Chattisgarh High Court
Reman Alias Raman vs State Of Chhattisgarh on 8 September, 2008
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No. 607 of 2008
Criminal Appeal No. 671 of 2008
Criminal Appeal No. 712 of 2008
Criminal Appeal No. 633 of 2008
1. Reman alias Raman
2. Uttam
3. Ajay Dubey son of Prakash
4. Dayanand
5. Mukesh Tiwari
6. Ballu alias Balram
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
! Shri G.S. Ahluwalia counsel for the appellants
Shri Mirza Hafeez counsel for the appellants.
Shri Ravindra Agrawal counsel for the appellant.
Shri Satish Verma counsel for the appellant.
^ Shri R.R. Sinha P.L. for the respondent/State.
Honble Mr.T.P.Sharma,J
Dated:08/09/2008
: Judgment
CRIMINAL APPEALS UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE
JUDGMENT
(8.9.2008) Since all the aforesaid appeals arise out of a common judgment dated 24.6.2009 passed by the Sessions Judge, Rajnandgaon in Sessions Trial No. 10/2008, they are disposed of by this common judgment.
2. These Criminal Appeals ( Cr.A. 607/2008, 671/2008, 712/2008 and 633/2008 ) are directed against the judgment of conviction and order of sentence dated 24.6.2008 passed by the Sessions Judge Rajnandgaon, in Sessions Trial No. 10/2008 whereby accused/appellants Dayanand alias Golu has been convicted for the offence punishable under section 489 (a), 489 (c) and 489 (d) of the Indian Penal code and sentenced to undergo rigorous imprisonment for five years and pay fine of Rs. 2000/- u/s 489 (a), to undergo rigorous imprisonment for three years and pay fine of Rs. 2000/- u/s 489 (c) and to undergo rigorous imprisonment for five years and pay fine of Rs. 2000/-. In default of payment of fine he shall undergo simple imprisonment for two months for each offence.
Accused/appellants Ajay Dubey and Mukesh Tiwari have been convicted under sections 489 (b) and 489 (c) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and pay fine of Rs. 2000/- each u/s 489 (b) and to undergo rigorous imprisonment for three years and pay fine of Rs. 2000/- each u/s 489 (c) of the Indian Penal Code. In default of payment of fine they shall undergo simple imprisonment for two months each on each count.
Accused/appellants Reman Mandekar, Uttam and Ballu alias Balram have been convicted under sections 489 (c) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 2000/-, in default of payment of fine to undergo simple imprisonment for two months each. Sentences imposed on all the accused/appellants shall run concurrently.
3. The judgment of the trial Court is challenged on the ground that without there being any credible and reliable evidence regarding the fact that the applicants were in possession of the fake or counterfeit currency notes having the knowledge that the currency notes which were counterfeit or fake, the trial Court had committed an illegality by conivicting and sentencing them as aforementioned.
4. The case of the prosecution in brief is that on 26.11.2007 when Investigating Officer Pramod Rusiya, Assistant Sub Inspector, District Crime Branch, Rajnandgaon, was on patrolling duty, he received an information that at village Bajrangapur Navagaon, accused/appellant Ajay Dubey was possessing counterfeit currency notes. He recorded the Rojnamcha Ex. P-30 and went to the spot i.e. village Bajrangpur Navagaon where he called Panch witnesses namely Kamlesh Dewangan (PW-3) and Gyaneshwar Mishra (PW-4). Accused/appellant Ajay Dubey informed him regarding the possession of Computer, Printer, Pencil, Watermark paper with accused/appellant Dayanand alias Golu. Counterfeit currency notes were in his possession and also in possession of accused/appellants Ballu alias Balram, Mukesh, Dayanand alias Golu, Reman and Uttam. Dehati Nalishi Ex. P-2A was recorded. Accused/appellant Ajay Dubey made disclosure statement about the possession of computer, printer, watermark paper, pencil with accused/appellant Dayanand alias Golu. Accused/appellants Dayanand, Mukesh, Ballu, Reman and Uttam were having counterfeit currency notes of 500 and 100 denominations in their shops vide Ex. P-3. On