Bangalore District Court
Commercial Street Police vs Jabeer Shariefff on 15 June, 2015
57th Addl.City Civil and Sessions Court
MAYOHALL UNIT, BANGALORE.
Present: Smt. B.S.REKHA, B.A.,(Law), LL.B.,
57th ACCJ & SJ
Mayohall Unit, Bangalore.
Dated this the 15th day of June 2015
SC NO:1038-2009
Complainant: Commercial Street Police
Station, Bangalore.
(By Public Prosecutor)
Vs.
Accused:- 1. Jabeer Shariefff
S/O.Abdul Mazeed
31 Yrs, No.51, 8th Cross,
11th Main, HBR Layout,
Bangalore.
2. Sridhar S/O.Bheemsen,
24 Yrs, No.35, Shirke
Apartments,Kengeri
Upanagara, Bangalore.
2 S.C. No.1038/2009
3. Pulakeshi S/O.Sangana
Basappa, 42 Yrs, No.19-1,
1st Cross, 1st Main,
Karagappa Garden,S.R.Nagar,
Bangalore.
4. Suresh S/O.Hanumanthasa
48 Yrs, No.29, Siddanna Galli,
Kabbanpet,Bangalore.
5. Mohammed Jakir S/O.Noor
Ulla Uda, 26 yrs, No.363-2,
11th Cross,Pillanna Garden,
3rd Stage,Bangalore.
TABULATION OF THE EVENTS
01.Date of Commission of offence:28-4-09
02.Date of report of offence: 28-4-09
03.Date of arrest of accused: No.1 to 4 on
28-4-2012, Accused No.5 on 1.5.2009
04.Date of release of accused from
JUDICIAL CUSTODY: A-1 on 22.8.09,
A-2 on 28.7.2009, A-5 on 30.9.2009,A-4
on 11.12.09, A-3 on 26.12.2009.
05.Name of the complainant : Chandan
Gopal ,PSI
3 S.C. No.1038/2009
06.Nature of offence complained :
U/S 489(A),(B),(C),(E), 120 (B) of IPC.
07.Date of commencement of recording
evidence: 20.6.2011
08.Date of closing of recording of evidence:
4.3.2015.
09.Date of judgment: 15.06.2015
10.Opinion of the Judge : Found guilty.
JUDGMENT
The charge sheet is submitted by the Police Inspector, Commercial Street Police Station against this accused for the offences punishable under Sec.489(A),(B),(C),(E), and 120 (B) of IPC.
2. The brief facts of the prosecution case is that on 28.4.2009 at 7.00 PM in the limits of Commercial Street Police Station near RBANMS of Gangadhara Chetty Road, the Accused No.1 and 2 were found in Car No.KA 05 MF 8883 were found with the Fake Currency Notes and on their information A-3 4 S.C. No.1038/2009 was arrested and on his information A-4 was arrested on 29.4.2009 who was alleged to be in possession of Xerox Machine and A-5 was involved and they were manufacturing circulating the Fake Currency Notes with conspiracy and there by committed the aforesaid offences.
3. After receipt of the complaint, Commercial Street police registered the case in crime No: 82/2009 for the offences punishable under Sec. 489(A),(B),(C),(E), 120 (B) of IPC and FIR sent to the jurisdictional court i.e. XI Addl.Chief Metropolitan Magistrate, Mayo Hall, Bangalore City. After submission of the charge sheet, the XI Addl.Chief Metropolitan Magistrate Court complied with the procedure, ie.. provided under Sec.207 of the Cr.P.C and copy of the charge sheet was furnished to the accused 5 S.C. No.1038/2009 and as the offences punishable under sections 489(A),(B),(C),(E), 120 (B) of IPC which are exclusively triable by this court, XI ACMM court has committed the case to this court vide order dated 26/10/2009.
4. The Hon'ble Principal City Civil and Sessions Judge, Bangalore City, on receipt of records from the learned XI th ACMM, Bangalore, registered a case in S.C. 1038/2009, made over the same to this Court for disposal as per law.
5. This Court has framed the charge against the accused No.1 to 5 for the offences punishable u/s 489(A),(B),(C),(E), 120 (B) of IPC. The accused pleaded not guilty and claims to be tried. ;'
6. The prosecution to prove the guilt of the accused No.1 to 5 has examined Pw.s 1 to 14 and got marked Ex. P1 to P21.
6 S.C. No.1038/20097. After closing of the prosecution evidence case was posted for recording statement of the accused as provided under Sec.313 Cr.P.C and the statement was recorded. The defence has not lead any evidence.
8. Heard Public Prosecutor and also heard the learned counsel for the accused.
9. The following point does arise for my consideration is:
1. Whether the prosecution proves beyond reasonable doubt that on 28.4.2009 at 7.00 PM the accused no.1 to 5 with conspiracy were circulating the Fake Currency Notes in the limits of Commercial Street Police Station near RBANMS of Gangadhara Chetty Road, in order to gain money illegally and thereby 7 S.C. No.1038/2009 committed the offence punishable U/S 120 (B) of IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 5 in furtherance of their act have counterfeited the Fake Currency Notes and thereby committed the offence punishable U/S 489 (A) of IPC?
3. Whether the prosecution proves beyond the reasonable doubt that in furtherance of the act, the accused No.1 to 5 are circulating the Forged or Counterfeit Currency notes as genuine and thereby committed the offence punishable U/S 489 (B) of IPC?
4. Whether the prosecution proves beyond the reasonable doubt that in furtherance of the act, the 8 S.C. No.1038/2009 accused no.1 and 2 were in possession of Forged or Counterfeit Currency Notes of face value of Rs 500-00 and thereby committed the offence punishable U/S 489 ( C ) of IPC?
