Delhi District Court
State vs . Bhagat Singh on 30 April, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.25/1/13
FIR No. 220/11
U/s 489B IPC
PS Dwarka South
State
Vs.
Bhagat Singh s/o Gyan Singh
.......... Accused
Challan filed on : 18.10.2012
Reserved for order on : 25.04.2014
Judgment delivered on :30.04.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 02.08.2011 accused Bhagat Singh appeared before the court of Sh. Sushil Anuj Tyagi, Ld. MM in response to a traffic challan of vehicle no. DL 1 LVA 7244 where a fine of Rs.4200/ was imposed upon him. The accused deposited the fine amount with reader of the court who noticed that one note of Rs.500/ deposed by the accused is fake. He informed the Ld. Presiding Officer who passed an order State Vs. Bhagat Singh FIR no. 220/11 Page No.1 of 15 Ex.PW3/A and directed naib court Ct. Surinder to take the accused to PS alongwith fake currency noted. Naib Court took him to PS and produced the accused alongwith said note to ASI Ram Prasad. ASI Ram Prasad made endorsement Ex.PW9/A on the said note and got the case registered. Thereafter accused was arrested and his personal search was conducted. The fake currency note was seized. Accused was interrogated and he made his disclosure statement. The fake currency note was sent to FSL. After completion of investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 07.03.2013.
3. The charge against accused Bhagat Singh was framed u/s 489B IPC on 03.04.2013 to which the accused pleaded not guilty and claimed trial. Hence the case was fixed for Prosecution Evidence.
4. The prosecution, in order to prove its case against accused Bhagat Singh, in all has examined as many as 9 witnesses. State Vs. Bhagat Singh FIR no. 220/11 Page No.2 of 15
5. PW1 Ct. Surender Singh has deposed that he was on duty in the court on 2.8.2011 where accused Bhagat Singh appeared in traffic challan of vehicle no. DL 1 LVA 7244 and fine of Rs.4200/ was imposed.He deposited cash of RS.4200/ with Sh. Ram Bhagat Reader and on currency note of Rs.500/ was fake currency note in the said cash. He as well as reader of the court informed the Ld.MM who directed him to take the accused to PP alongwith currency note. He took the accused with him to PP and a case was registered. Accused was arrested vide memo Ex.Pw1/A and his personal search was conducted vide memo Ex.PW1/B. He identified the fake currency note. In cross examination he has stated that the reader of the court had first shown the note to the Presiding Officer of the court. Thereafter Presiding Officer returned the same to reader. He was standing adjacent to Presiding Officer from 10 a.m to 10.45 a.m. He denied the suggestion that the fake note did not appear to be a fake apparently with naked eyes.
6. PW2 Ram Bhagat Goel has deposed that he was posted as Reader in Traffic Court. Accused appeared in the court and a fine of Rs.4200/ was imposed upon him. He deposited the same State Vs. Bhagat Singh FIR no. 220/11 Page No.3 of 15 with him. He noticed that amongst the notes, one note of Rs.500/ appeared to be fake. He informed the Presiding Officer who directed the Naib Court to take the accused to PP. He identified the note Ex.P1. In cross examination he has stated that the accused had deposited eight currency notes of RS.500/ and two currency notes of Rs.100/ in denomination. He denied the suggestion that currency note Ex.P1 did not appear to be fake with naked eyes. He denied the suggestion that currency note is not a fake one. He denied the suggestion that the accused did not give the note Ex.P1 to him or that it was given by some other accused of other challan. He admitted that the other currency notes given by the accused were genuine.
7. PW3 Sh.Sushil Anuj Tyagi has deposed that on 02.08.2011 while he was Presiding Over the Traffic Court, accused Bhagat Singh appeared and he imposed fine of Rs.4200/. The reader informed him that Bhagat Singh had given him a fake currency note and he was also shown the said note. On this accused was taken into custody and he was handed over to chowki incharge. alongwith fake currency note. His order in this respect is Ex.PW3/A. In cross examination, he has deposed that only note Ex.P1 was shown to him by the reader. He was told by the reader that the note is fake. He State Vs. Bhagat Singh FIR no. 220/11 Page No.4 of 15 cannot say whether this note Ex.P1 is fake one or not.
8. PW4 Vijender Singh is the witness from FSL and he has deposed that on 29.02.2012 he examined note no. 7BG 359463 and prepared his detailed report Ex.PW4/A. He identified the note Ex.P1. In cross examination he has stated that he is not sure that the currency note.Ex.P1 under examination was a counterfeit note. The note Ex.P1 cannot be identified as fake and counterfeit by naked eye.
