of Rs.2,50,000/- was recovered from the house of the present appellant. The other contention is that, having considered the material on record, it attracts only Section 489-C of IPC and not other offences.
3. The learned counsel appearing for the appellant would submit that there are no material 4 against this appellant for the offence punishable under Section 489-B and also for the offence under Section 120-B of IPC. Apart from that, he also submits that the appellant being a lady, this Court has to take note of the first proviso to Section 437 of Cr.PC and in the absence of any material with regard to the appellant indulging in circulation of fake notes the appellant is entitled for bail. The counsel further submits that the punishment for the offence under Section 489-C is up-
to imprisonment for 7 years or with fine or with both. On that ground the appellant is entitled for bail.
(a) In support of his contention he relied upon the Judgment of the Punjab & Haryana High Court in the case of MOHAMMAD AHMED SADDIQI vs. STATE OF PUNJAB reported in 2005 Cri.L.J 3053. With reference to the above Judgment, he would contend that in order to prove possession of the fake notes, the prosecution has to prove that the offender had a reason to believe 5 that the currency notes were forged or counterfeit or used those notes as genuine one.
In the case on hand, there is no prima facie material to believe the case of the prosecution.
(b) The next Judgment relied upon by the learned counsel is of the Allahabad High Court in the case of SHAKUNTALA DEVI vs. STATE OF U.P., decided on 14-10-1985 reported in 1986 Cri.L.J 365 with particular reference to the word "may" and the discussion made in paras-5 and 14 wherein the word "may" has been used in the first proviso to Section 437 of the Code to mean "shall" and "must". The expression has been used as mandatory and not as directory and hence taking note of the right of liberty of the citizen this court has to consider the fundamental right envisaged under Article 21 of the Constitution of India to enlarge the appellant on bail.
6
4. Per contra, the learned counsel appearing for the respondent would contend that the offence invoked against the appellant is a heinous offence which disturbs the economic stability of the country and there are prima facie material to believe that this appellant had indulged in circulating the fake notes. He would also submit that at the first instance, based on the statement of accused No.2, when the raid was conducted in the house of the appellant fake notes of Rs.2,50,000/- were found. He also submits that not only recovery was made, mobile hand set was also seized and found two SIM cards and out of them one was working and the other one was not in order and on verification of the same from the concerned authority, it was found that this appellant was in contact with accused No.2 and that 23 phone calls were made. From this, it is clear that this appellant had also indulged in circulating fake currency notes with conspiracy of other 7 accused persons. The counsel also referred to the detailed objections filed in this appeal.
5. The counsel would also contend that the CDR analysis of her mobile phone particularly No. 9342860618 which is subscribed in her husband's name clearly establish her association with accused No.2 and also with the suspects Nirmala and others were involved in fake note racketing. This also establishes that she was indulged in circulating fake currency notes.
(a) The counsel in support of his contention also relied upon the Judgment of this Court in respect of accused No.1, appeal was rejected in Criminal Appeal No.2285 of 2018 dated 8th February, 2019.
(b) The counsel in support of his contention relied upon the Judgment of the Apex Court in the case of K.HASHIM vs. STATE OF TAMILNADU reported in (2005) 1 SCC 237 regarding the very object of Sections 489-A to 489-E wherein it is held that it is not only to 8 protect the economy of the country but also to provide adequate protection to currency notes and bank notes. However, the very object of bringing the amendment to the particular offence is to stop circulation of forged or counterfeit currency notes or bank notes. He also referred to the discussion made in para-46 with regard to the object.
(c) The counsel also relied upon the Judgment in the case of IASAAK IBRAHIM SANDHI NOVDA vs. STATE OF GUJARAT reported in 2000 SCC ONLINE GUJARAT 195. He brought to our notice the relevant para of the Judgment with regard to the person who has joining hands with others putting the fake currency in circulation involved himself in trafficking or possessing fake currency notes, cannot on the ground of liberty, be released on bail because there is likelihood of this subjugating larger interest, social order and national economy repeating the same wrong. 9
(d) The counsel also relied upon the Judgment in the case of PRASHANT BHARTI vs. STATE (NCT OF DELHI) reported in (2013) 9 SCC 293. Relying on this Judgment brought to our notice with regard to Sections 45-A, 65-A, 65-B and 85-B of the Evidence Act, with regard to mobile phone call details. The Apex Court in its Judgment held that the evidence of conclusive in nature Criminal trial- clues and Tell-Tale Signs/Forensics Mobile phone data is admissible.
In the case on hand also, the prosecution has collected the material with regard to this appellant having nexus with accused No.2.
(e) The counsel also relied upon the Judgment in the case of SIDHARTHA VASHISHT ALIAS MANU SHARMA vs. STATE (NCT OF DELHI) reported in (2010) 6 SCC 1 and brought to the notice of this Court with regard to the principles in respect of evidence of phone calls was relevant and admissible piece of evidence under the Evidence Act.