5. Whether the prosecution proves beyond reasonable doubt that in furtherance of the act, the accused no.3 was forging or counterfeiting by making the currency notes by using the Color Xerox Machine, Laser Machine, Cutting Machine and Black Sheets and Printing Materials in his house and thereby committed the offence punishable U/S 489 (D) of IPC?
6. Whether the prosecution proves beyond reasonable doubt that in 9 S.C. No.1038/2009 furtherance of the act, the accused are making or using the document resembling currency notes and there by committed the offence punishable U/S 489 (E) of IPC?
7. What order?
10. After heard the learned Public Prosecutor and the learned counsel for the accused and after going through the evidence of the witnesses, my answer to the above said points are as under:
Point No.1 : In the Affirmative, Point No.2 : In the Negative, Point No.3 : In the Affirmative, Point No.4 : In the Affirmative, Point No.5 : In the Affirmative, Point No.6 : In the Affirmative, 10 S.C. No.1038/2009 Point No.7 : As per final order, for the following:
REASONS.
11. In order to prove the case of the prosecution CW.2 Puttalingaiah ASI deposed as PW-I and stated that on 28.4.2009 at 6.40 pm when he was on station duty CW-I came to the police station and informed that some persons are using fake currency notes at Gangadhar Road of Commercial Street at RBAMNS in a Car and thereby requested him to co-operate to the raid. On his request when they went to the spot they found one Santro Car No.KA 01 MM 3888 and on his direction they surrounded the car arrested two persons who were sitting in the car. They told their names as Jabir and Sridhar. He identified 2nd accused and he had stated that he can identify accused no.1 also. On search of accused no.1 they found 4 notes Rs. one 11 S.C. No.1038/2009 thousand face value and mobile phone, 4 debit cards and driving license. On search of dash box they found A4 size sheets wherein Rs. five hundred face value notes were printed.
12. On search of 2nd accused they found 3 notes of Rs. five hundred face value and a slip containing debit card numbers and a phone. They came to know that in order to take Xerox print those notes were used. They have seized all those articles through Ex-P-1 mahazar. The intention of the accused was to take colour Xerox of the notes and to move in the market through Jabir and Shakir. He identified MO's 1 to 28 .
13. During the course of cross examination he had stated that himself CW-I along with the 5 persons left the station at 6.45 pm and reached at 7.00 pm in Hoysala Jeep. There were no shops at spot. They 12 S.C. No.1038/2009 called the Panch witnesses from the spot. CW-1 shown the vehicle from the distance of 100 ft. They have surrounded the car within 5 minutes. He cannot say the number of notes. He is not aware of the company name of the purse seized from the accused. According to him in the purse of the 1st accused there was a photo of a female and that person. However, MO-1 shows the photo of the woman. He is not aware of the particulars of debit and visa card. He is not aware of the mobile number. According to him the accused informed that they have circulated already five lakh worth fake notes in the market.
14. CW-2 J.Rajashekaraiah PC examined as PW-2 and stated in the same version of PW-1. However, during the course of cross examination he had stated that at the time of raid all the staffs were in the police station.
13 S.C. No.1038/2009There was no written directions given. They were 5 staff with 2 Panch persons. They went to spot by walk. He admits that it is a busy place. He saw the Car number at a distance of 20 meters. According to him the accused were attempted to ran away but he shown ignorance to the suggestion that there was no need to run from the spot because they were not in uniform. He does not remember who arrested which accused and the note numbers. He is not aware of the period of DL and particulars of the credit cards.
15. CW-11 Dilip examined as PW-3 had stated that he is running Xerox shop in J.C.Road at Arjun complex. According to him in the year 2008 one Suresh purchased old Cannon Colour Xerox Machine Model No.1120 for Rs. Forty Three Thousand. He told that he will get it repaired. However he is not having documents towards sale and 14 S.C. No.1038/2009 purchase. He identified the 4th accused and the photographs.
He is not having documents to show that he is running Xerox shop. He used to purchase old Xerox machines from the office and use to sell them. He admits that generally purchase receipts will be issued from the office. He shown ignorance about the persons from whom and in which year he purchased. According to him as he used that machine for many years he identified. He saw that machine in the police station. He is not aware of the manufacturing year. He is not having documents to show that he sold the machine to 4th accused and the 4th accused was visiting his shop. He admits that it is not possible to get 100% original prints in Xerox machine found in Ex-P-2 and
3. But it may 80 - 85% originality. According to him if the colour print is taken 15 S.C. No.1038/2009 in Xerox machine found in Ex-P 2 and 3 it will be mask finishing and it is not possible to take the prints in the Xerox machine found in Ex-P-2 and 3. He admits that if the notes are Xeroxed in these machines they will not look like original. He admits that it is only ordinary Xerox machine wherein only papers can be Xeroxed.
CW-13 Ramesh examined as PW-4 had stated that he was running the CD shop in Commercial plaza of Kamraj Road in 2009. DCP and PI came to his shop and thereafter went to the shop belongs to Pulakeshi and taken many CD's from that shop. Police informed that Pulakeshi and Sridhar are circulating fake currency notes. He is not aware that how many CD's are seized from that shop.
CW-14 Firoz Khan examined as PW-5 had stated that he was the manager in 16 S.C. No.1038/2009 Commercial Plaza and saw the accused no.2 and 3 who were running CD shops. On 29.4.2009 at 9.30 pm the police have inspected the shops belongs to accused no.2 and 3 and taken them. Police informed that they were printing fake notes. He is not aware of the shop number. They have not enquired any publics. He admits that he is deposing as instructed by the police. CW-1 Chandan Gopal PSI examined as PW-6 had stated that on 28.4.2009 when he was SHO he received intimation at 6.00 pm that some persons are circulating the fake currency notes near RPANMS field in Car No.KA 05 MF 8883. Thereafter he along with the staff and panch witnesses went to the spot in Hoysala. They observed the vehicle at the distance of 100 ft. After confirmation of the information he got CW-7 and 8 and informed incident and conducted the raid.
