Punjab-Haryana High Court
Darshan Lal vs State Of Haryana on 5 January, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Appeal No. 1903-SB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1903-SB of 2010
Date of decision: 05.01.2012
Darshan Lal ...Appellant
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Rishu Mahajan, Advocate for Mr. Harkesh Manuja, Advocate for the appellant.
(in Crl. Appeal No. 1808-SB of 2010) Mr. Ashit Malik, Advocate for the appellant.
(in Crl. Appeal No. 1903-SB of 2010) Mr. Yash Pal, Advocate for the appellant.
(in Crl. Appeal No. 2009-SB of 2010) Mr. Bipan Ghai, Senior Advocate with Mr. Deepak Garg, Advocate for the appellant.
(in Crl. Appeal No. 2033-SB of 2010) Mr. Sumanpreet Aulakh, Advocate for Mr. Jagmohan Ghuman, Advocate for the appellant.
(in Crl. Appeal No. 2477-SB of 2010) Ms. Sushma Chopra, Addl. A.G., Haryana, for the State.
RANJIT SINGH J.
Through this order five appeals i.e. Crl. Appeal Nos. 1808-SB, 1903-SB, 2009-SB, 2033-SB of 2010 and 2477-SB of 2010 are disposed of as the appellants herein have been jointly tried but have chosen to file separate appeals.
Criminal Appeal No. 1903-SB of 2010 2
PW-9, Rajinder Singh Inspector received secret information that Darshan Lal and Shiv Kumar were travelling in bus coming from Sanoli road side and that they were having fake currency notes, which they were trying to circulate in the market. On the basis of this secret information, PW-9 started waiting and saw two boys alighted from a bus. On receipt of signal from the informer, two boys were apprehended with the help of police men. On inquiry, they disclosed their name as Darshan Lal and Shiv Kumar. PW-9 conducted search of Darshan Lal during which two counterfeit currency notes of ` 1000/- denomination each and two counterfeit currency notes of ` 500/- denomination each were recovered from the pocket of Darshan Lal. These currency notes were put in envelop and sealed with seal 'RS'. Search of Shiv Kumar was also conducted, which led to recovery of two counterfeit currency notes of ` 1000/- denomination each and six counterfeit currency notes of ` 500 denomination from the pocket of his trouser. These currency notes were also put in envelop and sealed with seal 'RS'. Seal after use was handed over to Assistant Sub Inspector, Ashok Kumar. Currency notes were taken in possession vide recovery memo Ex. PO. Thereafter, PW-9 sent ruqa to police station through Constable Mahesh and so formal FIR Ex. PB was registered by Assistant Sub Inspector Mahabir Singh. PW9 also prepared a site plan of the place of occurrence.
Though PW-9 further interrogated accused Shiv Kumar and Darshan Lal. Shiv Kumar, made a disclosure statement Ex.PQ whereas Darshan Lal statedly made a disclosure statement Criminal Appeal No. 1903-SB of 2010 3 Ex. PR. PW9 also recorded the statements of witnesses under Section 161 Cr.P.C. The accused were produced before the Court. Subsequently, the accused Shehnawaj was arrested from village Kairana, who on interrogation made a disclosure statement Ex.PM.. One Brijesh was also arrested from Gohana Road, Panipat. He was also subjected to interrogation when he made disclosure statement Ex. PN. Accused Vinod accused was arrested from the railway road, Panipat. He also made disclosure statement Ex. PE. In pursuance to the disclosure statement made by the accused, Shehnawaj who was subsequently arrested, two counterfeit currency notes of ` 500/- denomination each, were recovered. Besides one Nokia mobile phone was also taken in possession. The disclosure statement made by Vinod Kumar led to recovery of one counterfeit currency of ` 500/- denomination. This was also sealed and taken into possession. The disclosure statement of Brijesh led to recovery of one fake currency note of Rs. 500/- denomination. On this basis, all the appellants were put to trial for offences under Sections 489-B and 489-C IPC.
The prosecution examined as many as 10 witnesses. All are police officials. The appellants did not examine any witness in their defence. All the incriminating circumstances appearing in evidence was put to them under Section 313 Cr.P.C. The appellant denied the evidence and the allegations alleged against them and pleaded their false implication. On the basis of the evidence, all the appellants were convicted for offence under Section 489-B as well Section 489-C IPC and have been sentenced to undergo rigorous Criminal Appeal No. 1903-SB of 2010 4 imprisonment for a period of 7 years coupled with fine of Rs. 2000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for a period of two months. For their conviction for offence under Section 489-C IPC, the appellants were directed to undergo rigorous imprisonment for a period of three years coupled with fine of Rs. 1000/- each and in default they were directed to undergo one month rigorous imprisonment to each. All the appellants have, therefore, filed the above noted appeals to impugn their conviction and the sentence so imposed.
I have heard the counsel for the appellant appearing in the respective appeals. As per the counsel, the conviction is primarily based on the evidence of PW-9. He was the police officer, who had intercepted appellants Darshan Lal and Shiv Kumar while they alighted from bus and deposed about the recovery of fake currency notes from them. Number of fake currency notes recovered from them has already been noticed above. The disclosure statements made by them before this police officer have led to arrest of remaining three accused-appellants. The recovery of currency notes is attributed to them on account of their respective disclosure statements made before PW-9.