the basis of his disclosure statement he produced 10 counterfeit currency notes of 500 denomination and 46 counterfeit currency notes of 100 denomination. Same were recovered vide Ex. P-7. Accused/appellant Dayanand alias Golu made disclosure statement that he was in possession of computer, printer, pencil, counterfeit currency notes of 100 denomination. He also stated in the disclosure statement that accused/appellants Reman, Ajay Dubey and Uttam were also possessing counterfeit currency notes vide Ex. P-5. He produced 8 counterfeit currency notes of 100 denomination, L.G. monitor, CPU, Key board, printer, scanner, copier and mouse which were recovered vide Ex. P-9. Accused/appellant Reman made disclosure statement Ex. P-4 relating to 4 counterfeit currency notes of 500 denomination in his shop Ex. P-4. Investigating Officer Pramod Rusiya along with witnesses and accused Reman went to his shop at Gol Bazar, Khairagarh where he produced 4 counterfeit currency notes of 500 denomination which were recovered vide Ex. P-10. Accused/appellant Mukesh Tiwari made disclosure statement regarding possession of three counterfeit currency notes of 500 denomination and 25 counterfeit currency notes of 100 denomination vide Ex. P-3 and produced the same which recovered vide Ex. P-8. On the basis of disclosure statements of accused/appellant Ajay Dubey (Ex. P-3) and Dayanand alias Golu (Ex. P-5) he went to the house of accused/appellant Ballu at village Dhangaon where he produced two counterfeit currency notes of 500 denomination and 14 counterfeit currency notes of 100 denomination which were recovered vide Ex. P-11. On the basis of disclosure statement of accused/appellant Ajay Dubey and Dayanand Ex. P-3 and Ex. P-5 respectively, he went to the house of accused/appellant Uttam at Civil Lines, Khairagarh where he produced 12 counterfeit currency notes of 500 denomination.
5. All the accused/appellants were arrested vide arrest memos Ex. P-14 to Ex. P-19. Intimation of arrest was sent to the relatives of the accused persons vide Ex. P-23 to P-27. Investigating Officer issued notice Ex. P-22 to accused Dayanand alias Golu for production of receipt/bill for the instruments recovered from his possession. After recovery of counterfeit notes currency, Dehati Nalishi Ex. P-2A along with the documents was sent to Police Station, Kotwali through constable Tularam (PW-2) where FIR Ex. P-2 was recorded. Investigating Officer Pramod Rusia recorded Rojnamcha vide Ex. P-29 after return from the spot. Seized currency notes were sent to the Chief General Manager, State Bank of India, Main Branch, Rajnandgaon for examination on 1.12.2007 vide Ex. P-1 where B.N. Dhali (PW-1) opined that the said currency notes be sent to Reserve Bank of India for examination. Again on 6.12.2007 they were sent for examination to him and he opined that the currency notes appeared to be counterfeit and therefore, they were sent to Currency Note Press at Nasik vide Ex. P-20, receipt thereof is Ex. P-21 and after examination of the same by V.G. Maru the report Ex. P-28 was submitted in which he opined that all the currency notes were counterfeit and fake. After recording the statements of the witnesses under section 161 of the Code of Criminal Procedure and completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Rajnandgaon who in turn committed the case to the Court of Session, Rajnandgaon where he undertook the trial.
6. In order to prove the guilt of the accused/appellants the prosecution has examined as many as eight witnesses. Statements of the accused persons were recorded under section 313 of the Code of Criminal procedure in which they denied the circumstances appearing against them and stated that they are innocent and have been falsely implicated in the crime in question.
7. After hearing counsel for the parties and perusing the evidence adduced by them learned trial Court has convicted and sentenced the accused/appellants as mentioned above.
8. Heard counsel for the respective parties and perused the material available on record including the judgment impugned.