17 S.C. No.1038/2009They found accused Jabir and Sridhar. They arrested and found one purse with accused no.1 having 4 notes of one thousand face value which was tied with cello tape. 4 Credit Cards, 2 Debit Cards, Xerox Copy of the DL and 2 notes of Rs.100/- and Nokia N-73 Mobile was seized from 1st accused. They seized A4 sheet which was having 3 notes of Rs.500/-. On search of the 2nd accused they found one black purse containing 5 notes of Rs.500/- each, ATM Card and medical prescription. On enquiry with the accused they told that the notes were printed in the house of accused Suresh. They were doing business in counterfeit currency. They seized those articles with due mahazar. He had prepared report and submitted the same along with the accused to the I.O. Immediately after receipt of the information he had not registered the case. They have 18 S.C. No.1038/2009 not done personal search. He admits that the name of punch witness was not written in Ex.P.4. There is a distance of 1 km between the place of incident and the police station. He denied that he had submitted the report on the next day and hence, the FIR was sent subsequently. He obtained the panch witnesses at spot. He had not taken the signature of panch witnesses on MOs. He had not stated that the accused told that they were printing the fake notes in the house of accused No.4. There is no recital in the mahazar about the name of the scribe of mahazar.
C.W.10 Venkatesh examined as P.W.7 had categorically stated that about 3 years back when he went to Commercial Street for purchase of articles police called him to the station and obtained his signature on Ex.D.5.
19 S.C. No.1038/2009He turned hostile to the case of the prosecution about seizure.
C.W.19 M.Shankarappa, Scientific Officer, examined as P.W.8 had categorically stated that on 10.07.2009 Commercial Street police have sent 7 sealed articles and he tallied the seal and found 4 currency notes of Rs.1,000/- denomination. In item No.1 and 2 currency notes of Rs.1,000/- face value in 2nd cover 5 sheets containing printed notes in 3rd cover 3 notes of Rs.500/- face value in 4th cover, 63 notes of Rs.500/- face value in 5th cover, 60 A4 size sheets containing Rs.500/- face value printed and in 6th cover, 5 sheets of A4 size having printed Rs.500/- face value in 7th cover. On verification personally and through Government Press he opined that the notes in cover No.1, 2 and 4 are genuine and in the remaining covers are fake notes. He identified MOs 29 to 93. There was a seal as 20 S.C. No.1038/2009 KGG on the cover. He is not aware of the signature found on Exs.P.29 to 91. He used to put the seal after verification of the documents. He admits that the officials of RBI can certify about the notes. But they are also underwent the training. He had not taken permission from the RBI about scientific investigation. He had not given any opinion about the printed notes in A4 size. According to him, by scanning the original note MOs 29 to 91 were printed.
C.W.17 Raghunath examined as P.W.9 had categorically stated that he know the 4th accused. His shop is situated in CKC Garden. On 25.04.2009 Ramanna and 4th accused came to him along with one screen having Gandhi photo and requested him to print that photo on that screen as they want to put the screen on clothes. Thereafter, he exposed that Gandhi photo and taken 21 S.C. No.1038/2009 Rs.30/- as coolie. On 01.05.2009 the police came along with the 4th accused and he informed the same. He had also given tracing sheet which was seized by the police through mahazar. He identified Exs.P.6 and P.10. He used to do the screen printing in his house and he is not having any shop. He is not having any license. Usually, he used to print visiting cards. He cannot say the details of his customers. He is not having documents to show that 4th accused brought Ex.P.10 with him. Ex.P.10 is not the screen which was exposed and given to 4th accused. Accused themselves have brought Ex.P.10 to have exposed. However, he had not taken any signature. He had handed over Ex.P.10 which was with him. At the time of mahazar himself and police were there, but no independent persons were at spot. Police have not recorded his statement.
22 S.C. No.1038/2009C.W.16 Victor examined as P.W.10 who had categorically stated that he was working as Manager in High Gates Hotel Management, which is situated in Church Street. According to him, 5th accused was an employee as Receptionist/Front Office Executive for a period of 9 months, during the year 2008-2009. He identified Ex.P.11. He was a good employee during the appointment.
C.W.8 Javid examined as P.W.11 had categorically stated that he saw the accused about 3 to 4 years back in Commercial Street Police Station. He was called by the police as a witness in relation to circulation of fake notes. One Ibrahim was with him. Police took them to RBN playground at 7 p.m. and found one Santro Car. He had not observed the number of persons in that car. He had not seen the accused in that car. Police told 23 S.C. No.1038/2009 that they seized some fake currency notes in that car and shown 4 notes of Rs.1,000/- face value. He shown ignorance that with whom the police have seized. The police obtained signature to the mahazar. After putting seal to the notes his signature was obtained. Police have taken them to a house. But, these accused were not in that house. Police have seized printer Xerox machine and other articles. Police have obtained his signature on Ex.P.12. He does not remember about visit to Siddanna Galli. He admits that on 28.04.2009 police called him along with one Ibrahim and taken them to RBANMS field. He shown ignorance about the vehicle number. He shown ignorance that 1st accused was the Driver and 2nd accused was sitting in the front seat. He admits that M.Os.2 to 5 were seized. He denied about the seizure of other articles. He used to visit 24 S.C. No.1038/2009 Commercial Street Police Station frequently and he is aware of the police officers. Usually, he used to accompany the police. Ibrahim is his friend who used to visit the Police Station having some acquaintance with police officials. There were many cars near the field. He is not aware from which car which articles were seized. He is not aware that the police have recorded the statement of persons. He is not aware from whom those articles were recovered. He shown ignorance that the police have not seized any articles from accused No.1 to 4. The police have read over the contents of mahazar to him. He signed mahazar in police station. He also signed documents pertains to other cases also.