9. PW5 ASI Manjeet Singh has deposed that on 2.8.2011 he recorded the FIR of this case. The copy of FIR is Ex.5/A.
10. PW6 Ct. Virender has deposed that on 17.7.2012 he went to FSL and brought the report of FSL which was given to him alongwith currency note. The seizure memo of envelope containing currency note is Ex.PW6/A.
11. PW7 HC Lalu Ram Meena has deposed that on 2.8.11 accused was arrested by the IO vide memo Ex.Pw7/A and his personal search was conducted vide memo Ex.PW7/B. State Vs. Bhagat Singh FIR no. 220/11 Page No.5 of 15
12. PW8 ASI Shiv Naresh has deposed that on 17.7.2012 Ct. Virender brought the FSL report alongwith envelope containing currency note and handed over to him which he seized vide memo Ex.PW6/A. He has also stated that the public witness Deepak Kumar is not available and residing at the given address and after great persuasion, he is unable to search his proper & fresh whereabouts. So he is unable to execute the summons upon him.
13. PW9 ASI Ram Prasad is the IO of this case and he has deposed that on 2.8.2011 accused brought by Ct. Surender with currency note of Rs.500/ and order of Ld. MM. He made endorsement Ex.PW9/A and got the case registered. He arrested the accused and conducted his personal search. He seized the fake currency note vide memo Ex.PW1/A. He interrogated the accused and recorded his disclosure statement which is ExPW1/B. He prepared the site plan Ex.PW9/B. He deposited the case property in the malkhana and also sent the same to FSL on 26.9.2011. In cross examination he has stated that it is correct that he does not know whether the recovered currency note was genuine or fake. He recorded the statement of Deepak Kumar during the investigation. He denied the suggestion that he has not conducted the investigation State Vs. Bhagat Singh FIR no. 220/11 Page No.6 of 15 fairly and properly.
14. After completion of evidence of the prosecution, statement of accused u/s 313 Cr.PC was recorded in which the accused has stated that he has been falsely implicated in this case. He has no knowledge about the said fake currency note from his naked eye. The whole amount was given to him for deposit in the court against the challan by the cashier of his employer.
15. I have heard the arguments from the Ld. Counsel for the accused as well as Ld. APP for the State. During the course of arguments Ld. counsel for the accused has stated that the prosecution has failed to prove its case and that mens rea is necessary for the offence. He has submitted that the accused has himself not brought cash in question but it was given by the cashier of his employer to deposit against the challan. He has no knowledge about the said note to be forged one. He further submits that there is nothing on record which shows that accused has any mens rea to commit the offfence. Ld. Counsel prayed that the accused may kindly be acquitted. .
16. On the other hand Ld. APP for the State has submitted State Vs. Bhagat Singh FIR no. 220/11 Page No.7 of 15 that there is sufficient evidence to convict the accused in this case and he has also submitted that the accused has used the fake currency note in the court. So, accused may kindly be convicted.
17. On analyzing the testimonies of witnesses, it is revealed from the order dated 02.08.2011 passed by Sh Sushil Anuj Tyagi, Ld.MM that accused Bhagat Singh deposited fine of Rs.4200/ against challan of vehicle no. DL 1VA 7244 and one currency note of Rs.500/ bearing no.7BG 359463 appeared to be counterfeit and thereafter he was sent to the chowki Incharge for further action.
18. In statement recorded u/s 313 Cr.PC., it has been admitted fact by the accused that he had appeared before the court and deposited the fine. Therefore, it is clearly admitted by him that the currency note in question was deposited by him. It is not the case that the accused had deposited this note alone. But he has deposited the currency note in question with other notes. The plea taken by the accused is that he had obtained a sum of Rs.4200/ including the alleged note from cashier of his previous transport company named Ajay Travels and cashier name is Deepak Kumar on 01.08.2011. In case Ponnusamy Vs. State 1997 SCC (Cri) 217, it is stated that State Vs. Bhagat Singh FIR no. 220/11 Page No.8 of 15 when the charge against the accused is that he purchased paddy from a peasant on payment of forged currency notes and could not explain wherefrom he received such forged currency notes and remained silent on that point in trial court, the prosecution case against him is strengthened by his silence and not offering any explanation as to how he got such forged currency notes. So, he is guilty u/s 489B IPC for using forged currency notes as genuine.
19. However, in the present case the accused has specifically stated that an amount of Rs.4200/ was given to him by the cashier of his employer for depositing the same against the payment of challan.
20. In case law Umashanker Vs. State of Chhattisgarh 2002 SCC (Cri) 758 it is stated that mens rea of offences u/s 489B and 489C is 'knowing or having reason to believe the currency notes or bank notes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another persons or otherwise trafficking in or using as genuine forged or counterfeit currency notes or bank notes, is not enough to constitute offence u/s 489B, IPC. So also possessing or even intending to use any forged or State Vs. Bhagat Singh FIR no. 220/11 Page No.9 of 15 counterfeit currency notes or bank notes is not sufficient to make out a case u/s 489C in the absence of the mens rea.
