Delhi District Court
Sc No.:28222/16 State vs . Arjun Sharma & Ors Page No.1/32 on 22 October, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
TIS HAZARI COURTS, DELHI
Sessions Case No.:-28222/2016
Unique ID no.:-02401R0252222013
CNR No.DLCT01-001601-2013
State
Vs.
1. Arjun Sharma
S/o Late Sh. Mahant Sharma
R/o Village & PO Dudhiawa,
PS Nawal Pur, Distt. West Champaran,
Bihar.
2. Parma Shah
S/o Late Sh. Ambika Shah
R/o Vill. Khutbaniya Jaral Pur,
PS Yogapatti, Distt. West Champaran,
Bihar.
Vill. Naya Basti Manguraha,
Lauhariya, West Champaran,
Bihar.
3. Satender Singh
S/o Late Sh. Shukha Ram
R/o Vill. Behrola, P.O. Tikri Brahman,
PS & Distt. Palwal, Haryana.
4. Nagina Prasad
S/o Late Sh. Chandi Mehto
R/o Vill. Tadva Nand Pur,
Kanhitola, PS Bairiya,
Distt. West Champaran, Bihar.
5. Bipin Pandey
Late Sh. Parshuram, Pandey,
R/o Vill. Bettiah Dihi Kheratiya,
PS Manwapur, Distt. West Champaran,
Bihar.
SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.1/32
Case arising out of:-
FIR no. : 46/2013
Police Station : Crime Branch
Under Section : 489B/489C IPC
Date of Institution : 06.06.2013
Date on which arguments heard : 11.09.2018
Date of Decision : 22.10.2018
J U D G M E N T:-
1. Story of the prosecution in brief is as under:
That on 11.03.2013 at about 10 am one information was received to ASI Yash Pal who was present in the office of Special Team, Crime Branch, Prashant Vihar, Delhi that two persons hailing from Bettiah, Bihar are indulged in supplying of fake Indian currency notes and are coming to Delhi for supplying the same and at about 12:30 pm, they will come near Metro Gate no.1, Ajmere Gate side to supply the fake currency and will return to Bihar and if raid is conducted, they can be apprehended with fake currency. This information was shared with Inspector Anand and later on, in discussion with ACP (Special Team), a team led by ASI Yashpal comprising HC Shailender Singh, HC Shiv Kumar, Ct. Praveen, Ct. Anand Pal and Ct. Ravinder was constituted and two private cars were arranged. The team departed and reached near Metro Gate no.1, Ajmere Gate Side. At about 12:30 pm, two persons were noticed. They were apprehended and upon inquiry, their name was SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.2/32 disclosed as Arjun Sharma and Parma Shah. Arjun was found carrying two bundles of notes of Rs.1000/- which were 199 in total. Three bundles of notes in denomination of Rs.500 were also recovered from Parma Shah which were 302 in number. These notes were found to be fake. FIR was registered and investigation was conducted. Accused Arjun Sharma made a disclosure statement alleging that Nagina Prasad was the main supplier. Accused Satender Singh was also apprehended on 13.03.2013 and fake currency in denomination of Rs.500/- was also found from his possession. Thereafter, another raiding team was constituted and accused Nagina Prasad and Bipin Pandey were apprehended on 14.03.2013 and from their possession fake currency in the denomination of Rs.1000/- having worth of Rs.35,000/- and Rs.25,000/- was recovered.
2. After completion of investigation, final report under Section 173 Cr.PC was filed and charge under Section 489B IPC has been framed against accused Arjun Sharma and Parma Shah and charge under Section 489C has been framed against all the accused persons on 26.09.2013. Amended charge has been framed against accused Nagina Prasad and Bipin Pandey under Section 489C IPC on 06.08.2015.
3. In order to establish the liability of accused persons, prosecution has examined 9 witnesses. Statements of the accused SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.3/32 persons U/s 313 Cr.PC were recorded on 28.11.2014 and additional statement of accused Nagina Prasad with regard to certain remaining questions was again recorded on 10.07.2015. All the accused persons were willing to lead their evidence in their defence which was allowed and they have examined 6 witnesses in their defence.