C.W.22 Badarinath, P.I., examined as P.W.12 had categorically stated that he sent the seized articles to FSL on 10.07.2009 and 25 S.C. No.1038/2009 recorded the statement of one Shivashankar. He received the report on 23.07.2009 and thereafter submitted charge sheet. He had seized the lease agreement. He admits that there is a gap of 3 months from the date of seizure till sending the articles to FSL.
C.W.10 Syed Ibrahim examined as P.W.13 had categorically stated that in April- 2009 at 7 p.m. Commercial Street police called him to Gangadhar Shetty Road. He found a Santro Car, wherein 2 persons were inside the car by name Jabir and Sreedhar. The persons attempted to ran away and thereafter, they were arrested. He identified accused No.2 and 5. According to him, on search of Jabir, they found 4 notes of Rs.1,000/-, 3 notes of Rs.500/-, 2 notes of Rs.1,000/-, 2 debit cards, Xerox copy of the DL. They found that one black purse, Rs.500/- face value note, and Rs.1,000/- face 26 S.C. No.1038/2009 value notes were seized from Sreedhar. The police have prepared mahazar at spot and taken the articles along with the accused. He identified the M.Os. According to him, Javid accompanied him, but he was not his friend. He used to sign the mahazar at particular spot. He is not aware of the door number of house of Suresh. The police have not taken the signature of inmates or neighbourers of the house. He cannot identify the seized notes. M.Os.29 to 91 were seized from the house of accused Suresh. He is not having specific identification with respect to those notes. He shown ignorance about the name of the scribe of mahazar. Now he is running furniture shop. Earlier he was having computer sales shop, which is near to the police station. He was aware of the police officer. He used to give printer service to Commercial Street, Cubbon Park, 27 S.C. No.1038/2009 Bharathinagar and other police station and he know all the police officers. He shown ignorance about the particulars of Javid. The car was parked in front of gate of the college campus. He went along with the police. He cannot say the car number. There were 5 to 6 police officials in that vehicle. They parked the vehicle at a distance of 10 feet from the Santro car. He admits that usually if the police vehicle comes the inmates of the vehicle will come out. He admits that usually every person will be having purse and amount. He admits that usually people will keep original notes. His signatures were not taken on the notes.
C.W.21 Mallesh, PSI, examined as P.W.14 had categorically stated that on 28.02.2009 at 9.15 p.m. another PSI Chandan Gopal had produced 2 persons along with the report and the property. He 28 S.C. No.1038/2009 registered the case and submitted FIR. He had arrested those accused and recorded their voluntary statement. On the voluntary statement of these accused he arrested another accused Pulakeshi at 10.30 a.m. After recording his voluntary statement they went to his house and recovered 2 frames having Gandhi photo. Thereafter, on the voluntary statement of 3rd accused they went to the house of another accused Suresh and recorded his voluntary statement. On the basis of the voluntary statement they have recovered Canon Colour Xerox Machine and Paper Cutter through mahazar Ex.P.12 and P.13. Thereafter, he brought those accused along with the property. On 30.04.2009 he arrested accused No.5 and recorded his voluntary statement, but he stated that on the request of Jabir he sent SMS towards purchase of air-ticket. Thereafter, a mobile 29 S.C. No.1038/2009 phone and printers were seized. On 02.05.2009 he called Raghunath to the police station and recorded his statement. Thereafter, he recorded the statement of witnesses Ibrahim, Javid, Maltesh, Venkatesh Kalburgi, and Dileep, Salman, Ramesh, Firoz Khan and handed over further investigation to Police Inspector. He identified the accused before court. He had not taken the signature of panch witnesses on the covers or printed sheets. He was the SHO on that day. He was not aware of the receipt of information by Chandan Gopal. Chandan Gopal had not given any information to register the FIR. He admits that if any cognizable offence is reported immediately FIR has to be registered. However, the present FIR reached the Magistrate on the next day evening. According to him, he sent the FIR on the same day. He admits that court PCs used to 30 S.C. No.1038/2009 visit the court regularly. There is a delay of 18 hours. He denied that they have concocted the case. The shops of Ibrahim and Javid are situated near by the police station. He denied that on their threat those two witnesses have signed the mahazar in the police station. They have sealed the notes. The notes before the court were not sealed. The photographs were taken in the police station. Ex.P.10 was also not sealed or packed. They have not taken the signatures of the inmates or neighbourers of the house of Suresh. The voluntary statements were written by Constable Swamy. He has not requested the accused to write the voluntary statement.
