Calcutta High Court (Appellete Side)
Abul Kalam Azad vs The State Of West Bengal on 22 January, 2019
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 222 of 2015
Abul Kalam Azad
Versus
The State of West Bengal
For the Appellant : Mr. Tapan Dutta Gupta
Mr. Lalit Mahato
Mr. Parvez Anam
For the State : Mr. Rana Mukherjee , A.P.P.
Mr. Arijit Ganguly
Heard on : 2nd August, 2018, 14th August, 2018 &
3rd October, 2018
Judgement on : 22nd January, 2019
Rajarshi Bharadwaj, J.:
This appeal has been preferred by the appellant assailing the judgement and order dated 25th March, 2015 passed by the learned Additional Sessions Judge, Fast Track Court-1st, Islampur, Uttar Dinajpur in Sessions case no. 25 of 2013 (Sessions Trial No. 66 of 2013), whereby the learned Judge convicted the appellant for commission of offence punishable under Sections 489B/489C of the 2 Indian Penal Code and sentenced him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/-; in default to suffer simple imprisonment for ten days for the offence under Section 489B of the Indian Penal Code and further sentenced the appellant to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for five days for the offence under Section 489C of the Indian Penal Code and the sentences were directed to run concurrently.
The prosecution case in brief is that one Shakespeare Kabir of Tungidighi Bazar under Karandighi P.S. lodged a written complaint with the said Police Station on 7th October, 2008 at 15.55 hours, stating inter alia that on the same day at about 3.00 p.m., accused Abul Kalam Azad came at his mobile shop, which was situated at Tungidighi Bazar and purchased one mobile phone on payment of Rs. 5,000/-. All the notes having denomination of Rs. 500/-, out of which one currency note having denomination of Rs. 500/- was suspected. The complainant having suspected the said note called his neighbour shop-holders, who also suspected the same and thereafter, Karandighi Police Station was informed. Sub-Inspector Nandan Kumar of Karandighi Police Station came to the spot and interrogated the accused. He found that the currency note was fake and made search in person of the accused. On being searched other 19 fake currency notes having denomination of Rs. 500/- were recovered from the possession of the accused. Thereafter, he prepared the seizure list and seized the said 20 currency notes in 3 presence of the witnesses. The accused was arrested and was taken to police station.
On the basis of the written complaint by Sub-Inspector Nandan Kumar, a criminal case, being Karandighi Police Station Case no. 303 of 2008 dated 7th October, 2008 was started against the accused/appellant under Sections 489B and 489C of the Indian Penal Code. The then I.C. of Police Station endorsed the case for investigation to S.I. A.C. Basak, who investigated the case and thereafter, S.I. Nandan Kumar further investigated the case and filed charge sheet against the accused, who pleaded not guilty and claimed to be tried.
Learned advocate for the appellant submitted that according to the prosecution, P.W.1, Shakespeare Kabir first detected one FICN (Fake Indian Currency Note) of Rs. 500/- from the possession of the appellant and in his presence 19 notes of FICN were also seized, but P.W.5 Nandan Kumar stated in his deposition that he searched, seized and arrested the appellant, which is contradictory to deposition of P.W.1. According to P.W,1, one Shilbabu made search and seizure but he was withheld by the prosecution to adduce evidence before the learned Court. Moreover, there was no disclosure from which part of body the same was discovered. The fact was sufficient to draw adverse presumption against the prosecution under Section 114(g) of the Evidence Act. He also submitted that the prosecution examined ten witnesses, out of which P.W.2, P.W.3, P.W.4 and P.W.7 were the seizure witnesses, who were post 4 occurrence witnesses and none had seen the alleged seizure, whereas Regulation 380 of the PRB mandates that the only eye witnesses could be the seizure witnesses. He further submitted that P.W.1 stated in his deposition that for purchasing a mobile the accused gave Rs. 4000/- to Rs. 5000/-, out of which one note having denomination of Rs. 500/- was not genuine, but the said Rs. 4000/- to Rs. 5000/- was not seized. P.W.3 Abdus Samad deposed that he had seen the ingenuine note of Rs. 500/- in the hand of the police. He also submitted that no specific question was put to the appellant under Section 313 of the Code of Criminal Procedure as to basic ingredients of Section 489B and 489C of the Indian Penal Code and there was no specific time mentioned by P.W.10 as to when he received the FICN. He lastly submitted that a person could not be convicted merely on the basis of presumption and therefore, the learned Judge has miserably failed to prove the guilt of the appellant beyond all reasonable doubt. Thus, the learned advocate prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Trial Judge.