4. Before proceeding further, as per mandate laid down under Section 354 (1) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion. It is mentioned here that charge has been framed under Section 489B & 489C IPC. The points of determination, therefore, are as under:
(i) Whether accused Arjun Shama and accused Parma Shah were found selling or buying or have received from any other person forged or counterfeit currency notes or bank notes knowing or having reason to believe the same to be counterfeit currency and they were indulged into trafficking of counterfeit currency using the same as genuine knowing or having reason to believe to be counterfeit currency?
(ii) Whether all the accused persons were found in possession of counterfeit currency knowing or having reason to believe to be forged or counterfeit and intending to use the same as genuine?
SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.4/32 The first point of determination is:
5. (i) Whether accused Arjun Shama and accused Parma Shah were found selling or buying or have received from any other person forged or counterfeit currency notes or bank notes knowing or having reason to believe the same to be counterfeit currency and they were indulged into trafficking of counterfeit currency using the same as genuine knowing or having reason to believe to be forged or counterfeit?
With regard to the first point of determination, the prosecution has to establish beyond reasonable doubt that accused Arjun Sharma and Parma Shah were selling or buying or receiving or indulged into trafficking of counterfeit currency notes using the same as genuine knowing or having reason to believe to be forged or counterfeited. In this regard, as the charge against accused persons namely Arjun Sharma and Parma Shah is under Section 489B IPC, therefore, the law pertaining thereto is relevant to mention here. Section 489B IPC reads as under:
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 SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.5/32 term which may extend to ten years, and shall also be liable to fine.
6. In order to establish the charge under Section 489B IPC, the prosecution must prove;
(I) that the currency-note or bank-note in question was forged or counterfeit.
(ii) that the accused sold to, or bought or received from, some person, or trafficked in, or used as genuine, such currency-note or bank-note.
(iii) that when he did so he knew or had reason to believe that it was forged or counterfeit.
7. Thus, to establish the ingredients of Section 489B IPC, prosecution has examined a number of witnesses.
The entire incident started from receiving some information from a secret informer by PW-1 ASI Yashpal Singh who has stated that on 11.03.2013, at about 10:30 am, he received a secret information from a informer that two persons had come from District Betia, Bihar along with fake currency with intension to circulate the same. It was further informed that they will leave Delhi at 12:30 pm after handing over the supply. This information was intimated to Senior Officer Inspector Anand SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.6/32 Singh who discussed the same with concerned ACP and permission to conduct raid was granted.
8. It is further stated by PW-1 that a raiding party was constituted comprising of HC Shailender, HC Sunil, Ct. Anand Pal, Ct. Ravinder and Ct. Praveen Kumar. PW-1 along with raiding party and secret informer, proceeded in two separate vehicles and at about 10:30 am, they reached at Ajmeri Gate from the side of New Delhi Railway Station. They asked public persons to act as witness but none came forward. PW-1 further stated that at about 12:30 pm (noon) two persons came from the side of exit gate of New Delhi Railway Station and secret informer pointed that they were the same persons who had come to circulate the fake currency notes. Thereafter, secret informer left the spot. Those two persons were apprehended by PW-1 with the help of other police officials and their names were revealed as Arjun Sharma and Parma Shah. From the search of accused Arjun Sharma, a bag was found containing fake currency notes and upon checking, they were found to be 199 notes in denomination of Rs.1000/-. These notes were found to fake. They were sealed accordingly vide seizure memo Ex.PW1/A. Accused Arjun Sharma also put his signatures on seizure memo.
9. Thereafter, accused Parma Shah was search and from his SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.7/32 possession three bundles of Rs.500/- denomination were recovered from his right pocket of Cargo pants. These notes were counted and found to be 302 in number and they all were fake. These notes were also seized vide seizure memo Ex.PW1/B. Accused Parma Shah put his signatures on the seizure memo. On the basis of these facts, rukka Ex.PW1/C was prepared and sent through Ct. Ravinder for registration of FIR. SI Prabhanshu also reached at the spot. Investigation of the case was handed over to him. Accused persons and case property along with relevant documents were also handed over to SI Prabhanshu. SI Prabhanshu prepared site plan Ex.PW1/D.
10. PW-1 has not been examined from the side of accused Satender and Nagina Prasad. On behalf of accused Arjun Sharma, his Counsel asked as to how PW-1 came to know that currency notes were fake for which it is replied that he verified by himself and found that the paper of the note was little thick.