9. It is argued by the counsel for the accused/appellants that the prosecution has failed to adduce any evidence relating to the fact that the accused/appellants were having knowledge that the currency notes which they were possessing were the counterfeit and they were intending to use the same as genuine. It is further argued that no independent witness, not even the police officer has supported the case of the prosecution. B.N. Dhali (PW-1) who is a Bank Officer has specifically stated in his evidence that that currency notes were produced before him in a sealed packet on 1.11.2007 and 6.12.2007. In paragraph No. 5 this witness has specifically stated that one month and five days after 1.11.2007, the same currency notes were again produced before him. According to the case of the prosecution the incident took place on 26.11.2007 and prior to that day i.e. on 1.11.2007 it could not have been possible to produce the allegedly seized currency notes before the Bank Officer. It shows that the entire prosecution story is concocted one. It is argued that the conviction can rest on the sole testimony of the police officer but in such cases, strict scrutiny of the material available on record is required. In this case even the Police Officer has not complied the procedure prescribed and rather deviated from it. Therefore, the statement of the police officer being untrustworthy does not inspire confidence. It is further argued that the entire statement recorded under section 27 of the Evidence Act is not admissible and only relevant portion regarding discovery of fact is admissible. Reliance is placed on the decision of Supreme Court in the matter of Geejaganda Somiah V. State of Karnataka 1 in which it has been held that discovery of fact pursuant to statement gives some guarantee that information is true. Relevant portion reads as under:
"The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The Court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
10. Further reliance is placed on the decision of Supreme Court in the matter of Umashanker V. State of Chhattisgarh 2 in which it has been held that knowing or having reasons to believe that currency-notes or bank -notes are forged or counterfeit and buying or receiving from another person or otherwise trafficking in or using as genuine or 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 a mens rea. Further reliance is placed on the decision of Supreme Court in the matter of Bachan Singh and another v. The State of Punjab 3 in which it has been held that by joining two different pieces of two genuine currency notes, would not amount to counterfeiting. Further reliance is placed on the decision of High Court of Chhattisgarh in the matter of Dineshwar alias Munna V. State of C.G. 4 in which it has been held that for the failure on the part of the to prove that the counterfeit notes made by the appellant were resembling the genuine notes and the resemblance was such as might deceive a person and failure to establish that notes which were half printed on one side on a plain sheet of paper resembled the genuine currency notes in any manner, the accused persons are entitled for acquittal.
11. On the other hand learned counsel for the respondent/State supported the impugned judgment and submitted that accused/appellant Dayanand alias Golu was found in possession of instruments meant for preparation of counterfeit currency notes, computer, printer, scanner etc. All the accused persons were found in possession of the fake or counterfeit currency notes of 500 and 100 denomination. They did not offer any explanation as to how they got the same. He further argued that though the Panch witnesses have not supported the case of the prosecution yet they are not the stock witnesses. They have admitted their signatures over more than 15 documents and they have not stated whether they signed the said papers under fear or pressure of Police. Statement of the Investigating Officer is trust worthy inspires confidence. Pramod Rusia (PW-6) has specifically stated about the incident in detail which is sufficient to draw an inference that accused/appellants possessed the counterfeit currency notes with the intention to circulate them as genuine ones. As far as statement of B.N. Dhali (PW-
1) is concerned, he has stated that firstly the currency notes were sent to him on 1.11.2007 and thereafter on 6.12.2007. But in fact the document itself was prepared on 1.12.2007 by A.S. Thakur (PW-8) who has specifically stated in paragraph 7 of his evidence that he sent the currency notes to State Bank of India, Main Branch, Rajnandgaon on 1.12.2007 for examination and the date mentioned as 1.11.2007 is only a clerical error and it should have been written as 1.12.2007.
12. In order to prove the guilt of the accused/appellants the prosecution is required to establish the following essential ingredients:
(i) Accused/appellant Dayanand alias Golu counterfeited the currency notes resembling to the genuine ones and the resemblance was such that a person might be deceived thereby;
(ii) counterfeit currency notes were found in possession of the accused/appellants on the date of incident.
(iii) They were having the knowledge that the currency notes possessed by them were counterfeit ones;
(iv) They were possessing the counterfeit currency notes with an intention to circulate the same to be genuine.
