Bombay High Court
Anupkumar Rajkumar Walmiki @ Rajkumar vs The State Of Maharashtra on 4 May, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1052 OF 2022
IN
CRIMINAL APPEAL NO.321 OF 2022
Mohammed Ibrahim Mohammed Nasir Sheikh Aplicant
versus
The State of Mahrasthtra Respondent
WITH
INTERIM APPLICATION NO.1078 OF 2022
IN
CRIMINAL APPEAL NO.325 OF 2022
Anupkumar Rajkumar Walmiki @ Rajkumar Applicant
versus
The State of Maharashtra Respondent
Mr.Niranjan Mundargi i/by Mr.Omneel Jadhav, Advocate for
applicant in IA No.1052 of 2022.
Mr.Mateen Shaikh with Sharif Shaikh, Kritika Agarwal, R.Shaikh for
applicant in IA No.1078 of 2022.
Mr.S.V.Gavand, APP, for State.
HC Chavan, Serial-3, ATS, Kala Chowki Police Station, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 4th May 2022
PC :
1. The applicants in both the interim applications are convicted
vide judgment and order dated 8th March 2022. The conviction is for
offences under Sections 120B, 489B and 489C of Indian Penal Code.
Both of them were sentenced to suffer imprisonment of 7 years for
the conviction u/s.120B, 7 years for the conviction u/s.489B and 7
Digitally signed by
years for the conviction u/s.489C of IPC.
MANISH MANISH SURESH
SURESH THATTE
Date: 2022.05.06
THATTE 10:38:49 +0530
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2. The applicants are seeking suspension of sentence and grant of
bail during pendency of respective appeals preferred by them
challenging judgment of conviction. The applicants were arraigned
as accused nos.4 to 7 in these cases.
3. The case of prosecution is that information was received that 3
persons are likely to arrive a the spot with counterfeit notes On
receipt of information police reached the spot. Three persons were
apprehended on 12th April 2014. They were impleaded as accused
nos.1 to 3. They were found in possession of counterfeit currency
notes of Rs.1,000/- denomination During the course of investigation
accused no.4 was arrested on 17th April 2014. The investigation
revealed that accused no.4 with the help of another person had
utilized the counterfeit currency note of Rs.1,000/- denomination at
subway restaurant. The investigation proceeded. Accused no.5 was
arrested on 9th May 2014 and there is recovery of 5 counterfeit
currency notes from him. On 10 th June 2014 accused no.6 was
arrested. During interrogation involvement of accused no.7 was
disclosed and he was arrested. Involvement of accused no.7 was
revealed by accused no.6. Accused no.6 had disclosed that currency
notes were kept at the office of accused no.7 by accused no.7.
Thereafter police proceeded to the office of accused no.7 and
recovered about 375 currency notes. On completing investigation
charge sheet was filed.
4. Offences were registered under Sections 489B, 489C, 201, 34
r/w 120B of Indian Penal Code and under the provisions of Sections
15(1)(iii), 16, 18 of UAPA Act, 1967.
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5. Both the applicants were convicted for the aforesaid provisions
whereas they were acquitted for the offences under UAPA Act and
Section 201 of IPC.
6. Learned advocate for applicant represent applicant in Interim
Application No.1052 of 2022 submit that applicant was on bail
during trial. He has not misused the facility of bail. Offence
u/s.489B and 489C is not made out against him. The prosecution is
mainly relying upon the evidence of PW-19 and PW-34 against him.
There are contradictions in the evidence of said witnesses The
involvement of applicant (accused No.4) has not been established.
7. Learned advocate for applicant in Interim Application No.1078
of 2022 submit that applicant was on bail during trial. There is no
evidence to convict him u/s.489B of IPC. Section 489C is not made
out against him. There is no evidence to establish charge of
conspiracy. Investigating agency was aware about the place where
currency notes were to be allegedly recovered. Hence recovery at
the instance of applicant-accused is not in accordance with Section
27 of Indian Evidence Act. The applicant has not misused the facility
of bail.