11. PW-2 is HC Sushil Kumar who was working as Duty Officer at Crime Branch. He received a rukka Ex.PW1/A through Ct. Ravinder and recorded DD no.20A as well as thereafter, FIR no.46/2013 Ex.PW2/A. FIR along with rukka was handed over to Ct. Ravinder.
12. The next witness examined by the prosecution is PW-5 ASI SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.8/32 Shailender Singh who was a member of raiding team along with ASI Yashpal Singh and HC Shiv Kumar, Ct. Anand, Ct. Praveen, Ct. Ravinder as well as secret informer. ASI Yashpal had informed raiding team that information is received regarding delivery of fake currency notes by two persons at New Delhi Railway Station. It is stated by PW-5 that at about 10:15 am, along with all the members of raiding party and secret members, he left in two vehicles and reached at New Delhi Railway Station towards Ajmeri Gate side. They reached near Metro Gate no.1 where ASI Yashpal 4-5 public persons to join but none agreed. At about 12:30 noon, two persons came from the side of New Delhi Railway Station exit gate. At the instance of secret informer, they both were apprehended whose names were revealed as Arjun Sharma and Parma Shah. Public gathered there but none came forward and joined as witness. Accused Arjun Sharma was carrying a bag hanging on his shoulder and when it was checked, two bundles of Rs.1000/- rupee denomination were found and upon counting, they were 199 in number. These notes were sealed vide memo Ex.PW1/A.
13. Thereafter, accused Parma Shah was searched and from the pocket of his Cargo Pants, three bundles of notes of Rs.500/- denomination were recovered and they were found to be 302. These notes were also seized vide memo Ex.PW1/B. Bag of accused Arjun SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.9/32 Sharma was also taken into possession vide memo Ex.PW5/A. Rukka was prepared by ASI Yashpal and handed over the same to Ct. Ravinder for registration of FIR. Further investigation was marked to SI Prabhanshu who reached at the spot. ASI Yashpal handed over the accused and case property along with relevant documents to SI Prabhanshu. Accused Arjun Sharma and Parma Shah were arrested vide arrest memos Ex.PW5/B and Ex.PW5/C respectively. Both accused persons made their disclosure statements. Disclosure statement of accused Arjun Sharma is Ex.PW5/F and of accused Parma Shah is Ex.PW5/G.
14. It is further stated by PW-5 that on 13.04.2013, he along with SI Prabhanshu, Inspector Anand Singh, ASI Baljeet, ASI Jagdish and HC Shiv Kumar went to District Betia, Bihar and apprehended accused Bipin Pandey and Nagina Prasad at about 11:30 noon. Upon their search, accused Bipin Pandey was found carrying 25 notes of Rs.1000/- denomination and accused Nagina Prasad was found carrying 35 notes of Rs.1000/- denomination. The currency notes recovered from the possession of accused Bipin Pandey were seized vide memo Ex.PW5/H and the notes recovered from the possession of accused Nagina Prasad were seized vide memo Ex.PW5/J. Accused Bipin Pandey was arrested vide arrest memo ex.PW5/K and accused Nagina Prasad was arrested vide memo Ex.PW5/L. Accused Bipin Pandey made disclosure statement SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.10/32 Ex.PW5/P and accused Nagina Prasad made disclosure statement Ex.PW5/Q. On 24.04.2013, IO went to Govt. Press, Dewas for obtaining the report regarding fake currency notes.
15. During cross-examination, it is stated by PW-5 that he did not see any of the accused persons handing over or taking over fake currency to and from any person when they reached New Delhi Railway Station. No material contradiction has emerged from the cross- examination of this witness and he has corroborated what he had stated in his examination-in-chief.
16. The next witness examined by the prosecution is PW-6 ASI Baljit who was part of investigation since 13.03.2013. This witness is instrumental in the arrest of accused Satender. Accused Satender was arrested at the instance of accused Arjun Sharma and Parma Shah. It is stated that upon search of accused Satender, 40 currency notes in denomination of Rs.100/- in a bundle were recovered from right side pocket of his pants. These notes were sealed vide seizure memo Ex.PW6/A. Accused Satender was arrested vide arrest memo Ex.PW6/B and his personal search memo is ExPW6/C. Disclosure statement of accused Satender is Ex.PW6/D. PW-6 along with other police officials went to Batia Bihar in search of accused Bipin Pandey and Nagina Prasad SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.11/32 on 10.04.2013. On 13.04.2013 accused Bipin Pandey and Nagina Prasad were apprehended. It is stated by PW-6 that from the possession of accused Bipin Pandey 25 currency notes in denomination of Rs.1000/- were recovered from right side pocket of his pants which were found to be fake. They were seized vide memo Ex.PW5/H. Accused Bipin Pandey was arrested vide memo Ex.PW5/K. No material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had stated in his examination-in-chief.
