Delhi District Court
State vs 1. Shrawan Mehto S/O. Sri Ram on 4 September, 2010
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDG E;
(EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS C ASE No. 82/09
FIR No. 461/03
U/S : 489A/489B/ 489C/120B IPC
P.S: Kalyan Puri
State Versus 1. Shrawan Mehto S/o. Sri Ram
Naresh Mehto R/o. Q. No. 5 5,
Lal Bahadur Shastri, Delhi.
2. Raj Kishore S/o. Magister Singh
R/o. Q. No. 33, Lal Bahadur Shasatri
Hospital, Delhi.
3. Dharmesh Kumar S/o. Raj Dev,
R/o. H. No. 20A, J& K Bl ock, Laxmi
Nagar, Delhi.
(Declared P.O vide order dated 15.1.10)
DATE OF INSTITUTION : 13.2.04
JUDGEMEN T RESERVED ON : 25.8.10
JUDGEMEN T DELIVERED ON : 4.9.10
JUDGMEN T
1.On 9.10.03 PW7 SI Dharamvir Gautam after receiving DD No. 23A reached at Jalebi Chowk, Kalyan Puri. There PW3 Ct. Amit, PW5 Ct. Premvir met him with fruit seller Suresh (PW1) and accused Shrawan Mehto. PW5 handed over him one currency Note of denomination of Rs.100/- which was fake and was used by the accused for purchase of apple from PW1. PW5 also told that five currency Notes of same number and same denomination FIR No.461/03 Page 1 o f p a g e 1 4 were also recovered from possession of the accused. IO PW7 recorded statement of complainant PW1 where he stated that at 7.40 p.m a person came to his shop and purchased one kilogram apples @ Rs.15/- per kilogram and gave him currency Note of Rs.100/-. He found the Note to be fake as it was of deep blue colour and wire of it was not shining. He started weighing apples for the other customer but that person asked him to pay back the balance. He called the police officials standing nearby and showed them the currency Note and they also found this Note to be fake. Both the constables inquired from that man about other currency Notes and he took out five currency Notes each of Rs.100/- denomination from the pocket of his pant, bearing same numbers. The name of that person was disclosed as Shrawan Mehto.
2. IO PW7 prepared rukka Ex.PW7/A and through PW5 got this FIR registered. Accused Shrawan Mehto made disclosure statement and led the police party to house No. 33, LBS Hospital and from there accused Raj Kishore was apprehended and on his search 10 currency Notes each of Rs.100/- denomination were recovered. This accused also made disclosure statement.
3. Accused Raj Kishore led the police party to house No. 20A, J & K Block, Laxmi Nagar, from there accused Dharmesh was apprehended and from his possession several complete and incomplete currency Notes of denomination of Rs.1000/-, Rs.100/-, Rs.50/-, Rs.10/-, one copier scanner and printer of HP used for ma king currency Notes were sei zed.
4. On all the fake currency Notes opinion of India Security Press, Nasik was taken. After investigation police filed chargesheet against all the three accused persons u/s. 489A/4 89B/489C and 120B IPC.
5. Vide order dated 3.3.04, charge u/s. 489B/489C IPC was given to FIR No.461/03 Page 2 o f p a g e 1 4 accused Shrawan Mehto, to which he pleaded not guilty and claimed trial. Charge u/s. 489A and 489C IPC was given to accused Dharmesh Kumar, to which he pleaded not guilty and claimed trial. Charge u/s. 489C IPC was given to accused Raj Kishore, to which he pleaded not guilty and claimed trial.