16. The matter to be proved by the prosecution against these accused is that there is conspiracy in circulating the fake notes under Section 120-B, counterfeiting the 31 S.C. No.1038/2009 currency notes under Section 489-A, using a genuine forged or counterfeit notes under Section 489-B, possession of forged counterfeit currency notes under Section 489-C and making or using documents resembling currency notes under Section 489-E against the accused persons. The main reliance of the prosecution is on the evidence of the witnesses examined before this court. The main witnesses examined on behalf of the prosecution are P.W.1 who is the ASI, P.W.2 PC, P.W.6 PSI Chandan Gopal, P.W.1 Javid independent witness, P.W.13 Syed Ibrahim is also an independent witness have categorically stated about the initiation of the proceedings by saying that on 28.02.2009 at 6.40 p.m. as per the information received by the complainant that somebody were circulating fake currency notes they went to the spot along with other 32 S.C. No.1038/2009 staff. There they found a Car No.KA-01 MM- 3888 according to P.W.1 and KA-05 MF 3338 according to P.W.2 and KA-05 MF 8883 according to P.W.6 and the other witnesses are not aware of the vehicle number. The main contention of these witnesses is that when they went to the spot they found Maruti Santro Car wherein two persons were inside the car; i.e., accused No.1 and 2. According to them one person was sitting in the driving seat; i.e., Javid and the other person was sitting by his side. These witnesses have stated about the recovery of 4 notes of Rs.1,000/- each from the 1st accused and 3 notes of Rs.500/- each from the 2nd accused. However, those notes are not fake notes even according to the prosecution. According to these witnesses when they searched the dash box in that car they found A4 size sheets, which contains the printed notes of Rs.500/-.
33 S.C. No.1038/2009The allegation of the prosecution is that these accused with the conspiracy were printing the notes from a colour Xerox machine and thereafter, they were circulating in the open market. It is alleged that for printing of the notes the person who was responsible was the accused No.4 who used to print the notes.
17. Before discussing about the other aspects, it is necessary to note what is counterfeit currency. For that it is necessary to look into the definition of counterfeit. Section 28 of IPC defines counterfeit as follows:
"A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced. Explanation (1) says it is not essential to 34 S.C. No.1038/2009 counterfeiting that the imitation should be exact.
Explanation (2) when a person causes one thing to resemble on another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced.
There is a comment on that particular definition; i.e., counterfeiting generally implies exact imitation."
18. This P.W.1 was unable to say the note numbers which was in possession of accused No.1 and 2. In this case even according to the prosecution the investigation commenced after arrest of accused No.1 and
2. It is the case of the prosecution that based 35 S.C. No.1038/2009 on the voluntary statement of one accused the other accused are arrested. According to the I.O. when accused No.1 and 2 were produced before him he recorded their voluntary statement and thereafter he arrested accused Pulakeshi and seized two wooden frames which contains the photograph of Gandhiji. He connected the accused Suresh by stating that Suresh had handed over those two frames to him and through him those frames were seized. On his voluntary statement accused No.4 Suresh was arrested from whom Xerox machine, paper cutter, and wooden frames were seized. Thereafter, accused No.5 was arrested who had sent SMS about air-ticket. In this way initial arrest of accused No.1 and 2 lead to arrest of accused No.3 to 5 and their involvement is stated by the prosecution.
36 S.C. No.1038/200919. The particular act of accused No.1 and 2 stops at initial stage and the allegation against accused No.3 commences from the evidence of P.W.4 & P.W.5. This P.W.4 says that accused No.3 was running a shop and police have seized CDs from his shop. P.W.5 says in the same version about running of CD shop by the accused No.3 and seizure of the CDs.
20. With respect to the involvement of accused No.4 the prosecution relied upon evidence of P.W.3 and P.W.9. P.W.3 says that accused No.4 had purchased canon company colour Xerox machine for Rs.43,000/- along with transform. However, this witness has stated that he is not having any documents to show this transaction. He had categorically stated that it is not possible to take out the print of currency note. But, it is only used to Xerox the papers. According to 37 S.C. No.1038/2009 him, if that Xerox note is touched one can easily identify that it is a duplicate note. P.W.9 says that one Ramanna and accused Suresh brought a screen which contains Gandhi photo and he had exposed and given. He also handed over the tracing sheet. However, he denied that Ex.P.10 is that exposed screen. He is not having documents to show this transaction. That Ex.P.10 was handed over by him to the police.
21. With respect to involvement of accused No.5 the prosecution had relied upon the evidence of P.W.10 who had identified that he was working as a Receptionist and he had stated that he was a good employee.
22. The material witnesses to the prosecution are raid and recovery mahazar witnesses; i.e., P.W.11 and 13. P.W.11 says that they are friends, but P.W.13 denies. It is 38 S.C. No.1038/2009 admitted that both are well acquainted with the police department as they used to visit the police station often. P.W.13 is a Computer Supplier. P.W.11 had categorically stated that police took them to RBN playground at 7 p.m. and they found that there was a Santro car, but he had not seen the accused No.1 and 2 in that car. According to him, police have shown the notes, but he is not aware from whom those notes were recovered. However, P.W.13 says that he was taken to Gangadhar Shetty Road and he found accused No.1 and 2 in that car. He had stated about recovery of the articles from the accused.
23. He admits that he is known person to the police department. According to him he is unable to say the vehicle in which he went to the spot. He also not stated about 39 S.C. No.1038/2009 the vehicle number. He admits that every person will keep purse and money.
24. With respect to recovery mahazar P.W.11 says that police have taken them to a house but, the accused were not there in that house. The police have seized one printer Xerox machine and other articles. With respect to other suggestions he shown ignorance. He identified about the original notes but, denies about the fake notes. Usually, he used to accompany the police. He shown ignorance that many cars were parked, but from which vehicle those articles were seized is not within the knowledge of this witness. He admits that he signed many mahazars. However, P.W.13 says that he was taken to the house of Pulakeshi and Suresh. He is not aware of the house number of Suresh. There is no specific identification about the articles seized from the accused.
40 S.C. No.1038/200925. P.W.7 is a witness to Ex.P.5 Mahazar had turned hostile regarding seizure of the mobile. Then remains the evidence of P.W.8 the Scientific Officer who had categorically stated that the articles found in D.1 to 4, A.1 & 2, C.1 to 3, were the original notes. The remaining were the fake notes. He identified M.Os.29 to 93 as fake notes. It is suggested that M.Os.29 to 91 like notes are available in the shops and they are only Xerox notes, but not the fake notes. According to him, by doing scanning of original note these notes were printed.