8. Learned APP submitted that there is sufficient evidence to
establish the charge of conspiracy. Although both the applicants
were on bail during trial, there is sufficient evidence to show
involvement of applicants in the trial. Prosecution had examined
about 48 witnesses to establish charge Both the accused were
involved in circulation of counterfeit currency notes. The note which
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was utilized by accused no.4 is from the same source of currency
note which was found in possession of other accused. This shows
that all the accused were acting in connivance with each other and
they had transpired to distribute the fake currency notes. Evidence
of PW-19 and PW-34 establishes involvement of accused no.4. The
Trial Court in paragraphs 86 and 96 of the judgment has analyzed
the evidence of applicant (accused no.4). The accused were not only
found in possession of currency notes but they were also involved in
circulation of them. Hence, offence u/s.489B and 489C of IPC was
made out. Accused no.7 was found in possession of 375 currency
notes which were recovered at his instance. The evidence of PW-30
shows his involvement in the trial. He is also involved in circulation
of currency notes.
9. Undisputedly both the applicants were on bail during trial.
There is no adverse report of misuse of facility of bail granted to the
applicants. Accused nos.1 to 3 were arrested on 12 th April 2014 and
they were found in possession of counterfeit currency notes of
Rs.1,000/- denomination. Apparently they have undergone sentence
imposed by them since they were not on bail. The applicants who
were impleaded as accused nos.4 and 7 were arrested subsequently
on 17th February 2014 and were arrested on 11th June 2014. As far
as applicant in Interim Application No.1052 of 2022 is concerned, he
has alleged that he was in possession of 1 currency note of
Rs.1,000/- denomination, which was utilized by him at subway
restaurant. Prosecution has examined PW-19 who was working as
manager in the said restaurant and PW-34 who was accompanying
the applicant (accused no.4) at the time when currency note was
utilized for purchasing sandwich. PW-19 has stated that he was
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working as manager at Subway Restaurant, Sakinaka, Andheri. On
10th April 2014 accused no.4 and other person had come to the
restaurant. The person who was accompanying accused no.4 namely
Bechulal Gupta had handed over currency note of Rs.1,000/-
denomination. He managed to return change amount to accused
no.4 and collected back currency note of Rs.1,000/- without knowing
that it is counterfeit currency note. On the next day it was realized
that it was counterfeit note. After few days accused no.4 was
brought to the restaurant and it was revealed that he is the person
who had handed over the fake currency note. He stated that he did
not see the recording recorded in CCTV footage installed in the
restaurant. The prosecution felt that witness was not deposing in
accordance with his supplementary statement dated 24 th April 2014
and hence sought permission to put leading questions. Even
answering the leading questions put by prosecution, the witness
stated that it did not happen that Tukaram Mane called him in the
restaurant and he and Mane had seen the CCTV footage on laptop.
In the cross-examination he stated that he did not state before police
at the time of recording his statement that the accountant had
disclosed to him that currency note of Rs.1,000/- denomination was
fake and that accused no.4 had come to the hotel for purchasing
sandwich and cost of sandwich was Rs.170/- and that the person
accompanying with accused had handed over currency note of
Rs.1,000/- and he was not having change and then managed for
change. He also stated that accused no.4 was handcuffed at the time
he was brought to restaurant. Thus, from the evidence of PW-19 it
can be seen that he had denied watching CCTV footage. He has also
stated that currency note was handed over by person accompanying
accused no.4 and not by accused no.4. PW-34 Shaikh Sakir Haider
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Ali is cousin of accused no.4. He had allegedly accompanied accused
no.4 at subway restaurant. He admitted that he had handed over
currency note to the cashier. According to him, the note was
returned to him saying that it is counterfeit. He disclosed the said
fact to accused no.4. Thereafter the cashier (PW-19) had talked with
accused no.4. Accused no.4 then paid the bill and remaining amount
was paid by cashier to accused no.4. Thereafter they returned home.
