Delhi District Court
State vs Riwayat Ali S/O Baysat Ali on 9 August, 2007
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IN THE COURT OF SH. RAJENDER KUMAR SHASTRI, ADDITIONAL
SESSIONS JUDGE : KARKARDOOMA COURTS: DELHI.
S. C. no.111/06
FIR No.296/99
U/s 489-B/489-C IPC
PS Seemapuri
State Vs Riwayat Ali s/o Baysat Ali
Pr:-Sh. A.K. Srivastava, APP for State.
Accused on bail with Sh. F.A. Benisrai advocate.
JUDGMENT
1. For better appreciation of evidence, may I recapitulate the case of prosecution as under:-
On 19.9.99 HC Jai Prakash was patrolling in the area. At about 6.45 P.M., when he was near Apsara border, a secret informer told that one Riwayat Ali (the accused) who was dealing in fake currency notes will come near post office Jhilmil industrial area to deliver fake currency notes to some of his customers. A raiding party was formed and accused was apprehended along with fifteen fake currency notes of Rs. 100/- each denomination.
2. The accused was charged by this court on 03.1.04 for the offence of keeping in possession fifteen forged / counterfeit currency notes of Rs. 100/- each, knowing that the same were forged / counterfeit and intending to use the same as genuine i.e offence punishable u/s 489-B and 489-C IPC. The accused pleaded not guilty and claimed trial after hearing the charge.
3. In order to bring around its case, prosecution examined five witnesses in total. The accused in his statement u/s 313 Cr PC when incriminating evidence on record was put to him, alleged the same as incorrect. As per latter, he was lifted by police from his house at the 2 instance of some local property dealer and was falsely implicated in this case. The accused examined one Shakeel Ahmad as Dw1 in support of his plea.
4. I heard Ld APP as well as ld counsel appearing on behalf of accused.
5. The complainant SI Dheeraj tautologised the story as disclosed by him in his complaint Ex.Pw1/B when he was examined in court as Pw1. It is deposed on oath by this witness as:-
On 19.9.99, I along with HC Jai Prakash was patrolling in the area. At about 6.45 P.M. when we were near Apsara border, an informer met us and gave information to me that one Riwayat Ali r/o Jagat Puri who is indulged in the business of fake currency notes would come at about 7.00 P.M. on a scooter bearing no. RJ- 01-4M 4748 at Post Office, Jhilmil Industrial area to deliver fake currency notes to someone. On this information, I requested 4-5 passers-by persons to join raiding party but none agreed.
On the way, Ct. Girish Kumar met me at Jhilmil Industrial area sonia camp. We all accompanied by the informer reached near said post office. At about 6.55 P.M., accused present in court came there on his two wheeler scooter. Informer pointed out towards him. The accused sat on his scooter for about 10-15 minutes and as soon as he started his scooter to leave that place, he was apprehended by me with the help of staff. I took his personal search and fifteen currency notes were recovered from kurta of his pathani suit which were kept by him in a polythene packet. The currency notes, on being checked appeared fake at first instance. All those notes were kept by me in the same polythene packet and converted into a 3 parcel after sealing with the seal of DS. Same were seized vide seizure memo Ex. Pw1/A. I prepared ruqqa Ex. Pw1/B and got FIR in this case registered. I seized two wheeler scooter vide seizure memo Ex. Pw1/E and accused was arrested.
6. HC Jai Parkash (Pw2) and Ct. Girish Kumar who are stated to be other members of raiding party also corroborated the recovery of fifteen such currency notes from the possession of accused.
7. ASI S.N Sharma (Pw3) was duty officer in PS Seema puri on 19.9.99 and deposed about registration of FIR in this case Ex. Pw1/C on a ruqqa Ex. Pw1/B sent by SI Dheeraj through Ct. Girish Kumar. SI Ram Kishore (Pw5) told about search of a house bearing no. 261, Aram park, Shastri Nagar, Geeta Colony but no incriminating material was found there. Search memo in this regard is Ex.Pw1/J.
8. Shakeel Ahmad (Dw1) stated about lifting of accused Riwayat Ali from a Tea stall on 19.9.99 between 3.15 -3.30 P.M.
9. At the outset, ld defence counsel opposed the accused having been indicted for offence punishable u/s 489-B and 489-C of IPC, contending that, criminal intention is the crux of aforesaid provisions and for the sake of argument, even if it is presumed that such fake currency notes were recovered from the possession of accused, there is no evidence to establish that accused had intended to use such fake currency and mere possession of fake currency was no offence. Ld counsel cited a case titled as State (Delhi Administration) Vs Pawan Kumar Garg 1986 (1) Recent Criminal Reports 142 where prosecution failed to prove that the accused knew or had reason to believe that currency was counterfeit and he intended to use the same as genuine. In such circumstances, our own High Court found the case of prosecution as doubtful.