17. The next witness examined by the prosecution is PW-8 Ct. Ravinder who has stated that on 11.03.2013, he was part of the raiding team which was including ASI Yashpal, HC Shailender, HC Shiv Kumar, Ct. Praveen, Ct. Anand Pal along with secret informer. It is stated by PW-8 that when they reached New Delhi Railway Station, at about 12:30 pm they apprehended two persons upon suspicion of having fake currency notes. They were apprehended, whose names were revealed as Arjun Sharma and Parma Shah. None of the public person joined the investigation despite request. There were 199 currency notes in denomination of Rs.1000/- found from accused Arjun Sharma and three bundles of currency notes in denomination of Rs.500/- each were recovered from the possession of accused Parma Shah. FIR was registered thereafter and case property was deposited with MHC(M). SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.12/32
18. During cross-examination of PW-8, one suggestion has been given which is contrary to the defence of accused persons, it is mentioned as under, ".........It is wrong to suggest that the notes were not counted at the spot but was counted in the car."
This suggestion counters the defence of accused persons that no currency was recovered from the spot and it implies as if accused persons were suggesting that the notes so recovered were not counted at the spot but in the car. There are minor variations being reflected from the cross-examination as to whether PW-8 had gone to police station along with rukka by metro or bus. This variation or contradiction, however, is not so material that it impeach the credit worthiness of this witness as a whole.
19. Next witness examined by the prosecution is PW-9 Vishal Gaurav who is Nodal officer at Bharti Airtel and he brought record pertaining to mobile no.9560494532 which is stated to be in the name of one Satender, as per their record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed. This witness also brought record pertaining to mobile no.9572042555 which is stated to be in the name of one Nagina Prasad, as per their SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.13/32 record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed. He further brought record pertaining to mobile no.9939970199 which is stated to be in the name of one Arjun Thakur, as per their record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed.
20. PW-9 further brought record pertaining to mobile no.9801943570 which is stated to be in the name of one Bipin Pandey, as per their record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed. He further brought record pertaining to mobile no.9546417830 which is stated to be in the name of one Bipin Pandey, as per their record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed. PW-9 further placed on record the call details of these mobile numbers. He further brought record pertaining to mobile no.8809546764 which is stated to be in the name of one Parma Shah, as per their record. Along with Customer Application Form, the identity proof in the form of Election Identity Card is also annexed.
21. It is alleged on behalf of the prosecution while examining PW-9 that all the accused persons were in constant touch with each other on SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.14/32 the day of incident and before as well as thereafter. No material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had stated in his examination-in-chief.
22. PW-4 is HC Jag Narain who was working as MHC(M) PS Crime Branch during March, April and May 2013. It is stated by him that case property duly sealed were deposited in the Malkhana. PW-4 further stated that during his tenure case property remained intact and was not tampered with.
23. PW-3 is Ct. Lokesh with regard to depositing the case property at Govt. Press, Dewas for expert opinion. It is stated by him that on 10.04.2013 he reached Malkhana PS Crime Branch and collected three exhibits to deposit the same at Dewas. He reached at Dewas at 11.04.2013 and deposited the exhibits with Govt. Press, Dewas. It is stated by him that so long as the case property remained in his custody it was not tampered with by anyone.
24. The last witness in the series is PW-7 SI Prabhanshu who is the second IO and who took charge of the present case from PW-1 ASI Yashpal Singh. PW-7 was the part of the team till filing of the charge- sheet before the Court. He had conducted all the remaining investigation after ASI Yashpal Singh. Accused Arjun Sharma and Parma Shah were SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.15/32 already apprehended by ASI Yashpal Singh and all other accused have been arrested by PW-7 including conducting the investigation. All the facts alleged by PW-7 during his examination have been stated by all the witnesses already, as mentioned above. Therefore, PW-7 is corroborating all the facts stated by other witnesses which are not repeated here for the sake of brevity.