10
(f) The counsel also relied upon another Judgment in the case of PRAHLAD SINGH BHATI vs.NCT, DELHI AND ANOTHER reported in (2001) 4 SCC
280. He relied upon this Judgment countering the arguments of the appellant's counsel with regard to Section 437 of Cr.PC. He would contend that the Apex Court in its Judgment held that it does not, however, mean that the persons specified under the first proviso to sub-Section (1) of Section 437 of Cr.P.C. should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon the Court, other than the High Court and Court of Session to release the person on bail. It is to be noted that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred upon the Court has to be exercised judiciously.
11
6. Having heard the arguments of the appellant's counsel and also the counsel appearing for the respondent, the point that arises for our consideration is:
"Whether the impugned order is liable to be set aside granting the bail in favour of the appellant herein?"
7. Having considered the contentions of both the appellant's counsel and also the respondent's counsel, before adverting to the grounds of the appeal it is necessary to mention in nutshell the facts.
8. The facts of the case is that on the information by the National Investigating Agency, a communication was sent to the concerned police that some persons have indulged in circulating the fake currency notes and based on that communication the concerned jurisdictional police apprehended accused Nos. 1 to 3 and recovered amount of Rs.3,96,000/- 12 from accused No.1, Rs.18,000/- from accused No.2 and Rs.20,000/- from accused No.3. All the notes are of Rs.2,000/- denomination which are fake notes. On the statement of accused No.2, a raid was conducted on the house of the appellant and fake notes of Rs.2,50,000/- recovered. Therefore, the appellant's counsel contend that the trial Judge did not consider the matter in right perspective and also did not invoke Section 437 of Cr.PC since the appellant being a woman and sub- proviso has to be invoked taking note of the circumstances under which the amount was recovered at the instance of this appellant. Apart from that, his very contention that recovery was made at the instance of this appellant and there are no material to bring the accused within the purview of Section 489-B and Section 120-B of IPC.
9. The other contention of the learned counsel for the respondent is that not only recovery was made and phone calls details were collected, the CDR reports 13 discloses that this appellant had indulged in not only possessing the fake notes and also involved in circulating the fake notes. There were 23 phone calls made between accused No.2 and the present appellant and the conversation details were also collected and the same evidences the fact that she had indulged in circulating the fake notes.
10. Having considered the material on record, the charge sheet has been filed against this appellant not only for offence under Section 489-C and for other offences under section 489-B and 120(B) of IPC. The offence under Section 489-B invoked against this appellant is punishable with imprisonment for life and also extendable to 10 years with fine which is mandatory. No doubt, the very argument of the appellant's counsel that if it is taken note of the offence under Section 489-C with regard to the possession of forged or counterfeit currency notes or bank notes, the 14 punishment is for up-to seven years or fine or with both.
11. The counsel appearing for the appellant would contend that there must be legal evidence and it requires certification under Section 65-B of the Evidence Act and also Section 45-A of the Evidence Act. Keeping in view the principles laid down in the Judgments referred supra and also Section 65-B of the Evidence Act which contemplates the certificate and the same has to be taken care of while admitting the document at the time of recording the evidence. The Supreme Court recently in Criminal Appeal No.819 of 2019 STATE OF KARNATAKA vs.. M.R. HIREMATH decided on 1-5-2019 has held that Section 65-B certificate need not be enclosed at the time of filing the charge sheet and the same is to be considered at the time of adducing the evidence with regard to the admissibility of the document. We have perused the charge sheet. The charge sheet has been filed not only 15 for the offence under Section 489C and also invoked Section 489-B and so also Section 120-B. The case of the prosecution is that all the accused persons conspired with each other and indulged in circulating the fake notes and the offence under Section 489 is also punishable with imprisonment for life. The very contention of the appellant's counsel that at the most it comes under Section 489-C cannot be accepted at this stage, For the reason that the Court while considering the bail petition has to consider the material on record that too with prima facie material. In the case on hand, the prosecution also relied upon the CDR analysis records and also the mobile phone which was seized at the instance of this appellant and when one SIM was functioning and the same discloses that she was in touch with accused No.2. Hence, there is prima facie material which discloses that this appellant had connection with accused No.2 and also the court has to take note of the gravity of the offence while considering 16 the matter to enlarge the accused on bail. The amount of Rs.2,50,000/- which are fake notes were recovered at the instance of this appellant and taking note of the same and also the prima facie material with regard to this appellant that she was having connection with accused No.2 who indulged in delivering the fake notes and circulating the same through this appellant, the prosecution is able to prima facie disclose that this accused not only possessed the money and was having nexus with accused No.2, with regard to the circulation of fake notes. Considering the material on record, the contention of the appellant's counsel that at the most it attracts only Section 489-C of Cr.PC cannot be accepted at this stage. Whether the appellant had indulged in circulation of notes or not has to be tested in trial and not at this stage. The contention of the appellant's counsel that proviso to Section 437 can be invoked also cannot be accepted for taking note of the gravity of offence which disturbs the economic stability of the 17 country and hence the Judgements relied upon by the appellant's counsel do not come to the aid of the appellant. Hence, we are of the opinion, that there are no grounds to allow the appeal and set aside the order of the Court below to grant bail in favour of the appellant as sought in this appeal. Hence, the appeal is dismissed.
However, the observations made while disposing of this appeal shall not influence the trial Court in disposing the matter on merits of the case.
Sd/- Sd/-
JUDGE JUDGE
Rsk/-