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10. Ld. counsel also assailed the investigation of this case on following counts:-
(i) SI Dheeraj who is stated to have received secret information should not have investigated this case and when the complainant has become IO himself, it vitiated the very trial of this case. Ld defence counsel has also strong apprehension about SI Dheeraj having falsely implicated the accused in this case. Ld counsel referred a case titled as Bhagwan Singh Vs State of Rajasthan AIR 1976 Supreme Court
985. In this case HC Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant. In this case he was the informant or complainant who lodged First information report for taking action against the appellant. It was held by the apex court that in those circumstances it was difficult to understand how HC Ram Singh would undertake investigation of the case.
Similar observations were made by Madras HIgh Court in case S. Chandran Vs State 2001 (3) Recent Criminal Reports (Criminal) 203.
(ii) No independent witness (public witness) was joined by the IO despite having opportunity to join the same. Ld counsel placed reliance upon a case titled as Mohd. Raffique Vs State 2000 II AD (Cr.) DHC 365. Our own High Court in this case found certain omissions in the personal search memo regarding recovery of contraband from appellant and no public witness was joined during investigation, prosecution case was based solely on the testimony of police officials. In these circumstances, the conviction of appellant was set aside.
(iii) Ld counsel pointed out that FIR no. was mentioned on the seizure memo which shows that FIR had already been registered before the recovery of alleged fake currency notes from the possession of 5 accused. In the opinion of Ld counsel, it shows falseness of case. A case titled as Mewa Ram Vs State 2000 (2) JCC 430 is referred here. The number of FIR was given on the top of seizure memo, search memo and special report allegedly prepared on the spot and no explanation was given by prosecution as how and under what circumstances number of FIR had appeared on the top of aforesaid documents. It was held by our own High Court that it seriously reflects upon the veracity of the prosecution version.
(iv) Scooter not produced in court.
11. Referring all these lacunas in the investigation of this case, it is contended by ld counsel that there remains still doubt about recovery of such currency notes from the possession of accused and hence same is entitled for acquittal, taking benefit of doubt.
12. There is no dispute over the precedents established by the apex court and our own High Court as referred by ld defence counsel above. It is also true that mens rea (guilty intention) is essence of offence for which accused in this case has been charged. The words 'knowing or having reason to believe the same to be forged or counterfeit' used in section 489 B and 489 C IPC exposes the mind of legislature in this regard. May I also refer here a case titled as Uma Shankar Vs State of Chhattisgarh 2002 SCC (Cri.) 758 where it was held that without mens rea, selling, buying or receiving from another person or otherwise trafficking in or using as genuine, forged or counterfeit currency notes or bank notes, is not enough to constitute offence under section 489 B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case under section 489-C in the absence of the mens rea.
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13. But the polemic question to be answered here is as to whether the accused in this case was found keeping in possession aforementioned currency notes knowingly or whether same could have been presumed to have knowledge about the fact that currency notes held by him were counterfeit / fake. Only circumstances of that time can tell about this fact.
14. If testimony of SI Dheeraj (Pw1), HC Jai Prakash (Pw2) and Ct. Girish Kumar (Pw4) are taken as true at this stage, fifteen currency notes of Rs. 100/- each were recovered from the person of accused. These currency notes were apparently fake as two notes were bearing same number i.e IHW 130641, ten currency notes were having same number i.e IHW 130642 and three currency notes were having same number i.e IHW 130643. It was not a small quantity which accused would have received in daily transactions unaware of its fakeness. When a person is found in possession of something, it can be presumed that same is cautious about the identity / nature of things he possess, unless he proves it otherwise. Though it is argued by Ld defence counsel that the accused would have received those notes from anyone unaware of their genuineness. No explanation is given as from where the accused had got these currency notes. Keeping of mum by the accused in this regard hints towards his acceptance of cautious possession. In this way I have no hesitation to presume that accused had every reason to know about the genuineness of currency notes which he was having with him. The fact that accused parked his scooter near said post office, remained standing there as he was waiting for someone and after wait for sometime he started going away. Such veiled activity also raises doubt about some hidden bad intention on his part.
15. So far as the defects in investigation of this case are concerned, it is true that the complainant should not investigate the 7 case. As per 'The concise Oxford Dictionary of Current English, 1990' to complain is :-
(i) to express dissatisfaction; (ii) to announce that one is suffering from (an ailment);
(iii) to state a grievance concerning (complained of the delay);
(iv) to make mournful sound; groan, creak under a strain;
16. If we turn to the facts of this case, SI Dheeraj (Pw1) got an information about accused being in possession of counterfeit currency notes which was an offence under the law of land. Being a senior police, officer it was duty of Pw1 to take action immediately after booking the offender and same he did by apprehending accused and giving information to police station asking for registration of the case. In this way, SI Dheeraj Singh had merely brought law into motion by booking an offender otherwise he was not aggrieved or sufferer due to aforestated actus of accused. He was not a complainant in the strict sense of terminology if aforesaid definition of complain / complainant is true. Such a police officer could be termed as an informer though designated as a complainant in this case for the sake of convenient identification.