25. Before proceeding further, it is important to discuss the relevant law pertaining to fake currency. The relevant provisions, as mentioned above, starts from Section 489A which talks about counterfeiting the currency note or bank note. It is not the case of prosecution that accused persons have counterfeit the currency which means a process by which one thing is caused to resemble another thing and its supposes that there is an original. Section 489B IPC which is attracted against accused Arjun Sharma and Parma Shah talks about selling or buying or receiving counterfeit currency note or bank note from any other person or one traffics in or uses as genuine, any such fake currency, having knowledge or reason to believe the same to be forged or counterfeit is liable for punishment. Thus, the most essential ingredient for attracting the liability of a person under Section 489B IPC is that there is either 'knowledge' or 'reason to believe'. Mere suspicion or doubt is not sufficient for fastening liability under Section 489B or SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.16/32 489C IPC.
26. It has been held in case titled as "Kurukshetra Sena" 2011 Cr.LJ 2493 (CHH) that where evidence showed that the appellants were having definite knowledge of fake currency notes which were in their possession, they would be liable to be convicted under Section 489B and 489C IPC of the Code. Suspicion whether notes were genuine will not amounts to sufficient cause to believe. The word 'believed' is a very much stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the note with which he was dealing was a forged one and it was not sufficient to show that accused was careless or he has reason to suspect or that he did not make sufficient inquiry to ascertain the fact. When, therefore, a person in the usual course of business gets a currency note which he finds to be suspicious and tried to get rid of it, he would not be guilty either under Section 489B or 489C IPC. Similar observations have been made in case titled as "Hamid Ali" AIR 1961 trip 46.
27. In another case titled as "Mammutti M." AIR 1979 SC 1705, it has been observed that presumption of knowledge from mere possession can only be drawn if the notes were apparently counterfeit. If, SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.17/32 the notes were not of such nature, then order of conviction is quashed. Therefore, the prosecution would succeed not only when the evidence is placed on record to show that the accused had knowledge about the currency notes being forged or counterfeit notes, but it will also succeed if the circumstances are brought on record, irresistibly and clearly leading to an inference that the accused has reason to believe that the currency notes found in his possession were forged or fake. The collateral circumstances, such as the bulk of fake currency notes, the mixture of fake currency notes, the palming of such notes quickly and the fact that accused, by no stretch of imagination could be said to be a lay man or an uneducated man, are sufficient to infer that the accused has reason to believe that the currency notes with him were fake or counterfeit. Similar observations have been made in "Abdul Fakirsaheb Mamtule" 2001 Cr.LJ 3396 (Bombay).
28. On the contrary, where there was no clear evidence which showed that the accused transacted the business with the party having known that the currency notes were fake and prima facie such currency notes did not appear to be counterfeit, the accused would be entitled to acquittal. It has been held in "State Vs. Rafiq Mohd." 2012 Cr.LJ (NOC) 323 (HP) (DB),.
Thus, apart from the essential ingredients of Section 489B IPC, SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.18/32 there are two other requirements which are required to be established by the prosecution, are, (a) the fake notes are appearing to be counterfeit, and (b) accused transacted the business with the party having known that the currency notes were fake.
29. The evidence led by prosecution, as mentioned above, is, therefore, analyzed in the light of above mentioned ingredients. So far as, the currency which is alleged to have been recovered from Arjun Sharma and Parma Shah is fake currency, has not been questioned by accused persons. The report with regard to the currency being fake, is placed on record, has not been disputed by any of the accused persons, nor there is any suggestion that any such thing was not recovered from their possession nor it is the case of accused Arjun Sharma or accused Parma Shah or any of the remaining accused nor it is alleged by any of the accused persons that the currency which was recovered from them was not fake or it was belonging to them and they were possessing the same without any knowledge or intention that it was 'fake / counterfeit currency'.