21. It is observed in case Umashanker Vs. State of Chhattisgarh, AIR 2001 Supreme Court 3074, it is observed in head note that : 'Penal Code (45 of 1860) Ss.489B, 489C Evidence Act (1 of 1872), S.4 Offences in respect of forged or counterfeit currency notes or bank notes - Mens rea of offence u/s 489B and 489C is 'knowing or having reason to believe that currency notes or bank notes are forged or counterfeit' - Buying or receiving from another person or otherwise trafficking in or using as genuine or also possessing or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case u/s 489C in the absence of the mens rea - Accused 18 years old student - alleged to have paid fake currency note of Rs.100/ to shop keeper - 13 more such fake currency notes were received from him - No material brought on record to show that accused had requisite mens rea - Merely on the basis of evidence of shop keeper and other witnesses that they were able to make out that currency note alleged to have been given to shopkeeper was fake, mens rea cannot be presumed - No specific question with regard to currency note being fake State Vs. Bhagat Singh FIR no. 220/11 Page No.10 of 15 put to accused - Accused entitled to acquittal'. 22 In the present case, only one note was allegedly found to be counterfeit. But no further recovery was effected from the accused. In the disclosure statement Ex.PW1/B of accused, he has not stated that he used to use the fake currency notes as genuine at different places or that he is in possession of further notes and he can get the same recovered which clearly indicate that the accused is not in the habit of using fake currency notes as genuine. A perusal of the provisions shows that mens rea of offences u/s 489B and 489C is 'knowing or having reason to believe the currency notes or bank notes are forged or counterfeit'. Without the afore mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or bank notes is not enough to constitute offence u/s 489B IPC. No material has been brought on record by the prosecution that the accused had the requisite mens rea. Since the accused had taken the cash from the cashier of his employer to deposit against the challan,it seems that he has no knowledge or reason to believe that the currency note was forged or counterfeit.
23. The question, however, remains as to whether the State Vs. Bhagat Singh FIR no. 220/11 Page No.11 of 15 currency note, which were alleged to be fake, was really fake or not. In this regard, prosecution has examined PW4 Vijender Singh, Sr.Scientific Officer (Documents), FSL, Rohini, as an expert.
24. It is worth noticing that from the examinationinchief of PW4 the prosecution did not elicit anything to show that the currency note in question was counterfeit. Pw4 has stated that the currency note under examination was indicating the counterfeit nature. It is clear from his examination in chief that he is not sure and certain that the note in question was counterfeit. He has also no where stated that he has been trained to examine the fake currency notes. Further in cross examination conducted by the defence, PW4 has clearly stated that he is not sure that the currency note Ex.P1 under examination was a counterfeit note. The note Ex.P1 cannot be identified as fake and counterfeit by naked eye. The cross examination of PW4 demonstrate that the expert examined by the prosecution is not sure that the currency note Ex.P1 is a counterfeit note.
25. Sec.489B contemplates - Using genuine, forged or counterfeit currency notes or bank notes - Whoever sells to, or buys State Vs. Bhagat Singh FIR no. 220/11 Page No.12 of 15 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.
26. What is, however, of greatest significant to note, in the present case, is that in our criminal jurisprudence, the burden to prove the charge against the accused beyond all reasonable doubt rests entirely on the prosecution. The falsity of the defence case cannot be used a substitute for proof of the ingredients of the offence with which the accused is charged. In the case at hand, even if, for a moment, it is assumed that the allegedly seized currency note belong to, and was in possession of, the accused, the fact still remains that it was the bounden duty of the prosecution to prove beyond all reasonable doubt that the note was fake. But in the present case prosecution has failed to prove on record that the note in question was a fake currency note.
State Vs. Bhagat Singh FIR no. 220/11 Page No.13 of 15
27. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
28. In the case at hand, in the face of what have been pointed out above, there was no convincing and conclusive evidence, far less proof, that the said currency note was fake one. At any rate, in the face of the facts, as emerged from the evidence on record and the law relevant thereto, the accused is ought to have accorded the benefit of doubt.
29. In the result and for the reasons discussed above, I therefore give the benefit of doubt to accused Bhagat Singh. He is acquitted in this case for the commission of offence punishable u/s State Vs. Bhagat Singh FIR no. 220/11 Page No.14 of 15 489B IPC.
30. Accused is on bail in this case. He is directed to furnish personal bonds in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.P.C.
File be consigned to record room.
Announced in the open Court on 30.04.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Bhagat Singh FIR no. 220/11 Page No.15 of 15