17. Even otherwise, it is well settled that the precedent established by higher courts are applicable only in exact similar facts of the case and in Bhagwan Singh's case (Supra) HC Ram Singh was a person to whom the offer of bribe was allegedly made by the appellant. Such a person could be designated as an interested in seeing conviction of an offender and hence he should not have acted as investigating officer of a case but in case in hands involvement of SI Dheeraj Singh was not coated by self interest so that he could be termed as 'aggrieved' and hence complainant.
18. About joining of public person (independent witness) at the time of recovery of such currency notes, it is disclosed by SI Dheeraj 8 (Pw1) that after receipt of information, he requested 4-5 passer-by persons to join raiding party but none agreed. This fact found corroboration from the statement of HC Jai Prakash (Pw2) who reminded IO having asked 3-4 persons to join them. There is no gainsaying that in such a circumstance, SI Dheeraj was empowered to take action against such refusing persons, refusal in this regard being an offence and that no such proceeding was initiated by said police officer. May I revert to the deposition of Pw1 who told that he had received a secret information at about 6.45 PM when he was near Apsara border. The informer had disclosed about planning of accused who was scheduled to deliver fake currency notes at post office jhilmil industrial area, at 7.00 PM. In this way, the police had only 15 minutes to reach there. If IO had indulged in the proceedings to book those passer-by persons who refused to join raiding party, there was every chance to miss the opportunity to nab a bigger culprit. It is stark reality that hardly any laity in our society prefers to be a witness in such incidents, what so ever may be the reason. Keeping in mind all these facts, I think it will not be just to let off an accused of such a grave offence on this score alone, ignoring all other evidence on record against him. It has been held by the apex court time and again that police officers like other state functionaries are expected to act impartially in the discharge of their functions. Same can be believed to be true in the same way as other witnesses. Shorn of citing a bevy of authorities, may I refer few cases on this point like State of Assam Vs Muhim Barkataki AIR 1987 SC 98 where it was observed by their Lord-ships of the Supreme Court that evidence of police officer cannot be underestimated merely because he is a police officer. The apex court in case Hazari Lal Vs State (Delhi Administration) AIR 1983 SC 873 had gone to the extent of saying 9 that evidence of a police officer laying trap, if found reliable can be accepted without corroboration.
19. It is not case of accused even that any of said three police officers had any enmity against him. No reason is explained as why the accused has been falsely implicated by the police in this case. I find no ground to discard the testimony of said police officers. No contradiction cropped up during cross examination of said witnesses.
20. Mentioning of FIR number on the seizure memo etc is not denied. Though it is explained by SI Dheeraj (Pw1) the IO of case himself that it (FIR no.) was written by him at spot on the seizure memo but later on i.e after registration of FIR.
21. True, the scooter of which accused is alleged to have reached at pointed place, was not produced in court. It is urged by ld APP that scooter was registered in the name one Mrs. Rajbala @ Rajni and it was released on superdari in favour of latter. During proceedings i.e at the time of evidence, a notice was issued by the court to superdar to produce said scooter in the court so that it could be put to the witnesses for identification. But notice could not be served as said superdar i.e Mrs. Rajbala was reported to have left given address and her whereabouts were not known. The said scooter would also not be traced by the police. In such circumstances for non production of such scooter, the accused cannot claim acquittal.
22. Considering the statements of PWs particularly SI Dheeraj (Pw1), HC Jai Prakash (Pw2) and Ct. Girish Kumar (Pw4) I think it is well established on file that it was accused who was found in cautious possession of 15 currency notes which were apparently fake / counterfeit. The notes of the case property when produced in court two notes were bearing same number i.e IHW 130641, ten currency notes were having same number i.e IHW 130642 and three currency notes 10 were having same number i.e IHW 130643. There is no evidence on record to prove that the accused was selling or otherwise trafficking in such fake currency notes.
23. I do not agree with ld defence counsel alleging that a reasonable doubt remains upon the prosecution story about recovery of such fake notes from the possession of accused. For an accused to be entitled for the benefit of such doubt, the doubt should be reasonable. Mejudice, the onus was upon the accused either by leading evidence or from the evidence led by the other party i.e prosecution to establish that there remained doubt and that reasonable upon the prosecution story. The apex court observed in a case Inder Singh and another Vs State (Delhi Administration) AIR 1978 SC 1091 that a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. Nothing is pointed out in this case which could create such a doubt, about recovery of fake currency from accused.
24. As pointed out earlier, Sh. Shakeel Ahmad was examined by accused in his defence. It is stated by said witness that accused was lifted by the police from a Tea stall on 19.9.99 between 3.15-3.30 PM. This witness never appeared before the police or gave statement during investigation of the case. It is not the case of accused. Even that police did not examine said witness deliberately. No ever complaint was lodged by Shakeel Ahmad alleging that he was not examined by the police during investigation of this case. When a person remained never in- touch with the police or court during investigation of the case but emerged suddenly at the fag end of the case, does not appear reliable.
25. Due to reasons given above, the accused is convicted for offence punishable u/s 489-C IPC and is acquitted for the charge of 11 offence punishable u/s 489-B IPC.
Announced in the open court today (Rajender Kumar Shastri) i.e on 9th day of August, 2007. Additional Sessions Judge, Karkardooma Courts, Delhi.