30. With regard to the first ingredient that the currency note or bank note in question was forged or counterfeit, therefore, there is no dispute. With regard to the second ingredient that accused had sold or SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.19/32 bought or received from some person or trafficked in or used as genuine such currency, the evidence led by the prosecution, in my considered opinion, do not seem to inspire the confidence of any of its witness. The reason for this presumption is that as per the story of prosecution itself accused Arjun Sharma and Parma Shah were held on the spot by PW-1 ASI Yashpal Singh and his associates / other police officials. It has not been said by any of the prosecution witness that such currency i.e. recovery of 199 notes in denomination of Rs.1000/- from accused Arjun Sharma and recovery of 302 notes in denomination of Rs.500/- from accused Parma Shah were sold or purchased or received from some person or they were being handed over or trafficked in or used as genuine by them. As per the story of prosecution and evidence led by its witnesses, itself speaks about that both these accused persons i.e. Arjun Sharma and Parma Shah were apprehended on the spot when they were pointed out by the secret informer that they were the persons who were carrying counterfeit currency. There is no evidence that any other person was found on the spot by the police team, i.e. PW-1 ASI Yashpal and his associates, who was either seller or purchaser or receiver of such currency.
31. It is needless to say that secret information received by police unless until is reduced into writing and takes the form of document and SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.20/32 also approved by higher police officials, cannot be said to be relevant as there is a provision as per the Indian Evidence Act, that any such secret information cannot be subject to examination on the point of its source or the person from whom it is received. In other words, any evidence which cannot be brought or corroborated, as per record, is not admissible as per the Indian Evidence Act. A special sanctity, however, has been assigned to such secret information or secret informer that any investigation conduct on the basis of such information, if supported with subsequent evidence and document, then it is relevant and admissible.
32. Proceeding further, as already stated above, as per the story of prosecution, when accused Arjun Sharma and Parma Shah were seen at Metro Gate no.1, New Delhi Railway Station, they were apprehended immediately. There is no other evidence available nor alleged by any of the prosecution witness nor it is the story of prosecution that any other person besides accused Arjun Sharma and Parma Shah were found at the spot to whom / from them, they had to sell or purchase or receive such fake currency. Thus, the most essential ingredient which is required to be established for Section 489B IPC is missing here and not established by any of the prosecution witness nor it is forming part of the story of prosecution as well. Therefore, as the most essential ingredient of Section 489B IPC is not present in the story of the prosecution itself, then SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.21/32 the charge under Section 489B IPC cannot stand against accused Arjun Sharma and Parma Shah. It is needless to say that disclosure statement of any of the accused persons including accused Arjun Sharma and Parma Shah, is not admissible in evidence unless until there is any recovery as per Section 27 of Indian Evidence Act. For the aspect of recovery, it shall be discussed under the second point of determination qua the charge under Section 489C IPC. In terms of these observations, the first point of determination is decided accordingly.
33. The second point of determination is:
(ii) Whether all the accused persons were found in possession of counterfeit currency knowing or having reason to believe to be forged or counterfeit and intending to use the same as genuine?
The charge so framed against all the accused persons is under Section 489C IPC which is pertaining to possession of forged or counterfeit currency. Section 489C IPC reads as under:
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 SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.22/32 genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. Essential ingredients of this section reads as under:
(a) The note must be a currency note or a bank note.
(b) Such note must have been forged or counterfeited.
(c) The accused must be in its possession.
(d) He must be knowing or must have reason to believe that the note was forged or counterfeited.
(d) He must have intended to use such note as genuine.
35. It is important to mention here that mere possession of forged or counterfeit notes is not an offence under Penal Code. Where the currency notes in possession of the accused are found to be of such a nature that a mere look at them would not convince any person of average intelligence that they are counterfeit notes, the presumption that the notes in his possession were counterfeit cannot be drawn. Similar observations have been made in case "Mammutti M."(supra).
36. Thus, in order to establish the liability of the accused, prosecution must prove that;
(a) The currency note or bank not in question was SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.23/32 forged or counterfeit.
(b) That the accused was in possession of it.
(c) That he at the time of his possession knew or had reason to believe that it was forged or counterfeited.
(d) That he intended to use a genuine or that it might be used as genuine.
37. The onus lies on the prosecution to prove circumstances which lead clearly indubitably and irresistibly to the inference that the accused had the intention to foist the notes on the public. Such intention can be proved by collateral circumstances, such as, that the accused has palmed off such notes before, or that he was in possession of such and similar notes in such large numbers that his possession for any other purpose is inexplicable. It has been observed in Bur Singh AIR 1931 Lah. 24.
38. It is a matter of record that there is no evidence available on record that all the accused persons had earlier palmed off such notes or they were in possession of such and similar notes in such large numbers. As per charge-sheet, the notes, which are stated to have been recovered from the possession of accused persons, are;
Accused Arjun Sharma - 199 notes of Rs.1000/- each. Accused Parma Shah - 302 notes of Rs.500/- each.
