Calcutta High Court (Appellete Side)
Md. Muktarul Islam @ Suman vs State Of West Bengal on 24 March, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherejee
CRA 261 of 2011
Md. Muktarul Islam @ Suman
-vs.-
State of West Bengal
For the Appellant : Mr. Sekhar Basu
Mr. Subhasish Roy
Mr. Usof Ali Dewan
Mr. Arup Sarkar
For the State : Mr. Monjit Singh, learned Public Prosecutor
Mr. S. Dutta
Heard on : 21.02.2014, 27.02.2014
Judgment on : 24.03.2014
Nishita Mhatre, J.:
1. The challenge in this appeal is to the judgement and order of the Additional Sessions Judge, 2nd Court, Malda, in Sessions Trial No. 20 of 2010. The appellant has been convicted for the offences punishable under Section 489B and 489C of the I.P.C. He has been sentenced to suffer rigorous imprisonment for eight years and to pay a fine of `4000/-, in default of which he would have to undergo simple imprisonment for four months for the offence punishable under Section 489B. For his conviction under Section 489C he has been sentenced to suffer four years rigorous imprisonment and to pay a fine of `2,000/-; in default of payment of fine to undergo simple imprisonment for three months.
2. The case of the prosecution in brief is that on 16th January, 2004 the appellant went to deposit an amount of `7,800/- in his Savings Bank Account in the Malda District Central Co-operative Banka Ltd. He delivered his pass-book bearing Account no. 17805, pay-in-slip and 16 notes of `500/- each. He sought to deposit the amount and asked for a refund of `200/-. The Cashier suspected that the currency notes were fake. He approached the Head Cashier of the bank to examine the currency notes. The Head Cashier tested the notes in a machine and it was detected that the currency notes were counterfeit. These counterfeit currency notes, pass-book and the pay-in-slip were returned to the accused who was then taken to the Branch Manager's cabin by the Cashier and Head Cashier. In response to the Manager's question, the accused stated that he obtained the currency notes from a relative in Bangladesh. He was detained in the bank and the police were informed. On arriving in the bank the police seized the fake currency notes, pass- book and the pay-in-slip from the accused. An FIR was lodged by the Branch Manager with the police. The seizure list, labels and fake notes were signed by the Branch Manager, the Cashier and the Head Cashier and also by the accused. The police took custody of the accused and the investigation was launched on the basis of the FIR lodged by the Branch Manager. The currency notes were sent to Central Forensic Science Laboratory (hereinafter referred to 'CFSL') for examination through the Sub-Divisional Judicial Magistrate, Malda. The report obtained by the police from the laboratory indicated that the notes were fake. On completion of the investigation a charge-sheet was submitted against the accused under Sections 489B and 489C of the IPC. The case was committed to the Sessions Court, Malda, where the accused was found guilty as charged and has been convicted and sentenced as aforesaid.
3. The prosecution has examined seven witnesses in support of its case. PW 1 is the Branch Manager, PW 2 the Cashier and PW 3 the Head Cashier. PWs 4, 5 and 6 are the villagers who know the accused. They have all been declared hostile. PW 7 is the Investigating Officer.
4. In his complaint which is treated as the FIR, PW 1 has stated that the accused handed over 16 currency notes of `500/- at the receiving counter of the branch to the Cashier. The notes were found to be fake. PW 1 invited the accused to his chamber where he disclosed that he had obtained these notes from a relative who lives in Bangladesh. The Branch Manager informed the police about the incident over the telephone at about 12.30 p.m. The FIR has been received at 1.30 p.m. by the police in the Main Branch of the Central Co-operative Bank Ltd for starting the case against the accused. In his examination in chief PW 1, the complainant has reiterated the contents of the FIR. The Branch Manager has admitted that on learning of the incident he kept the accused seated in the bank with the fake notes, his pass-book and pay- in-slip in the latter's possession. On the arrival of the police he lodged the FIR. According to this witness, the fake notes, pass-book and pay-in- slip were seized from the accused in his presence. He has spoken about appending his signature on all the notes and that the Head Cashier and Cashier had all signed on all those notes in his presence. The FIR was written by one Sankar Ganguli, a member of staff of the bank, as dictated by the Branch Manager. In his cross-examination he has stated that the police arrived at the bank at about 1.30 p.m. and that he submitted the FIR at about 2 p.m. to the police. They were present in the bank up to 3 p.m. He has further admitted that the police seized the fake currency notes from the accused, kept them in an envelope and left the bank. He was unable to say whether the envelope was closed nor could he give any explanation as to why the fake currency notes were returned to the accused while he was made to wait in the bank.