6. During trial accused Dharmesh absconded and was declared P.O vide order dated 15.1.10.
7. To prove its case prosecution examined 11 witnesses. PW1 Suresh is the complainant, he proved his complaint Ex. PW1/A. He identified his signatures on Ex.PW1/B, PW1/C and PW1/D. PW2 HC Shyam Singh proved DD No. 75B dated 9.10.03 as Ex.PW2/A, DD No. 23A Ex.PW2/B, he also proved FIR No. 461/03 as Ex.PW2/C. PW-3 Ct. Amit Kumar was present near the spot being on patrolling duty. He proved seizure memo of the currency Notes Ex.PW3/A, disclosure statement of accused Raj Kishore Ex.PW3/B and his personal search memo Ex.PW3/C. PW4 is Ct. Rishi Prakash, his examination-in-chief was recorded on 13.7.05 but he was not called again for cross-examination, therefore, his statement cannot be read in evidence. PW5 Ct. Premvir Singh was on patrolling duty with PW3 and immediately reached at the spot. He proved arrest memo of accused Shrawan Mehto Ex.PW5/A, arrest memo of accused Raj Kishore Ex.PW5/B, arrest memo of accused Dharmesh Ex.PW4/D and his personal search memo Ex.PW4/C, seizure memo of the parcel containing material used for preparing Notes as Ex.PW4/B. PW6 Ct. Shesh Rao, MHC(M) took the pulandas vide RC No. 91/21 to Currency Press Nasi k, Maharashtra. PW-7 SI Dharamvir Gautam IO of the case proved rukka Ex.PW7/A, site plan Ex.PW7/B, photographs of the spot Ex.PW7/C. PW8 Inspector Vijay Kumar, Food & Supply proved ration card record of Raj Dev as Ex.PW8/A. PW9 HC Yoginder proved copy of the complaint register containing entry regarding complaint received from Dharmesh Kumar as Ex.PW9/A.PW-10 HC Brahmanand, MHC(M) proved entries in register No. 19 as Ex.PW10/A to FIR No.461/03 Page 3 o f p a g e 1 4 PW10/C. PW11 Sh. Sunil Tiwari, Deputy Works Manager, India Security Press, Nasi k, Maharashtra proved his reports E x.PW11/A to PW 11/E.
8. On the basis of the incriminating evidence appearing on record against the accused persons, their statements u/s. 313 Cr.PC were recorded, giving them opportunity to explain it. They denied all the allegations made against them by the prosecution witnesses and took the defence of false implication in this case.
9. Heard arguments of Sh. Rakesh Mehta, Ld. APP for State and Sh.
Rakesh Kochar , Ld. Defence counsel for accused. Per used the recor d.
10. Ld. APP Sh. Rakesh Mehta contended that from the statements of PW3, PW5 and PW7 recovery of forged currency Notes stands proved from possession of both the accused persons. It is stated that prosecution has been able to establish guilt of the accused persons beyond reasonable doubt and both the accused be co nvicted accord ingly.
11. Ld. defence counsel Sh. Rakesh Kochar for the accused raised the following contentions : -
1. It is stated that complainant PW1 has turned hostile and has not supported the prosecution case which demolishes the prosecution case.
2. It is stated that there are material contradictions in the statements of PW3 and PW5, the two police officials who are stated to have reached at the spot.
3. It is stated that despite easy availability no efforts were made to join the public witnesses which again dent the prosecution version of the incident.
12. PW 1 Suresh is the complainant, he deposed that on 9.10.03 he FIR No.461/03 Page 4 o f p a g e 1 4 was present at his rehri. In the evening, one person came there and purchased 1 kg apples from him @ Rs.50/- per kg and gave him a Note of Rs.100/-. He checked the given Note and got suspicious about its genuineness. The Beat Constables were also present there and he showed them the said Note. On checking the same they apprehended that person and took him to P.S. He also went to the PS. He does not know what police did with that 100 rupee Note and in his presence no other Note was recovered from that person. He identified his signatures on Ex.PW1/B. He does not identify the person who handed over one 100/- rupee Note to him on the date of incident. He also fails to identify the 100 rupee Note which was taken by beat constable by him. Police did not take search of that person and other Notes of Rs.100/- were not recovered from his possession in his presence. He identified his signatures on Ex.PW1/C and PW1/D. This witness was declared hostile and cross-examined by Ld. APP. During cross he stated that he did not notice the number of that Note and police also did not note down the number in his presence. He denied that on inquiry name of that person was disclosed as Shrawan Mehto S/o. Ram Naresh Mehto and in his presence five Notes of Rs.100/- were recovered from possession of that person. He denied that remaining Notes of Rs.100/- were given separate numbers and kept in separate envelopes. He further denied that the remaining Notes of Rs.100/- recovered from that person were having the same numbers. He denied that police interrogated that person and recorded his disclosure statement in his presence. During cross by accused he stated that when he was called in the police station, 6-7 papers were got signed from him, some of them were already written and some were plain. Those written papers wer e not read over to him.