Accused Satender - 40 notes of Rs.500/- each.
Accused Nagina Prasad - 35 notes of Rs.1,000/- each. SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.24/32 Accused Bipin Pandey - 25 notes of Rs.1,000/- each.
39. The recovery of above mentioned notes, by any stretch of imagination, do not appear to be a huge quantity. Accused persons have disputed the recovery and their arrest as shown in the record. They have examined six witnesses in their defence. DW-1 is Prem Chand Singh who has stated that on 13.04.2013, he was on duty at Supriya Cinema and in his presence neither any quarrel took place nor any person was arrested. Nothing much beyond this has been stated by DW1. DW-1 has not named any of the accused persons. Thus, the testimony of this witness is confusing in itself.
40. DW-2 is Trilok Chand who has deposed regarding arrest of accused Satender. It is stated that accused Satender has been arrested from Railway Station, Faridabad. It is further stated by DW-2 that accused Satender was arrested in his presence but nothing was recovered from him. During his cross-examination, DW-2, however, has stated that he has not made any complaint to any Senior Police official or any other Authority.
41. DW-3 is accused Bipin Pandey himself who has stated that on 13.04.2013, he had gone to Batia, Bihar and when he reached Chhawni Chowk, he saw that 4-5 persons in civil uniform had apprehended SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.25/32 accused Nagina Prasad. It is further stated by DW-3 that he was also falsely implicated in this case and nothing has been recovered from his possession. During cross-examination, however, DW-3 has been given all the relevant suggestions which had been denied by him.
42. DW-4 is Dr. Diwakar Prasad who again, though has been examined as defence witness but has not been able to throw much light in the present facts and circumstances. It has been merely stated by DW- 4 that accused Arjun Sharma got fractured his hand and leg in February 2013 and he was treated by him. The present matter pertains to March 2013, however. Thus, testimony of DW-4 is not of much help to the accused persons.
43. DW-5 Anang Pal Singh and DW-6 Ct. Praveen Yadav are the relevant witnesses examined by the accused persons in their defence, however, they have deposed that fake currency was recovered from accused Arjun Sharma and Parma Shah. These witnesses have not been cross-examined by the prosecution. The prosecution, however, has been alleging since the beginning that recovery of fake currency, as mentioned above, has been made from accused Arjun Sharma and accused Parma Shah.
44. Now, coming to the essential ingredients of Section 489C IPC, SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.26/32 the first requirement is that there is a currency note or a bank note and it is forged or counterfeit. In this regard, the report regarding the currency being counterfeit is filed on record which is Ex.P-1. This report has not been disputed by all the accused persons during trial. As per the report, the currency which is stated to have been recovered from the accused persons is 'fake currency'. Now, coming to the other aspect i.e. recovery of fake currency from accused persons, in this regard, all the prosecution witnesses i.e. PW-1, PW-5, PW-6, PW-7 and PW-8 have stated that fake currency notes have been recovered from the possession of accused persons.
45. It is a matter of record that during prosecution evidence, two witnesses i.e. Ct. Anang Pal and Ct. Salimuddin were cited as witnesses as per list of witness, however, their role being similar to other witnesses who have been examined as per record, therefore, they were dropped and were not examined as prosecution witnesses. These two witnesses, however, have been summoned by the accused persons as their defence witness as DW-5 and DW-6. These witnesses have also supported the story of prosecution that recovery of fake currency has been made from accused Arjun Sharma and Parma Shah. This is nothing but corroboration of the facts alleged by both, prosecution and defence witnesses. SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.27/32
46. With regard to recovery of fake currency from other accused Bipin Pandey, Nagina Prasad and Satender, though, there is disclosure statement of all the accused persons, however, as per Section 27 of Indian Evidence Act, any recovery which is in pertinent to any statement made to the Police, is admissible only to the extent of such recovery. Similar are the facts and circumstances of the present case. The disclosure statement of any of the accused persons is not admissible in evidence, however, if it is leading to recovery, which has in fact, taken place as stated by all the prosecution witnesses, then it is relevant and admissible to that extent. From the testimonies of prosecution witnesses as well as defence witnesses i.e. PW-5 and PW-6, I am of the considered opinion that prosecution has been successful in establishing the fact that recovery of fake currency has been made at the instance or from the accused persons.
