Bombay High Court
Yadav S/O. Bajirao Lahane vs The State Of Maharashtra on 7 February, 2019
Author: K.K. Sonawane
Bench: K.K. Sonawane
1 927-CriA-353-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 353 OF 2019
IN APEAL/88/2019
DATTATRAYA S/O. MANIKRAO VEDPATHAK
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Anand P. Bhandari
APP for Respondent : Smt. D. S. Jape
...
CRIMINAL APPLICATION NO. 375 OF 2019
IN APEAL/90/2019
YADAV S/O. BAJIRAO LAHANE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. R.N. Dhorde h/f Mr. Vikram R. Dhorde
APP for Respondent : Smt. D. S. Jape
...
CRIMINAL APPLICATION NO. 329 OF 2019
IN APEAL/79/2019
SHAIKH AKBAR GHULAM NABI AND ANR
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicants : Mr. M. W. Khan
APP for Respondent : Smt. D. S. Jape
...
CORAM : K.K. SONAWANE, J.
DATED : 7th FEBRUARY, 2019 Order :-
The points to be determined in all these applications are centered on the issue of suspension of substantive sentence of imprisonment imposed on the applicants-accused and to enlarge them on bail pending the appeal, therefore, all these allied applications are dealt with simultaneously for its adjudication on merit by this common order.
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2. Factual matrix of the matters in brief is that, on 08-10-2011, the first informant - Mr. Rutuparna Kulkarni, Branch Manager of the ICICI Bank, Tilkanagar, Aurangabad, lodged report that there was current account of India Bulls Pvt. Ltd. in his Bank and the employees of Secru Trance India Pvt. Ltd. used to deposit cash amount carried from the office of India Bulls Pvt. Ltd. It has been alleged that on 07-10-2011 at about 3.30 p.m. the Cash Officer of Secru Trance India Pvt. Ltd., namely, Mr. Dattatraya Vedkpathak i.e. accused No.1 tendered cash amount of Rs. 2,22,000/- for its deposit in the current account of India Bulls Pvt. Ltd. The concerned Cashier put all currency notes in the Note Sorting Machine for verification and surprisingly "18" currency notes of Rs.1000/- denomination were detected as fake and counterfeit notes. On enquiry by Bank Manager, accused Mr. Vedpathak, employee of the Secru Trance India Pvt. Ltd divulged that the currency notes were carried from the Branch Office of the India Bulls Pvt. Ltd. The matter was discussed with the concerned persons including accused and eventually, Branch Manager preferred to lodge report to the Police for penal action against culprit.
3. Pursuant to FIR of Mr. Kulkarni, Police of Jawahar Police Station registered Crime No. 145 of 2011 under section 489-B read with Section 34 of the Indian Penal Code (for short "IPC") and set the criminal law in motion. The concerned Investigating Officer carried out the investigation. He recorded statements of witnesses acquainted with facts of the case. Investigating Officer apprehended the applicants-accused including one more accused, namely, Nihal Ahemad ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 ::: 3 927-CriA-353-19 Iliyaj Khan for the sake of investigation. After completing investigation, Investigating Officer filed charge-sheet bearing Sessions Case No. 61 of 2012 for trial of the applicant/accused within ambit of law.
4. In order to bring home guilt of the accused, prosecution adduced evidence of in all eight witnesses in this case. The learned Sessions Judge on appreciation of oral and circumstantial evidence on record held the applicants-accused guilty for the charge under section 489-B of the IPC. The another co-accused No. 5 Nihal Ahemad Illiyaj Khan was exonerated from the charges pitted against him. Accordingly, learned Sessions Judge, passed the impugned Judgment and order of conviction and resultant sentence, which is the subject-matter of present appeals preferred by the applicants-accused under section 374 of the Code of Criminal Procedure ( for "Cr.P.C."). Meanwhile, pending the appeals, the applicants - accused moved these applications seeking relief of suspension of substantive sentence of imprisonment and to enlarge them on bail.
5. Learned Counsel Mr. A. P. Bhandari, learned Senior Counsel Mr. R. N. Dhorde and learned Counsel Mr. M. W. Khan appeared for the respective applicants and vehemently submitted that the applicants are innocent of the charges pitted against them. They have not committed any crime, but they are falsely implicated in this case. There was no any iota of evidence to prove the offence of using as genuine, forged or counterfeit currency-notes by the applicants/accused. According to learned counsel all the applicants were on bail pending the trial before learned Sessions Court. There was no allegation of misuse of liberty granted in favour of the applicants. The applicants are ready to deposit ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 ::: 4 927-CriA-353-19 the fine amount before the learned trial Court.