13. PW3 Ct. Amit Kumar was on patrolling duty near the spot at that time alongwith Ct. Premvir Singh (PW5). He deposed that on 9.10.03 at about 7.45 p.m they reached at Jalebi Chowk, there a fruit vendor Suresh met them and showed them a Note of Rs.100/- and asked if the Note was original or not and also pointed out towards one person who had given him FIR No.461/03 Page 5 o f p a g e 1 4 that Note after purchase of apple. The Note seen to be counterfeit so they informed the police station. On pointing out of Suresh they apprehended that person and on inquiry his name was disclosed as Shrawan Mehto, the accused present in Court, on his search five Notes of Rs.100/- each were recovered from the left pocket of his pant and all the five Notes had number 8EL 235962. SI D.V. Gautam reached at the spot and accused Shrawan Mehto alongwith Note of Rs.100/- and five Notes of Rs.100/- recovered from Shrawan Mehto were handed over to him. IO seized the Notes separately in two envelopes with the seal of DVG. Accused Shrawan Mehto was interrogated and he made disclosure statement and led them to Quarter No. 33, LBS Hospital and there he pointed towards one Raj Kishore. On search of Raj Kishore 10 Notes of Rs.100/- were recovered from upper pocket of his pant bearing same numbers as 2 MN 250010. Those Notes were seized by IO after sealing with the seal. Accused Raj Kishore made disclosure statement. Both the accused were brought to PS.
14. PW5 Ct. Premvir Singh was accompanying PW3 on 9.10.03 when accused Shrawan Mehto was apprehended. He deposed similar facts as deposed by PW3.
15. PW7 SI Dharamvir Gautam is the IO. He deposed that on the complaint of fruit seller Suresh he prepared rukka and through Ct. Premvir (PW5) got the FIR registered. He recorded disclosure statement of accused Shrawan Mehto and he led the police party to house No. 33, LBS Hospital and from there accused Raj Kishore was apprehended. From possession of accused Raj Kishore currency Note of denomination of Rs.100/-with number 2 MN 250010 ten in number were recovered. All these Notes were of same number. Accused Raj Kishore also made disclosure statem ent. Next morning accused Raj Kishore led the police party in the area of PS Shakarpur and identify house No. 20A, J & K Block, Laxmi Nagar where accused Dharmesh was residing. Accused Dharmesh got recovered several complete and FIR No.461/03 Page 6 o f p a g e 1 4 incomplete currency Notes of denomination of Rs.1000/-, Rs.100/-, Rs.50/-, Rs.10/-. One copier scanner and printer of HP being used for making these currency Notes was also seized. Other materials like scale, white papers, pencils and extension wire were also seized. Some currency Notes in original of denomination of Rs.50/- which were used for scanning fake currency Notes were also recovered. He took photographs of the spot and prepared site plan. After interrogation he arrested accused Dharmesh. On 20.11.03 he sent the case property to Nasik for expert opinion through Ct. Shesh Rao vide RC No. 91/21.
16. PW6 Ct. Shesh Rao took the 12 pulandas to India Security Press, Nasik. He deposed that he took these pulandas vide RC No. 91/21 to Nasik. As per him so long the case property remained in his possession it was not tempered wi th any manner.