5. The Cashier has been examined as PW 2. He has stated that he suspected that the notes deposited by the accused were fake and, therefore, he took those notes to the Head Cashier to conduct a machine test on those notes. It was found that the notes were fake. According to him, he handed over the pay-in-slip and the pass-book also to the Head Cashier. He has admitted that he was not aware as to what answer the accused had given to PW 1 when asked about the source of the notes as he had returned to his counter. PW 2 is also a witness to the seizure. In his cross-examination he has deposed that after he handed over the fake currency notes to the Head Cashier he was not aware about what happened thereafter.
6. PW 3 was the Head Cashier of the bank. He has not been able to identify the accused. According to him, on examination of the notes with the help of the machine it was confirmed that they were fake currency notes. He has stated that the Branch Manager interrogated the accused, but he was not aware of what he had replied because he had returned to his seat. He is also a witness to the seizure of the fake currency notes, the pay-in-slip and the pass-book. In his cross-examination he has admitted that he was not aware of what happened after the fake notes were made over to the Branch Manager and the accused was sent to the Branch Manager's cabin. This witness has stated that the police left the bank at around 3.30 p.m.
7. PW 7, the Investigating Officer has deposed that the fake currency notes were seized from the possession of the accused in the bank along with one pass-book and one pay-in-slip. The fake currency notes which were seized from the accused were sent to the CFLS for examination on 5th February, 2004. The Report of the CFSL has been marked as Exhibit 8, and it indicates that the notes are indeed counterfeit. According to the Investigating Officer he reached the bank at around 2.15 p.m. and was present there till 5.05 p.m. The accused was arrested in the bank but there was no noting as to who made over the accused to him in the bank. He has admitted that the counterfoil of the pay-in-slip was in the pass- book which was seized, but there was no noting in this regard on the record. The witness has deposed that though the case was registered on 16th January, 2004, the counterfeit notes were sent to CFSL on 5th February, 2004. Between 16th January, 2004 and 5th February, 2004 the notes were kept in the Malkhana. But there was no noting in this regard either.
8. Mr. Sekhar Basu, learned Counsel appearing for the appellant, has submitted that the prosecution has failed to explain the delay in lodging of the FIR. He pointed out that the notes were tendered by the accused for being deposited at about 12.30 p.m. according to PW 1. The police arrived in the bank at 1.30 p.m. according to this witness. However, PW 7 the Investigating Officer has stated that he reached the bank at about 2.15 p.m. and that the FIR was handed over to him in the bank thereafter. The endorsement on the FIR indicates that it was received in the bank at 1.30 p.m. Mr. Basu, therefore, submitted that there was a discrepancy in the time as stated by PW 1 and the Investigating Officer. He has also submitted that the delay in lodging the FIR has not been explained by the prosecution. PW 1 has mentioned that the fake notes were seized by the Investigating Officer and kept in an envelope. There is no noting on record regarding the sealing and labelling of the envelope. Mr. Basu, therefore, submitted that there was no reason to believe that the notes which were sent to the CFSL for analysis were the notes which were actually seized from the accused. He also pointed out that the Investigating Officer had sent the currency notes for analysis to the CFSL after 10 days of the seizure. The notes were kept in the Malkhana without there being any record till they were sent to the CFSL. According to Mr. Basu, the possibility of the notes being tampered with at each stage cannot be rule out. Mr. Basu urged that there is no noting to indicate that the accused had culpable knowledge that the notes were counterfeit. According to the learned Counsel, the conduct of the accused demonstrates this fact as he had made no effort to leave the bank at any point of time after the notes were detected to be fake. Learned Counsel urged that mens rea must be proved and there is no evidence on record to indicate that the accused had knowledge that these notes were fake. Mr. Basu has relied on the judgments in the case of M. Mammutti -vs.- State of Karnataka reported in AIR 1979 SC 1705 and in the case of Umashanker -vs.- State of Chhattisgarh reported in AIR 2001 SC 3074 to support his submission that no presumption can be drawn that the notes found in possession of the accused were counterfeit. Specific questions have not been put to the accused in the examination under Section 313 of the Cr.P.C.
