Calcutta High Court (Appellete Side)
Abdul Sattar vs The State Of West Bengal on 6 December, 2019
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRA 426 of 1990 Abdul Sattar
-vs.-
The State of West Bengal
For the Appellant : Mr. Mrityunjoy Chatterjee
Ms. S. Chakraborty
For the State : Ms. Faria Hossain
Ms. Baisali Basu
Heard on : 25/07/2019 ; 21/08/2019;
29/08/2019 ; 20/11/2019
& 22/11/2019
Judgment on : 06/12/2019
Tirthankar Ghosh, J:-
The present appeal has been preferred against the judgment and order dated 10th September, 1990 passed by the Ld. Sessions Judge, Malda in connection with Sessions Case No. 105/88 (ST No. 14/90), wherein the Ld. Sessions Judge was pleased to hold the appellant guilty under Sections 489B and 489C of the Indian Penal Code (IPC) and sentenced him to suffer Rigorous Imprisonment for 4(four) years and to pay fine of Rs. 1000/- in default 6(six) months Rigorous Imprisonment for the offence punishable under Section 489B and imposed similar sentence for the offence under Section 489C of the IPC. The Ld. Trial Court further directed the sentences to run concurrently.
The prosecution case in short is that one Haripada Sarkar lodged a written complaint with the Officer-in-Charge, English Bazar Police Station on 6th November, 1986 alleging that he is a poor rice seller, who purchases small quantity of paddy for husking the same at Tulsi Rice Mill in front of Malda College. On 6th November, 1986 one Abdul Sattar purchased two quintals of rice from him for a sum of Rs. 640/-. The informant suspected that one piece of hundred rupee note was forged and accordingly he showed the said note to some of the persons present in the mill who identified the same as forged and referred the informant to the police station.
On the basis of the aforesaid written information addressed to the Officer- in-Charge, English Bazar Police Station Case No. 11/286/86 dated 6th November, 1986 was registered for investigation under Sections 489B and 489C of the IPC. The Investigating Officer of the case on completion of investigation submitted charge-sheet being charge-sheet No. 157 dated 26th December, 1987 against the present appellant. The case was thereafter committed to the Court of Sessions and the Ld. Trial Court after compliance with the relevant provisions of the Code of Criminal Procedure (CrPC) was pleased to frame charge under Section 489B and 489C of the IPC. The charge was thereafter read over to the appellant to which he pleaded not guilty and claimed to be tried.
The prosecution in order to prove its case relied upon five witnesses being PW1 the informant, Haripada Sarkar, PW2 Subal Chandra Das, PW3 Bipad Bhanjan Das, PW4 Narayan Singh and PW5 Narayan Sarkar.
On conclusion of prosecution evidence the Ld. Trial Court fixed date for examination of accused person under Section 313 of the CrPC and thereafter fixed date for the defence to examine its witnesses. The Ld. Trial Court thereafter was pleased to fix date for hearing of final arguments of the case. After the final arguments were over, the Ld. Trial Court fixed date for delivery of judgment. On 10th September, 1990, the Ld. Court by its judgment was pleased to arrive at a finding of guilt in respect of the present appellant for commission of offence punishable under Sections 489B and 489C of the IPC and sentenced him as aforesaid.
PW1, Haripada Sarkar in his evidence deposed before the Court that he is a dealer in rice and also cultivates the same. He usually goes to Tulsi Rice Mill in front of Malda College for husking the paddy. The owner of the said mill is one Jatindra Nath Seth, Subal and Bipad Bhanjan are his employees. On 6th November 1986, he went to the mill to husk paddy, after husking he received two quintals of rice and sold the same to the appellant Abdul Sattar for a sum of Rs. 640/-. The appellant gave him 4(four) hundred rupee notes,2(two) twenty rupee notes and 2(two) fifty rupee notes. Out of the 4(four) hundred rupee notes, he suspected one of the hundred rupee note to be forged, as the round emblem was subsequently pasted in the currency note. The said note on being compared with the other three notes, the complainant found the disputed note very soft and black thread mark was missing in the note. The witness showed the said note to Subal and Narayan who were present at the mill who also opined the same to be forged and accordingly he asked the appellant to go to the bank with him alongwith his associates. After reaching the State Bank at Malda they found the bank at that time was already closed but some of the employees were present there who on being shown the note opined the same to be a forged one. The witness along with his associates thereafter returned to the mill and closed the same and accordingly went to the English Bazar Police Station, Malda. At the police station this witness filed a written complaint which was written by Subal Das. The Officer-in-Charge thereafter seized Rs. 790/- from the appellant, a seizure list was prepared wherein the witness gave his signature on it and a signature was also made on the forged note. The witness identified the written complaint which was marked as Ext. 1, his signature on the seizure list which was marked as Ext. 2. The forged note which was marked as MAT Exhibit 1 and the other notes marked as MAT Exhibit 2.
PW2, Subal Chandra Das is an employee of Tulsi Rice Mill, he deposed that on 6-11-1986 PW1 after husking paddy in the mill sold two quintals of rice to the accused/appellant for which the appellant paid Rs. 640/- and one of the hundred rupee note was found to be forged. The witness said that on enquiry regarding the forged note the accused protested and to verify the same PW1 along with him and others went to the bank where the employees of the bank were standing outside and opined the note to be also forged and as such they went to the police station for reporting the incident regarding the forged note. The witness adds that he suspected the note to be forged as the paper was abnormal, there was no black thread and the symbol was subsequently pasted, further the printed letters in the said note were also abnormal.