47. Now, coming to the last and most important ingredient of Section 489C IPC i.e. accused is having knowledge or have reason to believe that currency was fake and he had intended to use such currency note as genuine. Ld. Addl. PP for the State has submitted that if someone consciously receives such counterfeit currency from another person, and carries with it to pass it on to some other person to circulate it or selling it, then his conduct is such that he is having requisite knowledge of SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.28/32 currency being fake or counterfeit. It is further stated by prosecution that such conduct of accused Arjun Sharma and Parma Shah that they were found with fake currencies in itself implies that they were having knowledge that they were dealing with or having the possession of fake currency. Ld. Addl. PP for the State has relied upon the following judgments in support of his contention:
(a) Shabbir Sheikh & Ors. Vs. State of Madhya Pradesh Crl. Appl. nos.162,452 and 453/2015 Decided on 10.05.2018 by the Hon'ble High Court of Madhya Pradesh (Jabalpur Bench).
(b) Anis & Ors. Vs. State of NCT of Delhi Crl.A. 1059/2006 & 20/2007 Decided on 16.12.2009 by the Hon'ble High Court of Delhi.
It has been held in these cases that mens rea which are the essential ingredients to constitute the offence, under Section 489B and 489C IPC have to be proved by the prosecution. However, if the conduct of accused is suspicious, and he is not able to furnish any reasonable explanation, then he is presumed to have such knowledge.
48. It has been argued from the side of accused persons that no such recovery, as alleged by prosecution, has been made from them. The SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.29/32 witnesses examined by accused persons in their defence, i.e. DW-5 and DW-6, however, tells a different story. These witness, as already stated above, have supported the story of prosecution. What else, in my considered opinion, could be a better corroboration than this. Thus, to my mind, there is nothing available on the record from the side of accused persons which could counter this fact that accused persons were not having any such knowledge that the currency was counterfeit or fake. More so, after going through the statement of accused persons, so recorded under Section 313 Cr.PC, not much explanation has been furnished in their defence from their side and all the answers given by them, are mechanical.
49. Section 106 of Indian Evidence Act provides for provision that if any fact is within the specialized knowledge of a person, then burden is upon such person to prove the same and if, it is not established, then presumption shall be contrary. In this regard reference can also be laid upon a landmark titled as "Surender Prasad Vs. State" 2014 [1] JCC 569, in which it has been held that;
"Last seen evidence is also one of the species of the circumstantial evidence Last seen evidence as per Part III Section 7 of the Evidence Act, 1872 is relevant evidence against the accused Prosecution has to SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.30/32 prove two things, accused was seen alone in the company of deceased and at a place where no other person is expected to interfere Once this is proved the burden of proof under Section 106 Evidence Act falls upon the prosecution to prove the above element and it is only after the prosecution successfully prove them that the burden shifts on the accused to prove his defence Where in a case there is a long gap and possibility of any other person coming in between exists, the reliability itself on this piece of evidence becomes difficult and before placing any reliance the Court must satisfy itself by other positive evidence to conclude that there was no possibility of any other person entering into such a gap."
50. In the light of above discussion, it is reflected and I am of the considered opinion that, all the accused persons were having sufficient knowledge that the currency notes which are stated to have been recovered from their possession, are admissible as recovery as under Section 27 Indian Evidence Act and they were having sufficient knowledge that the currency notes were fake. Hence, charge under Section 489C IPC stands established against all the accused SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.31/32 persons.
Conclusion:
51. Prosecution has been able to establish its case against all the accused persons under Section 489C IPC beyond reasonable doubt and all the accused persons namely Arjun Sharma, Parma Shah, Satender Singh, Nagina Prasad and Bipin Pandey are therefore, convicted under Section 489C IPC. Accused Arjun Sharma and Parma Shah, however, are acquitted under Section 489B IPC.
52. Order on sentence shall be pronounced separately. Digitally signed by
PRASHANT PRASHANT KUMAR
KUMAR Date: 2018.10.25
15:02:31 +0530
Announced in the open court (PRASHANT KUMAR)
on 22nd day of October 2018 ASJ/ Central District
Tis Hazari Court/Delhi
SC no.:28222/16 State Vs. Arjun Sharma & Ors Page no.32/32