26. P.W.12 is the Police Inspector who has stated about submission of the charge sheet had categorically stated that there is a gap of 3 months from the date of recovery to the date of sending to FSL.
27. Then remains the evidence of I.O. who had stated about the seizure of the 41 S.C. No.1038/2009 articles and also recording of voluntary statement. However, he had not at all taken signature of the panch witnesses on printed sheets. There is suggestion that Chandan Gopal had not registered the complaint nor he instructed him to register the complaint. He admits that if any cognizable offence is reported immediately FIR should be registered. It is undisputed that there is a long delay in sending the FIR to the Magistrate. It is undisputed that though there were chance of sending the FIR immediately, but no proper efforts are made. He admits that Ibrahim and Javid are witnesses to the mahazar.
28. The counsel appearing for the accused No.4 had relied upon the citation reported in (2002) 1 SCC 487 between Thanedar Singh v/s State of MP wherein it is held that:
42 S.C. No.1038/2009"Delay in sending the FIR to the Magistrate and if that doubt is not cleared adverse inference can be drawn."
29. In the present case on hand also there is a delay in sending the FIR to Magistrate for more than 20 hours which is not explained by I.O.
30. In another citation reported AIR 1993 SC 2644 between State of Andhra Pradesh v/s Punathi Ramulu and others, wherein it is held that:
"FIR or statement recorded during investigation the Investigating Officer deliberately not recording FIR after receipt of information of cognizable offence. Registering the complaint as FIR after reaching the spot and after due deliberations, consultations and discussion complaint could not be treated as FIR. It would be a statement made during investigation and hit by Section 162."43 S.C. No.1038/2009
31. In the present case on hand, the complainant though received information had conducted raid and thereafter he came to the station and handed over the report to register the case.
32. In another citation reported in ILR 2013 KAR 992 between H.C.Karigowda alias Srinivas and others v/s State of Karnataka on the same point with respect to non- registering of the case before proceeding to spot.
33. In another citation reported in ILR 1995 KAR 2784 between Abbas v/s State of Karnataka, wherein it is held that:
"The alleged voluntary statements of the accused persons was marked, but it cannot be taken as substantive evidence as the concerned I.O. had not stated as to what were informations given by the accused. No 44 S.C. No.1038/2009 accused can be convicted merely an account of suspicion."
34. In another citation reported in 1996 Crl.L.J. 317 which is the equivalent citation to ILR 1995 KAR 2784 between Abbas v/s State of Karnataka.
35. In another citation reported in (2012) 4 SCC 722 between Govindaraju alias Govinda v/s State by Srirampuram Police Station and another, wherein it is held that:
"It cannot be stated as a rule that a police officer can or cannot be a sole eye witness in a criminal case. If, testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses, then it cannot be discarded."
36. In the present case on hand it is a case of raid conducted by the police with the help of independent witnesses and the main 45 S.C. No.1038/2009 case is depending on the evidence of official witnesses.
37. In another citation reported in (2011) 3 SCC 473 between Mustkeem v/s State of Rajasthan, wherein it is held that:
"In case of circumstantial evidence in a recovery of crime articles witness of recovery turned hostile and another witness admitted that signatures were obtained on memos at police station, prosecution failed to establish as to why none of the local persons living close by were called to be witnesses. If recovery memos were prepared in police station, it would loose their sanctity.
38. In the present case on hand 2 independent witnesses P.W.11 and 13 have stated different versions who are the witnesses to the recovery also.46 S.C. No.1038/2009
39. In another citation reported in 2004 SCC (Crl.) 220 between Suchand Pal v/s Phani Pal wherein it is held that:
"The prosecution cannot take advantage of weekness of the defence."
40. In the present case on hand the court has to see the M.Os. recovered in this case. The amounts recovered from accused No.1 and 2 at the first instance during raid were genuine notes. It is the contention of the I.O. that in the dash board of the car they found the A4 size sheets which contains the fake notes.
41. In the present case on hand the matter to be looked into is whether the prosecution is making allegation against the accused about preparation of the fake notes or making the Xerox of the original notes. Because, at one instance prosecution contended that by using the genuine notes 47 S.C. No.1038/2009 with the help of Xerox machine accused No.4 used to Xerox the notes on A4 size sheet and these accused No.1 to 3 are circulating the amount in the open market. However, it is also the case of the prosecution that this accused No.4 with the help of accused No.3 had got scanned the Gandhiji photo and they were using frames. However, all these articles are recovered from accused No.3 and
4. However, the prosecution is not stating that accused No.3 and 4 are manufacturing the fake currency notes with the help of the photo frame and the exposed photo of Gandhiji. It is not at all the case of the prosecution. Then for what purpose these articles are recovered and what allegation made against these accused No.3 and 4 and in what way this accused No.1 and 2 are in this picture is not explained by the I.O.
48 S.C. No.1038/200942. If at all accused No.3 is manufacturing the fake notes why he will keep the colour Xerox machine and in what way it is useful is not explained. The prosecution itself is in doubt whether it is a case of manufacturing the fake currency or making Xerox copy of the original notes. Because the main person according to the prosecution is accused No.4 who prepared the notes in whatever mode and he used to hand over the notes for circulation. When there is no specific averment about Xerox or preparation the duty is on the prosecution to explain on which materials it is basing its case. It is the case of the prosecution that accused No.4 purchased the Xerox machine from a witness and that witness says that the said machine cannot be used to Xerox notes because one can identify that it is not a genuine note by touching itself.