13. It is not disputed by the counsel for the accused/appellants that the currency notes recovered from the accused/appellants were counterfeit and fake. B.N. Dhali (PW-
8) who was the Chief General Manager in the State Bank of India, Main Branch, Rajnandgaon has also stated that he examined the currency notes produced before him by ultraviolet machine and they were not found to be genuine vide Ex. P-1. Thereafter, they were sent to Currency Note Press, Nasik vide Ex. P-20 which were received thereby vide Ex. P-21. The said currency notes were examined by V.G. Maru, Class I Gazetted Officer who vide report Ex. P-28 opined that the currency notes of 500 and 100 denomination were counterfeit. He is a Class I Gazetted Officer posted in the Currency Note Press, Nasik and his report is admissible under sections 292 and 293 of the Code of Criminal Procedure and no formal proof is required. The evidence adduced on behalf of the prosecution to this effect establishes that the currency notes in question were examined and found to be counterfeit and fake.
14. As regards the possession of counterfeit currency notes with the accused/appellants, Pramod Rusia (PW-6) has categorically stated in his evidence that on 26.11.2007 at about 7 a.m. he received information from some informant that some persons were possessing fake currency notes at Bajrangpur Navagaon village. After recording Rojnamcha Ex. P- 30 he went to the spot where he called Kamlesh Dewangan (PW P-
3) and Gyaneshwar Mishra (PW-4). He called accused/appellant Ajay Dubey and took him into custody. On interrogation, accused/appellant Ajay Dubey made disclosure statement Ex. P- 3 that accused/appellants Dayanand alias Golu, Ballu, Mukesh Reman, Uttam and he himself were in possession of fake currency notes. Dehati Nalishi Ex. P-2A was recorded. On the basis of disclosure statement, accused Ajay Dubey produced 10 fake currency notes of 500 denomination and 46 fake currency notes of 100 denomination vide Ex. P-7. On the basis of information given by accused Ajay Dubey, he called accused/appellant Dayanand alias Golu and on interrogation he also made disclosure statement of possessionof LG monitor, scanner, printer, copier, pencil and fake currency notes with him. He also disclosed that accused/appellants Mukesh, Ballu, Reman and Uttam were also possessing fake currency notes vide Ex. P-5. On the basis of this disclosure statement, he produced three genuine currency notes of 500 denomination, LG monitor, CPU, printer, scanner, mouse and 8 fake currency notes of 100 denomination which were recovered under Ex. P-9. On the basis of disclosure statement of aforesaid two accused/appellants, this witness went to village Dhaneli along with the witnesses and called accused Mukesh Tiwari and took him into custody. On interrogation, he made disclosure statement that he was possessing three fake currency notes of 500 denomination and 25 fake currency notes of 100 denomination vide Ex. P-6 which were recovered vide Ex. P-8. He also stated that he went to Khairagarh along with witnesses, called accused Reman and took him into custody. On interrogation he made disclosure statement that he was having 4 fake currency notes of 500 denomination vide Ex. P-4 which were recovered on production vide Ex. P-10. This witness also stated that he called accused Uttgam who produced 12 fake currency notes of 500 denomination which were seized vide Ex. P-12 and Ex. P-13. Thereafter, he went to village Dhangaon along with witnesses and called accused/appellant Ballu who produced 2 fake currency notes of 500 denomination which were seized vide Ex. P-11.
15. Accused/appellants were arrested vide Ex. P-14 to P-19 and intimation to this effect was given to their relatives vide Ex. P-23 to P-26. He sent all the documents and currency notes to Police Station Kotwali, Rajnandgaon through constable Tularam and Rojnamcha was recorded. PW-3 Kamlesh Dewangan and PW-4 Gyaneshwar Mishra are the Panch witnesses. Both the Panch witnesses have stated that they are motorcycle mechanics and residents of Bajrangpur Navagaon village and they have signed the papers at the instance of Police. Gyaneshwar (PW-4) used to repair the motorcycles of the Police Officers and they have signed the papers at their instance. These witnesses have been declared hostile. In cross examination they have admitted their photographs attached to the documents. They have not stated anything that they are the stock witnesses or they signed more than 15 papers under threat or pressure of the Police. They are not new to the police as they used to repair their motorcycles and without any reason they signed the papers when they were so asked by the Police. Dealing with the identical provision under the NDPS Act in the matter of Ghasita Sahu V. State of Madhya Pradesh 5 the Apex Court has held that in the absence of any suggestion that they are the stock witnesses or they have signed the Panchnama under the fear or pressure of the police, their negative statement does not affect the credibility of the documents and statements of the other witnesses. In the matter of State of Rajasthan v. Udai Lal6 it has been held by the Apex Court that unless it is stated by the witnesses that they have put their signature on the documents after being put under terror or pressure or without their free consent, their evidence cannot be discarded.