9. On a scrutiny of the evidence it is apparent that there is no corroboration among PWs 1, 2 and 3 as regards the information given by the accused with respect to the source of the fake notes. PW 1 has stated that he was informed by the accused that he had received those notes from a relative in Bangladesh. Both PW 2 and PW 3 have stated that they were not aware of the answer given by the accused to the query of PW 1 regarding the source of the notes. Thus, it is only PW 1 who has stated that the notes were received by the accused from a relative in Bangladesh. This allegation has been put to the accused while recording his statement under Section 313 Cr.P.C. and he has stated that the statement is false. To other questions put to him under Section 313 Cr.P.C. he has admitted that he had a savings bank account with the District Central Co-operative Bank Limited and that he took original notes for depositing them in the bank. He has also stated that he was forced to sign the currency notes in the police station.
10. It has been argued by the learned Counsel for the State that there is no cross-examination on behalf of the accused with respect to the statement made by the PW 1 that he was informed by the accused that he had received the fake notes from a relative in Bangladesh. Therefore, according to the learned Advocate for the State, the accused was well- aware of the source of these notes and also that the notes were fake. This submission of the learned Counsel is rather tenuous and unacceptable. Even assuming the appellant had mentioned the source of the notes there is no evidence on record to prove that he had culpable knowledge of the notes being fake.
11. It is not possible to accept the case of the prosecution for various reasons. According to the witnesses for the prosecution once it was detected that the notes were fake by running them through a machine, the accused was requested to meet the Branch Manager. He was returned the fake currency notes, his pass-book and the pay-in-slip. The accused remained in the bank till the police arrived on the scene. It is impossible to believe this story. Had the accused knowledge of the notes being fake when he went to deposit the same, he would continue to remain in the bank till the police arrived there. If the accused had the intention to pass off fake currency notes as genuine, he would have certainly fled from the bank once it was detected that the notes were counterfeit. Instead he continued to remain in the bank as requested by the bank staff and the Manager. There is no evidence on record to indicate that he was detained there forcibly. This would not be the natural conduct of a person who had culpable knowledge of the notes being counterfeit.
12. All the witnesses who were employees of the bank have stated that after the notes were detected to be fake they were returned to the accused together with his pass-book and pay-in-slip. If that was the case then there was no reason for the accused to continue sitting in the bank and wait to get arrested. Furthermore, the Investigating Officer has stated that he seized the notes from the accused. PW 1 has stated that after the seizure of the notes the police kept those notes in an envelope and left the bank. He could not say with certainty whether the envelope was closed. Thus, there was every opportunity for these notes to be tampered with after they were seized and before they were sent to the CFSL. It is surprising and unbelievable that when the bank found that the notes were fake by running them through a machine, the Branch Manager would hand over those fake notes to the accused. PW 1 has not been able to explain this conduct. Apart from this, PW 7, the Investigating Officer, has conceded that the notes were sent for examination to the CFSL twenty days after their seizure on 16th January, 2004. The notes were kept in the Malkhana without any record. No evidence has been produced on record to show that the envelope containing the notes was sealed and labelled. Therefore, there is every possibility that the notes were tampered with when they were kept in the Malkhana. Thus, the possibility of the notes which were sent to the CFSL not being the notes which were sought to be deposited by the accused in the bank cannot be ruled out.
13. Section 489B of the IPC speaks about the use of forged or counterfeit notes or bank notes as genuine with knowledge or having reason to believe the same to be forged or counterfeit. Similarly, 489C is attracted when a person is in possession of forged or counterfeit currency notes or bank notes having the knowledge or a reason to believe that they are forged or counterfeit. No presumption can be drawn about the mens rea of the accused as held in M. Mammutti (supra) and Umashanker (supra). In fact, the conduct of the accused is to the contrary. Had the accused the knowledge or any reason to believe that the currency notes were forged or counterfeit he would not have continued sitting in the bank till the police arrived there.
14. The statement of the Branch Manager PW 1 that the source of those notes as stated by the accused was from a relative in Bangladesh has not been corroborated by any other witness. Furthermore, when the accused was put that question in his examination under Section 313 of the Cr.P.C. he has denied that he had mentioned so to the Branch Manager. The emphasis placed by the learned Advocate for the State regarding the source of these notes being found to be relative in Bangladesh is of no consequence. The prosecution has to prove its case beyond reasonable doubt. There is no material on record to suggest that any steps were taken by the Investigating Agency to ascertain whether in fact these notes were sourced from Bangladesh as alleged by the Branch Manager. Even assuming these notes had been obtained from a relative from Bangladesh it cannot necessarily be inferred that the accused had the knowledge or any reason to believe that the notes were fake. No such presumption can be drawn.
15. In our view, therefore, the prosecution has failed to prove the charges levelled against the accused. The impugned judgment and order of the Sessions Court is set aside. The accused is set at liberty unless required for any case.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)