49 S.C. No.1038/200943. The definition of counterfeit says that if a person by looking to the article believes that it is original then only the provision of counterfeiting will apply. Here, in this case the entire case based on the A4 size sheets fake notes which according to the prosecution are Xerox copies of the original. In this case, in the Case Diary Page-1 the I.O. had categorically stated that accused Suresh had given voluntary statement and produced 7 articles which includes 63 fake notes of Rs.500/- value, canon Xerox machine, colour laser copier, nutron stabilizer, metallic paper cutter machine, TMPC copier, and 60 sheets which contains the printed forms of Rs.500/- notes and 53 blank sheets, paper pieces, one wooden sheet used for screen printing, and 5 sheets which contain Rs.500/- notes copies.
44. These articles according to the prosecution are recovered from the 4th 50 S.C. No.1038/2009 accused which is used for doing the Xerox of the original notes. However, the person who alleged to have sold the Xerox machine had categorically stated that it is not possible to take out the Xerox copy of the original notes which can deceive anybody to believe as original notes. When once it is not possible to make believe those copies of the notes then it does not comes within the definition of counterfeit.
45. In this case the investigation started from the arrest of accused No.1 and 2. However, the police have not recovered any fake currency notes from the person of accused No.1 and 2. However, it is alleged that they recovered the A4 size sheets with printed notes in the dash board of the car. It is pertinent to note that why if at all these accused wanted to circulate those currency notes, they will keep A4 size sheet intact at 51 S.C. No.1038/2009 the time of raid. If at all they wanted to circulate the notes they ought to have brought the notes which are already finished notes. Further, those Xerox copies cannot be acceptable as counterfeit notes because according to the prosecution witness one can easily identify that these notes are fake notes.
46. With respect to involvement of accused No.3 his contention is that he along with the 4th accused used to colour Xerox the notes and requested them to hand over the amount to a person of Lucknow. In this case, it is alleged that these accused No.1 and 2 were circulating the notes. However, even according to the complainant at the time of conducting raid accused No.1 and 2 were sitting in the car then how can they distribute the fake currency notes as alleged.
47. With respect to accused No.5 it is alleged that through his mobile he booked air 52 S.C. No.1038/2009 tickets. However, in this case his involvement regarding printing or circulating fake currency is not established.
48. Section 489 (b), 489 (c) and 489 (d) says about forgery also. Section 489 (b) says that if a person knowing fully well uses, sells, buys or receives the forged currency notes it amounts to an offence. Having possession of such forged notes is punishable under Section 489 (c), making or possessing instruments or materials for forging is punishable under Section 489 (d).
49. With respect to registering of the case before leading to raid even the I.O. admits that in case of cognizable offence first the information has to be registered and thereafter they have to proceed for a raid. In this case admittedly the FIR was not registered at the first instance. Further there is a delay of 20 hours in sending the FIR to 53 S.C. No.1038/2009 Magistrate which is not explained by the I.O. With respect to the witnesses to the raid P.W.11 says that P.W.13 is his friend and they used to visit the police station oftenly and they were having good acquaintance with the police. Even P.W.11 says he had not seen from whom the amount was recovered and from which car the amount was recovered. He had not seen the accused at spot. Whereas another witness P.W.13 identifies the accused and the articles. Thus, there is a variation in the contentions of the witnesses. However, these things are not so material on record, because the matter used to the economy of the country and hence these aspects cannot be ignored.
50. Then the matter to be looked into is about the definition of forgery, which says that whoever makes any false document with intent to cause damage or injury to the public 54 S.C. No.1038/2009 with intent to commit fraud which amounts to forgery. In this case though there is no material placed by the prosecution about counterfeiting of currency notes, but the prosecution had placed materials on record to prove the forgery of the notes. Because Rs.500/- notes printed on A4 size sheet was recovered from the vehicle wherein the accused No.1 and 2 were arrested. On enquiry of these accused they told about taking out of the Xerox copy of the original notes by accused No.3 and 4 and they were aware that the said notes were not genuine and hence, accused No.1 and 2 have to be punished for possession of the forged notes.
51. With respect to using as genuine notes there are no materials placed on record to establish this provision. With respect to 489 (d) making or possessing instruments or materials for forgery as an offence. In the 55 S.C. No.1038/2009 present case on hand, accused No.3 and 4 were in possession of the Xerox machine photo frames, cutter which articles are used for taking of a print of the currency notes. Thus, accused No.3 and 4 have committed an offence under this Section. The accused also have made use of the Xerox copy of the notes and committed the offence U/Sec.489(e) of IPC. However, in this case, forging of the currency notes in the form of taking Xerox which is in collusion with each other amounts to an offence under Section 489 (c) and (d) with 120 B of Cr.P.C., which constitutes that there is a conspiracy amongst them. Hence, the accused No.1 to 4 are found guilty. Hence, I answer this point Nos.1, 3 to 6 in the Affirmative and point No.2 in the Negative against accused No.1 to 4 only.
56 S.C. No.1038/200952. Point No.7: In view of my finding on the above said points, I proceed to pass the following:
ORDER The accused No.1 to 4 are convicted under Section 235(2) of Cr.P.C., as they found guilty of the offences punishable under Section 120(B), 489 (b), 489 (c), 489 (d) and 489 (e) of IPC.
To hear regarding sentence.
(Dictated to the stenographer, computerized corrected, signed and then pronounced by me in the open court on this the 15th day of June 2015).
(B.S.REKHA) 57th Addl.City Civil & Sessions Judge, Mayo Hall, Bangalore.