Thus, the fact that PW-34 has handed over the currency note to
cashier is not disputed. The question that arises for consideration
whether note was handed over by accused no.4 (applicant) to PW-34
before it was being parted to PW-19. In the cross examination PW-34
has stated that he can identify from CCTV footage if it is played. It
was shown to him. He admitted that it contains recording of accused
no.4 and another person namely Santosh Nadar who had visited
subway restaurant and handed over currency note to the cashier.
The cashier and accused no.4 were known to each other. The CCTV
footage also shows that cashier had returned the currency note to
accused no.4 and thereafter the accused no.4 had gone out of
restaurant. The subsequent recording of CCTV footage shows that
cashier had returned the said currency note to accused no.4.
Apparently there appears to be contradictory versions between PW-
19 and PW-34. The CCTV footage does not indicate that accused
no.4 had handed over counterfeit currency to PW-34 which was then
handed over to PW-19. PW-34 further stated in the cross-
examination that he had handed over the currency note to cashier by
taking it out from his pant pocket. The transaction of handing over
currency note by PW-4 to him is not recorded in the CCTV footage.
He volunteered that it was handed over to him out of restaurant. It
did not happen that change amount was handed over to him by
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cashier. The CCTV footage shows that change amount was returned
to PW-34 by cashier. Apparently recording in CCTV footage runs
counter to the deposition of this witness.
10. As far as applicant in Interim Application No.1078 of 2022 is
concerned. It is alleged that he was arrested subsequently and
interrogation of accused no.6 had revealed his involvement It is also
alleged that 375 currency notes were recovered from his office and
about 25 notes were circulated. PW-30 has deposed about the fact
that it conducts the business in the name of Shri Ashapuri Steel and
Hardware, Pune. He knows applicant-accused. He used to visit his
sop for purchasing articles. He had handed over some currency
notes in 1,000/- denomination. Thereafter notes were taken to the
bank for depositing them and it was revealed that they were fake
notes. In the cross-examination it is stated that he did not hand over
the bill or invoice. He did not have any documentary evidence that
accused no.7 has purchased any article from him or that he had paid
any amount worth Rs.2,200/-. He do not know the conversation
held between his father and bank employee. The police did not
make any enquiry with his father. During the trial he was granted
bail by Trial Court vide order dated 18th February 2015 on the
ground that information about currency notes was already received
by police and it is about whether the said recovery was recovery or
discovery/s.27 of Evidence Act. During the trial both the applicants
were also tried under the provisions of UAPA Act, which has resulted
in acquittal. The contention of accused no.7 is that there is no
cogent evidence to establish that said applicant was involved in
circulating counterfeit currency notes assuming that possession is
proved, it could be an offence u/s.489C of IPC, which is bailable in
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nature. The judgment of Trial Court has been assailed on several
grounds.
11. Both the applicants were on bail during trial. Considering all
the aforesaid aspects, case for suspension of sentence and grant of
bail is made out.
ORDER
(i) Interim Application Nos.1052 of 2022 and 1078 of 2022 are allowed and disposed of;
(ii) The sentence of imprisonment imposed vide judgment and order 8th March 2022 passed by Special Judge, UAPA, City Civil & Sessions Court, Greater Bombay in Sessions Case No.713 of 2014 is suspended and applicants are directed to be released on bail on executing PR bond in the sum of Rs.25,000/- each with one or more sureties in the like amount;
(iii) The applicants are permitted to furnish cash bail in the sum of Rs.25,000/- each for a period of eight weeks in lieu of sureties;
(iv) The applicant shall attend Trial Court once in six months on First Saturday of the month till disposal of the Criminal Appeal;
(v) In the event there are two consecutive defaults in attending the Trial Court, the Trial Court shall submit report to this Court;
(vi) In the event of default committed by the applicant in attending the Trial Court, the prosecution will be at liberty to prefer application for cancellation of bail.
(PRAKASH D. NAIK, J.) MST