17. PW11 Sh. Sunil Tiwari, Deputy Works Manager, India Security Press, Nasik, Maharashtra proved his reports Ex.PW11/A to E. As per PW11 on 10.7.04 he had inspected case property comprising Rs.10/-, Rs.50/-, Rs.100/- and Rs.1000/- currency Notes. He examined all these currency Notes in his laboratory and found that all were counterfeit. During his cross-examination PW11 stated as under : -
"It is correct that these Notes were apparently having no similarity with the original currency Notes and even a layman can make out that these Notes were not genuine. It is correct that the quality of paper of these Notes was inferior to the quality of the origin als. Vol. The paper was of normal qua lity."
18. One of the main contention raised by Ld. defence counsel is that since complainant PW1 has not supported the prosecution case in any manner, the whole prosecution case gets demolished. Accused Shrawan Mehto has been charged for the offences u/s. 489B and 489C IPC. As per the prosecution accused Shrawan Mehto had given a counterfeit currency FIR No.461/03 Page 7 o f p a g e 1 4 Note of Rs.100/- to PW1 Suresh for purchasing 1 kg apples but since PW1 has failed to identify the accused as the same person who had handed over 100 rupee currency Note to him, the charge u/s. 489B IPC cannot be sustained. PW-3 and PW5 who were present in the police booth situated nearby had reached at the spot subsequently and as per them five more currency Notes bearing the same number i.e. 8EL 235962 as of the currency Note allegedly handed over by accused Shrawan Mehto to complainant PW1, were recovered from the pocket of his pant. Thereafter IO PW7 reached at the spot and as per the prosecution case recovery of 10 counterfeit currency Notes each of Rs.100/- denomination was affected from possession of second accused Raj Kishore. PW3, PW5 and PW7 are the three witnesses of recovery. Their testimonies are assailed by Ld. defence counsel on various grounds. Let us see if prosecution has been able to prove the recovery of counterfeit currency Notes from possession of both the accused persons satisfactorily and beyond an iota of doubt.
19. One of the main contentions raised by ld. Defence counsel for accused is that since complainant has not supported prosecution case, the whole prosecution case gets demolished and statements of other witnesses who are police officials cannot be believed. The first transaction as per prosecution in which accused Shrawan Mehto allegedly gave fake currency Notes of Rs.100/- to the complainant PW1 Suresh took place in the absence of PW-3 and PW-5. Since complainant PW1 has not supported prosecution, charge given to accused Shrawan Mehto under Section 489 B goes. As per prosecution, recovery of five fake currency Notes each of Rs.100/- denomination were recovered from the possession of accused Shrawan Mehto in presence of PW-3 and PW-5. Ten fake currency Notes each of Rs.100/- denomination were recovered from the possession of accused Raj Kishore in the presence of PW-3, PW-5 and PW-7. Statements of PW3, PW-5 and PW-7 regarding recovery of fake currency Notes from the possessi on of both the accused have to be appreciated independently from the impact of the statement of PW1 on the prosecution case. I thereby do not agree with this contention raised by Ld. Defence counsel .
FIR No.461/03 Page 8 o f p a g e 1 4
20. Other contention raised by Ld. Defence counsel is that despite easy availability, no public witness was joined either at the stage of recovery of alleged fake currency Notes from the possessi on of accused Shrawan Mehto and subsequent ly at the stage of alleged recovery of fake currency Notes from the possession of Raj Kishore which puts shadow of doubt on the statements of recovery witnesses. PW-3 has admitted that a number of reharis were there at Jalebi Chowk at that time. PW-5 during his cross examination stated that many persons had collected on the shop of fruit seller when they reached there. None of those persons associated with recovery of currency Notes and despite asking they did not join. No such question has been put to IO PW-7 by Ld. Defence counsel for accused, regarding non-joining of public witness. Law is settled that to give transparency in the proceedings conducted by the police, especially in such type of cases all efforts are required to be made by the police to join public witness. However, in Catena of judgment, Apex Court has observed that merely on the basis of non joining of the public witness testimonies of police officials if otherwise found convincing cannot be disbelieved. In 2005(3) Apex Criminal 49, case titled State ( NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, Apex Court has observed the seizure by the poli ce without associating independent witness is not a ground to disbelieve the police officials. Of course, close scrutiny of the evidence is required. There is no law that evidence of police officials in regard to seizure ought to be discarded. I therefore find no merit in this contention raised by Ld. Defence counsel.