57 S.C. No.1038/200953. Heard on sentence. The learned P.P. contended that as the offences are punishable with imprisonment of life or may extend to 10 years and hence, maximum sentence be imposed. He also relied upon decision reported in (2015)2 S.C.C. (Cri) 325 between State of Punjab v/s. Bawa Singh which relates to the principles of imposing sentence. He also contended that on the nature of offence, lenient view need not be taken.
54. Heard advocate for A.1 to 4 who had contended that one of the accused is recently married and there is no other case against these accused through out India and lenient view may be taken.
55. In this case, while discussing in the Judgment I have come to the conclusion, the prosecution has not proved the act of the 58 S.C. No.1038/2009 accused and the definition of counterfeit which in compare though forgery is much serious offence. However, in this case the accused had Xeroxed the original notes and hence lenient view has to be taken while imposing the sentence. Hence, in my opinion it is just and necessary to sentence the accused, as follows:
The A.1 to 4 are sentenced under go simple imprisonment for a period of 2 years for 489(B) of IPC and fine of Rs.1,000/- each.
The A.1 to 4 are sentenced under go simple imprisonment for a period of 2 years for 489(C) of IPC and fine of Rs.1,000/- each.
The A.1 to 4 are sentenced under go simple imprisonment for a period of 1 year for 489(D) of IPC and fine of Rs.500/- each.59 S.C. No.1038/2009
The A.1 to 4 are sentenced to pay a fine of Rs.50/- each for 489(E) of IPC.
The A.1 to 4 are sentenced under go simple imprisonment for a period of 6 months for 120(B) of IPC and fine of Rs.100/- each.
All the sentences run concurrently.
The M.Os.1 to 14 and 19 are ordered to be returned to A.1. M.O.15 to 18, 20 to 27 are ordered to be returned to A.2. The interim order regarding the Car is made absolute. M.Os.29 to 96 are ordered to destroyed after appeal period.
(B.S.Rekha) LVII ACC&SJ, Bengaluru.60 S.C. No.1038/2009
2. ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Puttalingaiah
P.W.2 J.Rajashekharaiah
P.W.3 Dilip
P.W.4 Ramesh.R.
P.W.5 Firoz Khan
P.W.6 Chandangopal.V.
P.W.7 Venkatesh
P.W.8 M.Shankarappa
P.W.9 Raghunath
P.W.10 Victor
P.W.11 Javid
P.W.12 S.Badarinath
P.W.13 Syed Ibrahim
P.W.14 Mallesh.K.
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Mahazar
Ex.P.1(a) Signatures of C.W.2
Ex.P.1(b) Signature of P.W.6
Ex.P.1(c) Signature of P.W.11
Ex.P.1(d) Signature of P.W.13
Ex.P.1(e) Signature of P.W.14
Ex.P.2 & 3 Photos of Xerox Machine Ex.P.4 Report Ex.P.4(a) Signature of P.W.6 Ex.P.4(b) Signature of P.W.14 Ex.P.5 Mahazar Ex.P.5(a) Signature of P.W.7 Ex.P.5(b) Signature of P.W.14 Ex.P.6 Mahazar 61 S.C. No.1038/2009 Ex.P.6(a) Signature of P.W.9 Ex.P.6(b) Signature of P.W.14 Ex.P.7 Statement of P.W.7 Ex.P.8 FSL Report Ex.P.8(a) Signature of P.W.8 Ex.P.9 Sample Seal Ex.P.9(a) Signature of P.W.8 Ex.P.10 Tracing Paper contained Gandhiji Photo Ex.P.11 Letter Ex.P.12 Mahazar Ex.P.12(a) Signature of P.W.11 Ex.P.12(b) Signature of P.W.13 Ex.P.12(c) Signature of P.W.14 Ex.P.13 Mahazar Ex.P.13(a) Signature of P.W.11 Ex.P.13(b) Signature of P.W.13 Ex.P.13(c) Signature of P.W.14 Ex.P.14 Statement of P.W.13 Ex.P.15 FIR Ex.P.15(a) Signature of P.W.14 Ex.P.16 PF No.73/2009 Ex.P.16(a) Signature of P.W.14 Ex.P.17 Voluntary Statement of Accused No.3 Ex.P.18 Voluntary Statement of Accused No.4 Ex.P.19 Voluntary Statement of Accused No.5 Ex.P.20 & 21 Print Out
3. LIST OF WITNESSES EXAMINED FOR ACCUSED:
- NIL -
4. LIST OF DOCUMENTS EXHIBITED FOR ACCUSED:62 S.C. No.1038/2009
- NIL -
5. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION:
M.O.1 Purse (Accused No.1) M.O.2 to 5 Rs.1,000/- 4 Currency Notes M.O.6 & 7 Rs.100/- 2 Currency Notes M.O.8 D.L. (Accused No.1) M.O.9 to 12 4 Debit Cards M.O.13 & 14 2 Visa Cards
M.O.15 to 18 Rs.500/- 4 A4 Size Printed Sheet M.O.19 Mobile (Accused No.1) M.O.20 Purse (Accused No.2) M.O.21 to 23 Rs.500/- 3 Currency Notes M.O.24 Pan Card M.O.25 Debit Cum ATM Card M.O.26 Slip M.O.27 Mobile M.O.28 Car M.O.29 to 91 Rs.500/- 63 Printed Notes M.O.92 Rs.500/- 3 A4 Size Printed Sheet M.O.93 Rs.500/- 3 A4 Size Printed Sheet MO.94 & 95 Photo Frames M.O.96 Wooden Frame M.O.97 Mobile Phone (B.S.REKHA) LVII ADDL. CITY CIVIL & SESSIONS JUDGE, MAYOHALL UNIT, BANGALORE.