PW3, Bipad Bhanjan Das is an employee of Tulsi Rice Mill. He deposed that the appellant handed over money out of which one hundred rupee note was forged for the purpose of purchasing rice from PW1. The accused along with the currency note was produced before the local police station and he was accompanied by PW1 and PW2 there.
PW4, Narayan Singh deposed that on 6-11-1986 he went to Tulsi Rice Mill for purchasing rice. At that time he found a trouble going on between PW1 and some other persons. At that time PW1 handed over one hundred rupee note and asked to inspect the same, after inspection he found the note to be a forged one. In order to verify the note the witness accompanied PWs 1, 2 & 3 along with the accused to the bank where some of the employees after inspecting the same opined that the note was forged and as such they took the accused to the police station along with currency note. At the police station, police seized the forged note under a seizure list and the witness signed the same. The witness identified the forged note in Court which was marked as MAT Exhibit 1.
PW5, Narayan Das is Investigating Officer of this case. He seized the forged note under a seizure list which was prepared by him and duly signed by him. He also added that he sent the same to the Government Press at Nasik for being tested. He identified the report of the expert which was marked as Ext.3.
Mr. Chatterjee, Ld. Advocate for the appellant submitted that the manner in which the witness identified the appellant showed that he was a regular customer and regular visitor of the said mill, as such the evidence itself disclosed the appellant was also involved in the business of rice/paddy in small quantities. He added that out of number of notes which were handed over, and one of the notes if accepted to be true, was a forged one. So there was no intention on the part of the appellant having any knowledge regarding the forged currency and mere ignorance cannot be a ground for convicting an innocent person. To that effect he relied upon M. Mammutti vs. State of Karnataka, 1979 (4) SCC 723 and Madan Lal Sarma vs. State, 1990 Cr LJ 215.
Ms. Faria Hossain, Ld. Advocate for the State submitted that the appellant had complete knowledge regarding the fake Government currency being used in view of the evidence which is revealed from the deposition of the witnesses. None of the witnesses were expert in the subject yet all of them at the first instance identified the currency to be a fake one and one of the identification regarding such forgery is related to the round emblem being subsequently pasted. Ld. Advocate supports the judgment and order of conviction passed by the Ld. Trial Court and submits that there is no scope for interference with the same.
It would be convenient for the sake of this case to quote Sections 489B and 489C for the purpose of this appeal, which is as follows:-
"489B. Using as genuine, forged or counterfeit currency- notes or bank-notes. - Whoever sells to, or buys or receives from, any other persons, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
489C. Possession of forged or counterfeit currency-notes or bank-notes. - Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
In M. Mammutti (supra) relied upon by the Ld. Advocate for the appellant is a case under Sections 489B and 489C of the IPC, wherein it has been observed by the Hon'ble Apex Court that if there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note then in that case it would be very difficult in drawing an adverse presumption so far as the appellant is concerned. In this case the Hon'ble Apex Court was also dealing with a similar set of facts, where the appellant had sold three quintals of tamarind fruits and the purchaser received a sum of Rs. 390/- in two rupee notes. A contention was advanced by the State that once the appellant was in possession of counterfeit notes then it must be presumed to know that the notes were counterfeit and if a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn against the accused/appellant. However, the Hon'ble Apex Court was of the opinion that in such a case no specific question was asked to the appellant in order to find out whether the accused knew that the notes were of such a nature, and on such finding the Hon'ble Apex Court proceeded to acquit the appellant of the charges.
In Madan Lal Sarma (supra) relied upon by the Ld. Advocate for the appellant, by following the aforesaid decision of M. Mammutti the Hon'ble Calcutta High Court acquitted the appellant of the charges under Sections 489B and 489C of the IPC.
In Umashanker vs. State of Chaattisgarh reported in 2002 SCC (Cri) 758 in paragraph 8 it has been observed as follows:-
"....... shows that mens rea of offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, notes above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea."
In the said judgment it has also been observed as follows:-
"....... Further it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the appellant in his examination under Section 313 of the Criminal Procedure Code."
The Hon'ble Apex Court, after observing and taking into account the aforesaid two factors proceeded to acquit the accused persons.
I have scrutinized the evidence on record as also the examination of the accused/appellant under Section 313 of the CrPC. The conduct of the appellant from the very inception when he was challenged regarding the counterfeit note was never to evade or flee away from the persons who suspected the hundred rupee note to be a fake one. It may also be added that out of 4(four) hundred rupee notes one of the note was a suspected one, the accused/appellant accompanied the complainant to the bank and also returned back to the mill and thereafter went to the police station. The appellant was a known person who used to regularly deal with small quantity of paddy and rice with the mill. The prosecution by no means of evidence has been able to show mens rea on the part of the appellant from which it can be distinguished that he did have reasonable knowledge or he did not have reasonable knowledge regarding the counterfeit currency. Further no specific question with regard to the currency notes being fake or counterfeit was put to him in his examination under Section 313 CrPC.
In view of the observations made above, I hold that the prosecution has failed to prove the charges against the appellant and as such the judgment and order of conviction dated 10th September, 1990 requires to be set aside.
The appellant is acquitted of the charges under Sections 489B and 489C of the IPC.
The appellant is on bail, he shall therefore be discharged from the bail bonds.
CRA 426 of 1990 is accordingly allowed.
LCR be sent back to the Ld. Court below.
Department is directed to communicate this order to the Ld. Court below. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)