16. Pramod Rusiya (PW-6) has specifically stated that at Bajrangpur Navagaon, he called Panch witnesses namely Kamlesh Dewangan (PW-3) and Gyaneshwar Mishra (PW-4) who are the residents of that village. These Panch witnesses have not stated anywhere that they are residents of the area within the jurisdiction of Anusuchit Jati Kalyan Thana but they have stated themselves to be the residents of Bajrangpur Navagaon. It reveals that when the Investigating Officer proceeded for the spot, Panch witnesses did not accompany him, they are not residents of the area near Anusuchit Jati Kalyan Thana. Pramod Rusiya (PW-6) has taken sufficient precaution by calling the Panch witnesses from the locality but they have not supported the case of the prosecution. In this circumstance, only the substantial statement of police officers remains for consideration. Evidence of Pramod Rusiya and other police officers cannot be discarded on the ground that they are police officers and interested in the outcome of the case. In the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra 7 it has been held by the Apex Court that witnesses being police officers does not by itself create a doubt about their creditworthiness if non examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under:
"Indeed all the five prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two Panch witnesses, which is supported by the report Ex. 24 filed by PW-4 P.I. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority because of the non examination of the Panch witnesses we find that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy."
In the matter of P.P. Beeran v. State of Kerala 8 it has been held by the Apex Court that the reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police.
17. In the instant case Pramod Rusia (PW-6) is a police officer who conducted the investigation. This witness proceeded for the spot after recording Rojnamcha and after taking into custody accused/appellants Ajay Dubey and Dayanand alias Golu they gave disclosure statements relating to possession of counterfeit currency notes with them vide Ex. P-3 and Ex. P-5. They also disclosed that accused Mukesh, Reman, Uttam and Ballu are also possessing counterfeit currency notes. On the basis of disclosure statements counterfeit currency notes were recovered from accused/appellants Ajay Dubey and Dayanand alias Golu vide Ex. P-6 and P-9. This witness has also stated that after taking accused Reman and Mukesh into custody he made inquiry to them. They gave disclosure statements regarding possession of counterfeit currency notes vide Ex. P-4 and P-6 and on the basis of that he recovered counterfeit currency notes from them vide Ex. P-8 and P-10. On the basis of disclosure statements of Ajay Dubey and Dayanand alias Golu (Ex. P-3 and P-5 respectively) he recovered counterfeit currency notes from accused/appellants Ballu and Uttam vide Ex. P-11, P-12 and P-13.
18. While dealing with the provisions of section 27 of the Evidence Act in the matter of Mohmed Inayatullah v. The State of Maharashtra 9 it has been held by the Apex Court that the prosecution is required to satisfy three conditions (a) discovery of fact albeit relevant facts in consequence of the information received from the person accused of an offence
(b) discovery of such fact must be deposed to and (iii) at the time of receipt of the information accused must be in police custody. The last but most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible.
