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Madhya Pradesh High Court

Smt. Vishakha vs The State Of Madhya Pradesh on 8 July, 2020

Author: Shailendra Shukla

Bench: Shailendra Shukla

1 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.44 OF 2019 (Smt. Vishakha and Others vs State of Madhya Pradesh) Indore, Dated 08.07.2020 Mr. Ravindra Upadhyay, learned counsel for the appellant No.2-Riyaz @ Pappu through Video Conferencing.

Mr. Prabhal Jain, learned public prosecutor for the non- applicant/State through Video Conferencing.

Learned counsel has made submissions on the application-IA No.2152/2020 for suspension of sentence of appellant No.2-Riyaz @ Pappu.

Learned counsel for the State was also heard. Learned counsel has referred to certain citations and they may be furnished for perusal.

The suspension application has been heard finally after perusal of citations.

The planks of submissions are as follows:-

(i) That the Investigating Officer (IO) and the complainant are same which vitiates the whole investigating process as per the Apex Court Judgment referred to.

(ii) That it has not been determined as to whether the currency notes seized from the appellant was counterfeit note because no such report was obtained from CFSL Calcutta.

(iii) That mere marking of a document (Ex.P/28) does not amounts to proof of document.

(iv) That there is no seizure of any machine for counterfeiting the notes.

Order to follow:

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.44 OF 2019 (Smt. Vishakha and Others vs State of Madhya Pradesh) Later on:

Certain citations have been made available which have been found proved against the appellant-Riyaz @ Pappu under Sections 489-A/34, 489-B/34, 489-C/34 of IPC and Section 420 read with Section 34 of IPC and has been sentenced to seven years of RI along with fine of Rs.1000/- with further default stipulations pertaining to under each of the aforesaid offences.

One counterfeit note of denomination of Rs.1000/- currency note was seized from the possession of appellant No.2-Riyaz.

Learned counsel for the appellant has referred to a citation of Megha Singh vs State of Haryana AIR 1995 SC 2339 in which it has been laid down that the same person cannot be a complainant and also investigator. In this matter, Head Constable who had searched and recovered pistol and cartridges from the accused has also registered an FIR as a complainant and went on to investigate the matter. Learned counsel also submits that FIR and Investigation has been made by one person namely Mr. M.S. Raghuvanshi (PW/11) who was a Sub-Inspector in this case.

The matter was perused.

Mr. M.S. Raghuvanshi (PW/11) has registered an FIR on the basis of complaint Ex.P/17 namely Mahendra Kumar Jain. Thus, the aforesaid citation is not applicable because the complainant is different from the Investigator in the 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.44 OF 2019 (Smt. Vishakha and Others vs State of Madhya Pradesh) present case. Reference has also been made to a citation of Raju Dubey vs State of Madhya Pradesh 1998 1 JLJ 236 in which it has been laid down that the Arresting Officer should not be the Investigating Officer himself. A perusal of this citation shows that in this citation it has been mentioned that the Apex Court in a recent judgment has held that the Arresting Officer should not be a Investigating Officer himself. However, the Apex Court judgment has not been cited and therefore no assistance from this citation can accrue to the appellant.

Learned counsel has also submitted that proof of notes seized from the appellant was counterfeit or not should have been proven by CFSL Calcutta. However this submission was considered.

Ex.P/28 is the report of Technical Officer of the Bank Note Press at Dewas and the report has been sent by Counterfeit Note Analysis Division of the Bank Note press. This scientific report is admissible under Section 292 of Criminal Procedure Code, 1973.

Learned counsel for the appellant submits that this report is barely exhibited and the same does not amount to admissibility of the report. The citation of AIR 1971 SC 1865 has been submitted in which it has been laid down that mere marking of a document does not dispense with its proof. This submission of the citation is not acceptable as Section 292 Cr.PC provides that "any document which is purporting to be 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.44 OF 2019 (Smt. Vishakha and Others vs State of Madhya Pradesh) a report under the hand of any Officer of any Note Printing Press..........may be used as an evidence in any inquiry, trial or other proceedings under the Court although such Officer is not called as a witness".

Yet another citation of Chiku @ Yogendra vs State of Madhya Pradesh MPWN 1997 Vol.-2 NOTE No.192 has been furnished in which it has been laid down that report of the Director of Forensic Science Laboratory cannot be a basis for conviction in the absence of report of Serologist. This citation also does not apply because serology is the scientific study of serum and other body parts which is not the case here. The last submission is that only allegation against the appellant No.2-Riyaz @ Pappu is that he has been found to be in possession of one single counterfeit note and it has not been found proved that he was counterfeiting the currency notes. This submission was considered.

Although no machine for counterfeit notes have been seized from appellant No.2 but he has also been convicted for using as genuine forged currency notes and also he has been found to be in possession of forged or counterfeit currency notes and has cheated the complainant as well.

Section 489-B of IPC provides for maximum punishment of ten years of imprisonment whereas Section 489-C provides for maximum seven years of imprisonment so also Section 420 IPC prescribes for maximum seven years of imprisonment.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.44 OF 2019 (Smt. Vishakha and Others vs State of Madhya Pradesh) After duly considering the submissions, no case is made out for grant of suspension of sentence to appellant No.2-Riyaz @ Pappu. Accordingly, application-IA No.2152/2020 stands rejected. However, the appellant No.2 shall have the liberty to file fresh application after completion of half of his jail sentence (excluding remission) imposed upon him.

List the appeal for final hearing in due course.

(SHAILENDRA SHUKLA) JUDGE Arun/-