Counsel for the appellants would submit that there is no independent evidence led by the prosecution. The submission is that even if the prosecution evidence is believed in totality, which would only prove the recovery of some currency notes and the evidence does not show if the appellants in any manner were selling, buying or receiving or otherwise trafficking in or using as genuine forged Criminal Appeal No. 1903-SB of 2010 5 counterfeit notes or bank notes knowing the same or believing it to be fake. In short, the plea is that no offence under Section 489-B could be established on the basis of evidence. It is stated that mere possession of forged and counterfeit currency notes, is the offence under Section 489-C IPC. This section provides that whosoever has in his possession any forged or counterfeit notes or bank notes knowing or having reason to believe it to be counterfeit and intending to use the same as genuine or that it may be used as genuine shall be punished with the imprisonment as prescribed. The mere possession of currency notes with the knowledge or where there are reasons to believe that the same currency notes were forged one or counterfeit and was intended to be used is made punishable under Section 489-C IPC.
Counsel for the appellants has submitted that mens rea is an essential ingredient of offence under Section 489-B IPC. Even in case of possession, where there is no evidence of any use or where evidence in regard to the knowledge being there on the part of accused persons, the offence under Sections 489-B or 489-C IPC may not be established. In this regard, reference is made to Umashanker v. State of Chhattisgarh, (SC) 2001 (4) RCR (Criminal) 444. In this case, the Hon'ble Supreme Court has observed as under:-
" A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489- C is, "knowing or having reason to believe the currency- notes or bank notes to be forged or counterfeit". Without Criminal Appeal No. 1903-SB of 2010 6 the afore-mentioned mens rea selling, buying or receiving from another person or otherwise tranfficking in or using as genuine forged or counterfeit currency-notes or bank- notes, is not enough to constitute offence under Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency-notes or bank- notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court,however, completely missed this aspect. The learned trial judge on the basis of the evidence of P.W.2, P.W.4 and P.W. 7 that they were able to make out that currency note alleged to have been given to P.W. 4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 18 year old student. On the facts of this case the Presumption drawn by the trial court is not warranted under Section 4 of the Evidence Act. 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 Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B Criminal Appeal No. 1903-SB of 2010 7 and 489-C of I.P.C. and acquit him of the said charged [see : M. Mammutti v. State of Karnataka, AIR (1979) SC 1705."
On the basis of evidence, it is now to be seen whether the prosecution had succeeded in proving the offences alleged against the appellants under Sections 489-B and 489-C IPC or not. The evidence of the prosecution is to the effect that currency notes were in possession of two of the appellants and these were recovered by the police officer i.e. PW-9. If there had been any valid explanation with the appellants that they have come in possession of these currency notes, which are found to be fake innocently, they were bound to disclose so. All the appellants merely pleaded their false implication. Mere possession, in the absence of explanation in that regard, would be sufficient to establish that the possession of these fake currency notes were consciously with the appellants. Their conviction for offence under Section 489-C, therefore, is justified. However, the counsel for the respondent/State has not been able to draw my attention to any part of the evidence, which would show or would indicate that the appellants had resorted to selling, buying or receiving of these currency notes found in their possession from any other person as is the requirement of section 489-B IPC. The prosecution, apparently, thus has not succeeded in proving the offence under Section 489-B IPC. There may be a suspicion even a strong one against the appellant that they had earlier bought or may have been indulging in selling or buying of counterfeit notes but suspicion, however, strong is not a substitute for proof. Criminal Appeal No. 1903-SB of 2010 8
The observation made by the trial Court on the basis of judgment in the case of Ponnuswamy v. State, (SC) 1995 (3) R.C.R. (Criminal) 427 cannot be read to mean laying down any ratio of law that mere possession would be sufficient to establish that offence under Section 489-B IPC was made out. To appreciate this, it would be appropriate to notice the entire short judgment which is as under:-
" The verdict of the three Courts below is similar convicting and keeping maintained the convictions of the appellant under Sections 489-B and 420 of the Indian Penal Code. The case of the prosecution against the appellant is that he had purchased paddy from a peasant on payment of 130 forged currency notes of Rs.100/- denomination. On the arrest of the appellant, further forged currency notes were alleged to have been found in his possession for which he had to face a trial separately. All the same, the appellant had no explanation to offer as to wherefrom had he obtained those forged currency notes. Silence on the part of the appellant in such circumstances would by itself be a telling circumstance which would weigh against him in the consideration of the prosecution evidence led against him. In these circumstances, we are of the view that the convictions recorded deserve no alteration and equally there is no scope for reduction of sentence. Maintaining the convictions and sentences of the appellant, we dismiss Criminal Appeal No. 1903-SB of 2010 9 this appeal.
Appeal dismissed."
It is, thus, clear that this judgment would not lay down any ratio of law that mere possession would be enough to establish offence under Section 489-B IPC. This appears to be passing of observation made while dismissing the Special Leave Appeal by the Hon'ble Supreme Court.
The essential ingredient of offence under Section 489-B IPC are as under:-
"498-B. 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."
In order to succeed, the prosecution has to show or to lead evidence to establish that the appellants had either sold or bought or received from any other person these currency notes for use as genuine which is found to be forged or counterfeit currency and that this the appellant knew or had reason to believe that the same were forged. It may be that the appellants knew or had reason to believe this currency to be counterfeit or forged but certainly evidence is lacking in regard to the selling on their part or buying or Criminal Appeal No. 1903-SB of 2010 10 receiving the same.
To show this aspect, the State counsel did make an attempt to draw my attention to the disclosure statements recorded but these statements being made to police officer can only be legally taken into consideration to the extent of recovery and the contents otherwise where some admission or confession is made would not be admissible in evidence. These statements concededly are not available in evidence on record.
The conviction of the appellants under Section 489-B IPC, therefore, cannot be sustained and the same is set aside. The conviction of the appellants under section 489-C is upheld and so also the sentence imposed for their conviction under Section 489-C, which is just and adequate and would not call for any interference. The appeals are partly allowed to the above extent.
January 05, 2012 ( RANJIT SINGH ) rts JUDGE