21. It is further submitted by Ld. Defence counsel that there are material contradictions in the stat ements of PW 3, PW-5 and PW -7 which go to the root of the matter and shatter their credibility. Contradictions pointed out by Ld. Defence counsel are pertaining to the time i.e. the time of recovery of five fake Notes from possession of accused Shrawan Mehto, the time when accused Raj Kishore was apprehended. Other contradiction pointed out by Ld. Defence counsel is regarding exact place of recovery i.e. whether currency Notes were recovered from the pocket of shirt or pant of accused or from which pocket of the pant. PW-5 was examined in December 2006 whereas PW-3 was examined in April, 2010, examination of IO PW-7 took place in August,09 and he was cross examined in January, 2010. Therefore, it is not surprising that some minor contradictions have occurred in their FIR No.461/03 Page 9 o f p a g e 1 4 testimonies. However, on careful perusal of their evidence, it is apparent that testimonies of PW3, PW-5 and PW-7 are consistent on the material aspects of this case. Contradictions pointed out by Ld. Defence counsel, in my view, are inconsequential and natural variation in the version of the witnesses. On this ground, I find no reason to suspect the credibility of these witnesses. Reliance is placed upon Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC
217.
22. It is further contented by Ld. Defence counsel for accused that in DD No. 23 A which is Ex PW2/B, name of accused Shrawan Mehto is not found mentioned and it appears that real culprit was let off by the poli ce and accused Shrawan Mehto was falsely implicated in this case. As per Ex. PW2/B, recorded at PS at 8.05 PM, an information is received that Ct. Amit Kumar has apprehended a person with fake currency Notes and SI Dharamveer Gautam IO of this case was assigned this DD number for further investigation. Non mentioning of name of accused Shrawan Mehto in this DD number does not put any dent on otherwise found consistent and cogent, testi monies of PW-3, PW-5 and PW-7.
23. Statements of PW3 and PW5 are consistent regarding recovery of five Notes of Rs.100/- denomination each from possession of accused Shrawan Mehto. As per them on the pointing out of PW1 they apprehended accused Shrawan Mehto and on his search five Notes each of Rs.100/- were recovered from left pocket of his pant and all the five Notes were bearing the same number. Regarding recovery of ten counterfeit Notes each of Rs.100/- denomination from possession of accused Raj Kishore statements of PW3, PW5 and PW7 are again found consistent and reliable. As per IO PW7, accused Shrawan Mehto made disclosure statement and after disclosure he led them to house No. 33, LBS Hospital where accused Raj Kishore was staying. At about 10.45 p.m accused Raj Kishore was apprehended when he was coming out of his house and on his search ten currency Notes each of Rs.100/- denomination having same number i.e. 2MN 250010 were recovered. Regarding recovery of fake currency Notes from possession of accused Raj Kishore statements of PW3 and PW5 are consistent with FIR No.461/03 Page 10 o f p a g e 1 4 statement of IO PW-7. As already discussed PW11 who is Deputy Works Manager, India Security Press has specifically stated during his cross- examination that these Notes were apparently having no similarity with the original currency Notes and even a layman can make out that these Notes were not genuine. He has further stated that quality of paper of these Notes was inferior to the quality of the originals. The Ld. defence counsel has also contended that the currency Notes recovered from possession of the accused persons were toy Not es and cannot be termed as counterfeit.
24. As per section 489C IPC Possession of forged or counterfeit currency Notes or bank Notes, knowi ng or having reason to beli eve the same to be for ged or counterfeit and intending to use the same as genuine is held punishable. Section 28 IPC defi nes counterfeit as follows :-
28. "Counterfeit".--A person is said to "counterfeit who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be pra ctised.