19. In the present case constable Tularam (PW-2) was with Pramod Rusiya (PW-6) the investigating officer during search and seizure of the alleged counterfeit currency notes. He stated in paragraph No.2 relating to search and seizure conducted at Bajrangpur Navagaon village that they came to the Crime Branch and he lodged the FIR Ex. P-2. In his cross examination he has stated that he reached the police station Bajrangpur Navagaon at 14.30 hours but he has not specifically stated that he went to the house of other accused at Khairagarh along with Pramod Rusia. Defence has also not suggested anything relating to other accused. He has specifically stated that they proceeded for the spot at 8 a.m. and came back to police station half an hour thereafter. Khilwawan Kumar (PW-5) has stated in his evidence that he took to Reserve Bank of India for examination. He admitted in his cross examination that the packets were bearing sea of the Bank. All the six packets were kept in a big packet but no separate seal impression was put on that packet. He deposited six sealed packets in the Reserve Bank of India. A.S. Thakur PW-8, the sub inspector has specifically stated in his cross examination that he sent the fake currency notes for examination to the State Bank of India, Main Branch, Rajnandgaon on 1.12.2007 which is supported by document Ex. P-
1. B.N. Dhali (PW-1) has stated in his evidence that he examined the currency notes on 1.12.2007 and 6.12.2007. In his cross examination in paragraph No. 5 this witness has further stated that he examined the currency notes for the second time aftger one month and five days. Ex. P-1 is the letter dated 1.12.2007 after commission of the offence but in the letter dated 1.12.2007 B.N. Dhali has mentioned the date as 1.11.2007 and second time he mentioned the date as 6.12.2007. It appears that on the basis of the date mentioned by him in Ex. P-1 he has calculated the period and stated that he has examined the currency notes on 1.11.2007 and after one month and five days he examined the same for the second time. This mistake is a clerical mistake and on the basis of such mistake this witness has mentioned the date as 1.11.2007. Pramod Rusia (PW-6) has admitted in his cross examination in paragraph No. 25 that he has made correction in Ex. P-3 to Ex. P-6 in the figure "26" and he has offered the explanation that due to the ink being faint, he made the said correction. However, this witness has denied the suggestion that he has corrected the figures 22 to 26. Correction over these documents clearly indicates that he has corrected he figure "26" in Ex. P-2A at two places but below his signature there is uncorrected figure "26" and on the basis of this document FIR Ex. P-2 was recorded on 26.11.2007. FIR Ex. P-2 also bears correction of figure "26" at top but below the signature of this witness the uncorrected figure "26" is there. Ex. P-4 also bears correction at two places but in Ex. P-5 at the top figure "26" is uncorrected. It appears that this is merely a clerical error. Defence has not tried to elicit anything to show whether memorandum and seizure were recorded on 22.11.2007. He has also admitted that he has not informed the Police of Police Station Khairagarh while making search and seizure within their jurisdiction. He is the officer of Crime Branch of District Rajnandgaon and he is not required to inform in the police station within the district if he investigates some crime within the district. Defence has cross examined this witness but did not elicit anything that he has acted in a prejudicial manner or was having any enmity or interestedness against the accused/appellants or has he departed from the procedure prescribed. His conduct shows that he has followed the procedure prescribed for search and seizure by calling the witnesses Kamlesh and Gyaneshwar from the locality and recorded disclosure statements of the accused/appellants and seized the articles from their possession. However, they have not supported the case of the prosecution. They have also not stated anything to show as to under what circumstances they signed more than 14 papers without there being any pressure or fear. This shows that they are concealing the truth. In the absence of anay enmity or interestedness or departure from the procedure prescribed, his statement cannot be discarded. His statement is trustworthy and inspires confidence.
20. As regards question admissibility of the statements given by the accused/appellants and their disclosure statements, in the matter of Geejaganda Somiah (supra) and in the matter of Mohmed Inayutallah (supra) it has been held by the Apex Court "so much of the information as relates to discovery of fact" is admissible. In this case the accused/appellants have stated that they were in possession of counterfeit currency notes of 500 denomination. Accused/appellant Ajay Dubey and Dayanand alias Golu have also stated that the other accused persons namely Mukesh, Reman, Ballu and Uttam were also having counterfeit currency notes with them and later they were discovered from them. In accordance with section 27 of the Evidence Act facts discovered on the basis of their disclosure statements are the possesion of fake and counterfeit (Nakli) currency notes which is supported by the recovery from them on the basis of their disclosure statements from co-accused Uttam and Ballu alias Balram. Even otherwise, if some person made disclosure statements that he was having genuine currency notes it would not fall under the provisions of section 27 of the Evidence Act because it is a common knowledge that the person possesses the genuine currency notes in routine if the same is not related to any other crime. From the statement of Pramod Rusia (PW-6) it is evident that the accused/appellants made disclosure statements that they had the counterfeit currency notes and the same were recovered at their instance from them and also from co-accused Uttam and Ballu alias Balram.