Learned advocate for the State submitted that the appellant came to the shop of P.W.1 possessing fake currency notes with the intention to use the same notes as genuine, though he had knowledge to believe that the said notes were not genuine. He had also knowledge that the disputed notes were assembled with the genuine currency notes having denomination of Rs. 500/- and he tried to use the said notes for payment of purchasing mobile. He further submitted that P.W.5 stated in his deposition that police 5 received the information from shop-keeper that currency notes which were being paid for purchasing mobile phone, appeared to be not genuine and accordingly, P.W.5 proceeded from police station to work out over the information. P.W.5 searched the appellant and recovered twenty pieces of Indian Currency notes having denomination of Rs. 500/- from the possession of the appellant. The Investigating Officer proved the seizure list and seized articles. Accordingly, the learned Trial Judge rightly convicted the appellant for commission of offence under Section 489B of the Indian Penal Code for using the currency notes as genuine with full knowledge or intention that the same were forged or counterfeit notes. The learned Trial Judge also rightly convicted the appellant for commission of offence under Section 489C of the Indian Penal Code for having possession of forged or counterfeit currency notes. Thus, learned advocate for the State has prayed that the order of conviction and sentence may be upheld and the appeal may be dismissed.
Heard learned advocates for the parties and perused the impugned judgement.
The prosecution examined as many as ten witnesses and exhibited expert report, seizure list and other documents.
P.W.1, Shakespeare Kabir, the complainant in this case, deposed that he had a shop of mobile phone and mobile accessories. The accused had come to this shop to purchase mobile phone. The accused made payment to him and he gave one note having denomination of Rs.500/-. Seeing the note he suspected its 6 genuineness and called the adjacent shopkeepers and showed them the note. They also stated that the said currency note was forged. Thereafter, one of them informed the matter to the police and police came and checked the currency note. Then the police searched the accused Abdul Kalam Azad and found many more such notes having denomination of Rs. 500/- in his possession. The senior police officer arrived there and arrested the accused. Thereafter, one of his friends wrote the FIR and he put his signature. He then handed over the FIR to the officer of Tungidighi Police out-post, who was present at the spot. Police took possession of all notes having denomination of Rs. 500/- recovered from the accused and seized the same. P.W.1 stated that the accused paid him Rs. 5000/- towards the mobile phone, out of which one note having denomination of Rs. 500/- was suspected to be forged by him. He did not sell the mobile phone to the accused and he returned the currency notes.
During cross-examination P.W.1 stated before the Court that on getting information the In-Charge of Tungidighi police out post namely Shilbabu came to his shop and recovered the forged currency notes from the possession of the accused. He stated that Shilbabu seized the forged currency notes, arrested the accused and took him to the Police Station.
P.W.2, Akimuddin, who was a shop owner dealing with hardware articles, deposed that on the day of incident he found assembling of some people in front of the shop room of P.W.1 and he came to know that some forged currency notes were recovered from 7 the possession of the accused. Police prepared the seizure list in his presence and seized the notes to which he was one of the witnesses.
P.W.3, Abdus Samad, who was another shopkeeper, corroborated the evidence of P.W.2.
P.W.4, Purusatyam Agarwal, who was another shop holder of Tungidighi Bazar, corroborated the evidence of P.W.2 and P.W.3.