[Explanation 1. - It is not essential to counterfeiting that the imitation should be exact.
Explanation 2. - When a person causes one thing to resemble 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 thing intended by means of that resemblance to practise deception or knew it to be likely that decepti on would thereby be practised.]"
25. In 2005 Crl. Law General 143, the case titled K. Hashim V/s. State of Tamil Nadu, the Supreme Court has elaborated the offence of 'counterfeiting' as defined in section 28 IPC. The relevant paras from 49 to FIR No.461/03 Page 11 o f p a g e 1 4 51 are as fol lows :
49. Section 28 defines the word 'counterfeiting' in very wide terms.
The main ingredients of counterfeiting as laid down in section 28 are :
(1) causing one thing to resemble another thing; (2) intending by means of that resemblance to practice deception, or (3) knowing it to be likely that decepti on will thereby be practi ced.
Thus, if one thing is made to resemble another thing and the intention is that by such resemblance deception would be practised or even if there is no intention but it is known to be likely that the resemblance is such that deception will thereby be practised there is counterfeiting.(See The State of Uttar Pradesh V. I. Hafiz Mohd. Ismail (AIR 1960 SC 669)
50. In the said case it was observed that there is no necessity of importing words like "colourable imitation" therein. In order to apply Section 28 what the Court has to see is whether one thing is made to resemble another thing and if that is so and if the resemblance is such that a person might be deceived by it, there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved.
51. "Counterfeit" in Section 28 does not connote an exact reproduction of the original counterfeited. The Explanation 2 of Section 28 is of great significance. It lays down a rebuttable presumption where resemblance is such that a person might be deceived thereby. In such a case the intention or the knowledge is presumed unless contrary is proved.
26. To constitute the offence of counterfeiting it is required that the fake currency Notes recovered from the accused persons should have FIR No.461/03 Page 12 o f p a g e 1 4 resemblance with the original. It is required that percentage of resemblance with the original should be so high that ordinarily a person may not be in a position to easily distinguish it from the original/genuine.
27. Section 463 IPC defines forgery as under :-
[ Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
28. As already discussed in view of statement made by PW11, during his cross examination the currency Notes recovered from accused Shrawan Mehto and Raj Kishore cannot be strictly put in the category of counterfeit as defined under Section 28 IPC but certainly these currency Notes can be put in the category of forged.
29. From the possessi on of accused Shrawan Mehto recovery of five forged currency Notes each of Rs. 100/- denomination bearing the same number stands proved. Similarly, recovery of ten forged currency Notes from the possessi on of accused Raj Kishore each of Rs.100/ - denomination bearing the same nu mber also stands proved. Another necessary ingredients of section 489-C of IPC in addition to possession and knowledge is the intention to use as the same as genuine or that it may be used as genuine. Since complainant PW1 has not supported prosecution story, there is absolutely no evidence on record to establish that accused had the intention to use these currency Notes as genuine. Reliance is placed upon 2002 SCC(Crl.)758 case titled Umashankar Vs. State of Chhattisgarh wherein Apex Court observed that provision of section 489A to 489E IPC are not meant to punish unwary possessor or user. Without mens rea conviction cannot be held under section 489C of IPC.
FIR No.461/03 Page 13 o f p a g e 1 4
30. In view of the facts and circumstances of this case, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused persons. Accused Shrawan Mehto is acquitted for the offence punishable under section 489 B and 489C of IPC and accused Raj Kishore is acquitted for the offence punishable under Section 489C IPC.
31. Accused Dharmesh Kumar being PO, case will be revived against him as and when he got arrested.
File be consigned t o record room.
Announced in the open Court ( SANJAY GARG )
On 4th day of Septem ber, 2010 Addl. Sessions Judge (East)
FTC, Karkardoo ma Courts:
DELHI.
FIR No.461/03 Page 14 o f p a g e 1 4