21. The accused/appellants have denied the case of the prosecution. Prosecution has not adduced any evidence to the effect that accused/appellant Ajay Dubey counterfeited the currency notes and he was in possession of any instrument used in counterfeiting the currency notes. Computer and CPU were recovered from accused/appellant Dayanand which are used otherwise also. Unless the prosecution establishes that the computer and other instruments recovered from appellant Dayanand alias Golu are used only for counterfeiting the currency notes, his conviction under section 489 (a) 489 (d) of the Indian Penal Code is not sustainable. Prosecution has also not adduced any evidence to show that any of the accused/appellants has used the fake or counterfeit currency notes as genuine. Therefore, conviction under section 489 (b) of the IPC is not sustainable against any accused/appellant.
22. Mere possession of currency notes with the knowledge that they are counterfeit or fake currency notes is not sufficient to convict the accused/appellants under section 489 (c) of the IPC. Prosecution is required to prove that the appellants were possessing the counterfeit currency notes with the intent to use the same as genuine or it may be used as genuine. As held in the case of Umashankar v. State of Chhattisgarh (supra) the prosecution is required to prove mens rea on the part of the accused/appellants and in the absence of any specific question with regard to possession of fake currency notes, the accused are entitled for acquittal.
23. In he present case, specific question relating to possession of fake and counterfeit currency notes was put to the accused/appellants which they have denied. In this case the currency notes were not in casual possession of the accused/appellant which they had obtained in routine manner from any other person during the course of commercial transaction but were within their knowledge that they were counterfeit or fake currency notes. They have not stated anything that they were possessing the said currency notes for any other specific purpose or use the counterfeit currency notes found in possession of accused Ajay, Dayanand, Mukesh and Reman within their knowedge and counterfeit currency notes found in possession of Uttam and Balram were found with the knowledge of Ajay Dubey and Dayanand. These are the special facts within the knowledge of the appellants. They are required to explain in terms of section 106 of the Evidence Act that why they were possessing those counterfeit currency notes. In the absence of any such explanation the possession of counterfeit currency notes within their knowledge, it may safely be inferred that they were possessin the counterfeit currency notes knowing them to be so with the intention of using the same as genuine.Thus the facts of the case in the matter of Umashankar V. State of Chhattisgarh (supra) are distinguishable on facts.
24. In the absence of anya evidence for the offence punishable under sections 489 (a), 489 (b) and 489 (d) of the Act, conviction imposed on accused/appellant Dayanand alias Golu for the offence punishable under sections 489 (a) and 489 (d) of the IPC is not sustainable. Likewise, conviction imposed on accused/appellants Ajay Dubey and Mukesh Tiwari for the offence punishable under section 489 (b) of the IPC is not sustainable. But, conviction imposed on all the accused/appellants namely Ajay Dubey, Dayanand alias Golu, Reman, Uttam, Ballu alias Balram and Mukesh Tiwari for the offence punsinable under section 489 ( c ) of the IPC is sustainable in law.
25. As regards question of sentence, the offence committed by the accused/appellants is the offence against the symbol of sovereignty and affects the back bone of the commercial transaction which ultimately affects the governance of the country. The appellants have been sentenced by the trial Court to undergo rigorous imprisonment for three years and pay fine of Rs. 2000/- each. They do not deserve any sympathy by this Court.
26. For the forgoing reasons, Criminal Aappeals No. 671/2008 and Criminal Appeal No. 712/2008 are partly allowed. Conviction and sentence imposed on appellants Dayanand alias Golu under section 489 (a) and 489 (d) of the IPC and conviction and sentence under section 489 (b) of the IPC imposed on accused/appellants Ajay Dubey and Mukesh Tiwari are set aside. Conviction and sentence imposed on all the accused/appellants namely Ajay Dubey, Dayanand alias Golu, Reman, Uttam, Ballu alias Balram and Mukesh Tiwari for the offence punsinable under section 489 ( c ) of the IPC are maintained. Criminal Appeal No. 607/2008 and Criminal Appeal No. 633/2008 are dismissed. Fine amount, if any, deposited by accused/appellants Dayanand alias Golu, Ajay Dubey and Mukesh Tiwari for the offences under sections 489 (a), 489 (b) and 489 (d) of the IPC, be refunded to them.
JUDGE