P.W.5, Nandan Kumar, Sub-Inspector of Police deposed that on the day of incident after having the information received from P.W.1, came from Karandighi P.S. at the shop room of P.W.1 and he found the accused in the shop room of P.W.1 with the currency notes and interrogated him. Thereafter, he made search in person of the accused and recovered from his possession 19 other fake currency notes having denomination of Rs. 500/-. He found the notes being forged and counterfeit and prepared the seizure list and made seizure of the said articles in presence of the witnesses. He further deposed that on 11th December, 2008 I.C. Karandighi P.S. directed him to take up investigation of Karandighi P.S. Case no. 303 of 2008 dated 7th October, 2008 due to transfer of previous Investigating Officer Anil Chandra Basak. After taking up further investigation of this case, he perused the case diary. Upon receipt of the notes he sent for expert examination to the Manager of Bhartio Reserve Bank Note Mudran Pvt. Ltd., Salbani, Midnapure.
P.W.6, Sujit Ghosh, another shopkeeper stated that on the date of incident he was present at the spot and he heard that one boy 8 came to the shop of Shakespeare Kabir and the boy was arrested in connection with fake currency note.
P.W. 7, Utpal Das, who had a shop of plywood, stated that he knew P.W.1 Shakespeare Kabir, who was a landlord of his shop. He further stated that one police officer had come to his shop and told him that some forged currency notes were recovered. He also told him that he had to put signature on a paper. He showed him the forged currency note having denomination of Rs. 500/-.
P.W.8, Dhiman Burman stated that he wrote the complaint as per instruction of P.W.1. After writing the complaint he read over and explained it to P.W.1.
P.W.9, Anil Chandra Basak, retired Sub-Inspector of Police stated in his deposition that on 7th October, 2008 he was posted at Karandighi P.S. as S.I. On that date the I.C. of Karandighi P.S. started Karandighi P.S. case no. 303 of 2008 on the basis of a written complaint. After recording the case, I.C. of Karandighi P.S. directed him to take up the investigation. During investigation he proceeded to visit the place of occurrence, prepared a sketch map and examined the available witnesses and recorded their statements. He further stated that before taking up investigation of the case, the accused person was arrested and brought to police station by Nandan Kumar.
P.W.10, Jahar Lal Pandit, retired D.G.M. of Bhartio Reserve Bank Note Mudran, Salboni stated in his evidence that in the year 2008-2009 he was posted as Assistant General Manager of R.B.I., 9 Salboni and on the relevant period he received 20 currency notes in sealed envelope for examination in reference to Karandighi P.S. case no. 303 of 2008 dated 7th October, 2008. The said currency notes were examined by him and found as fake currency notes. He submitted the report marked as Ext.5.
On perusal of the evidence on record it appears that the accused was apprehended and the articles which were recovered from his possession, were forged or counterfeit currency notes. P.W.5 stated in his evidence that police station received the information from shopkeeper that currency notes, which were being paid for consideration money of the mobile phone, appeared to be not genuine. The accused used the currency notes for purchasing mobile phone with the knowledge or intention that the same was forged or counterfeit. Learned Trial Judge convicted the appellant under Sections 489B and 489C of the Indian Penal Code, which read as under:
"489B - Using as genuine, forged or counterfeit currency notes or bank-notes - Whoever sells to, or buys or receives from, any other person 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 10 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 the instant case, it is evident that the appellant was in possession of fake Indian currency note and was trying to use the same as genuine, knowing it fully well that the said currency note was forged or counterfeit. The appellant had the knowledge that the disputed notes were resembled with the genuine currency notes having denomination of Rs. 500/- and taking that advantage he used the said notes for purchasing the mobile phone.
In view of the facts and circumstances of the case, the judgement and order passed by the learned Trial Judge is upheld.
Accordingly, the appeal is dismissed.
Copy of the judgement along with Lower Court Records be sent down to the trial court at once for necessary compliance.
Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Rajarshi Bharadwaj, J.) 11