6. Mr. Bhandari, learned counsel, further assailed that the applicant-accused Shri. Vedpathak was the employee of Secru Trance India Pvt. Ltd. He has collected the amount from the Branch Office of India Bulls Pvt. Ltd., and as usual deposited the same in the current account of India Bulls Pvt. Ltd. maintained and presented in the ICICI Bank, Branch at Tilaknagar. He has no mens rea or knowledge that there were "18" counterfeit and fake currency-notes in the cash of Rs.2,22,000/-. The learned counsel Mr. Bhandari gave much more emphasis that mere possession of the fake currency-notes would not sufficient to attract very ingredients of section 489-B of the IPC. According to him, the counterfeit notes recovered in this case were of such a nature or description that a mere look at them would not convey any person of average intelligence that these notes were counterfeit or fake notes. He submit that required material circumstances to prove the crime are lacking in this prosecution case. The applicant-accused has an every hope of success in the appeal. Therefore, he requested to suspend the substantive sentence of imprisonment and admit him on bail.
7. Mr. Dhorde, learned Senior Advocate also raised similar issue in regard to intention and knowledge of the applicant-accused Mr. Yadav Lahane, who was one of the employee of India Bulls Pvt. Ltd.. Learned Senior Counsel Shri Dhorde explained the circumstances that financial assistance was provided to one Mr. Shaikh Mukhtyar Ali for purchase of vehicle truck. Thereafter, Mr. Shaikh Mukhtyar Ali sold out the vehicle Truck to accused No. 5 Nihal Ahemad without prior permission from ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 ::: 5 927-CriA-353-19 India Bulls Pvt. Ltd. The vehicle-truck was sold out through mediator accused No. 3 - Shaikh Akbar Gulam Nabi Qureshi and accused No. 4 Shaikh Aslam Shikh Isaq. According to prosecution, the accused No. 3
- Shaikh Akbar Gulam Nabi Qureshi and accused No. 4 Shaikh Aslam Shikh Isaq deposited the amount of Rs.2,02,290/- for repayment of loan shown outstanding in the account of Shaikh Mukthyar Ali maintained in the office of India Bulls Pvt. Ltd.. The applicant Shri Yadav Lahane by way of abundant precaution accepted the cash amount of Rs. 2,02,290/- from accused No. 3 Shaikh Aslam and prepared the list maintaining serial number of currency notes on the paper and obtained the signature of accused No. 4 Shaikh Aslam on it, with his cell number. The applicant Mr. Yadahv Lahane being employee of India Bulls Pvt. Ltd. accepted the amount from concerned accused, namely, Shaikh Akbar and Shaikh Aslam towards repayment of loan shown outstanding towards Mr. Shaikh Muktyar Ali. Thereafter, entire cash amount was forwarded through accused Mr. Vedpathak for its deposit in the current account of India Bulls Pvt Ltd. According to learned Senior Advocate Mr. Dhorde, the attending circumstances on record are not sufficient to draw adverse inference that applicant Shri Yadav had an "knowledge" or that he had "reason to believe" that currency notes were forged or counterfeit one. The learned Senior Advocate added that the mens rea which is essential ingredient of section 489-B of the IPC is absent in the present case. There is no cogent evidence on record to nail the present applicant-accused. Therefore, there is no propriety to keep the present applicant behind bar pending the appeal.
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8. Mr. M. W. Khan, learned counsel for applicant also stepped into the shoe of learned counsel Mr. Bhandari and learned Senior Advocate Mr. Dhorde. He contends that the applicants- Shaikh Akbar and Shaikh Aslam both have no concern at all with the alleged crime. They did not visit to the office of India Bulls Pvt. Ltd for depositing the amount nor they put signature on any paper at the instance of accused Shri Vedpathak. They are falsely implicated in this case. There are material discrepancies in the evidence of prosecution witnesses. Therefore, it would unjust and improper to curtail valuable liberty of the applicant- accused for the sake of appeal in this case.
9. In support of their submissions, respective learned counsel appearing for applicants-accused have placed their reliance on the ratio laid down in the cases, viz. (1) M. Mammutti Versus State of Karnataka reported in AIR 1979 Supreme Court 1705 :: (1979) 4 Supreme Court Cases 723, (2) Umashankar Versus State of Chhattisgarh, reported in (2001) 9 Supreme Court Cases 642.
10. The learned APP raised objection and submits that the learned trial Court considered the entire aspect on the anvil of merits and convicted the accused. Therefore, there is no propriety to grant any relief in their favour pending the appeal.
11. I have given anxious consideration to the arguments advanced at length on behalf of respective learned counsel for applicants. I have also delved into record and proceedings of Sessions Case No. 61 of 2012 as well as factual score of the matter. At this juncture, I find the arguments advanced on behalf of learned counsel for the applicants- ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 :::
7 927-CriA-353-19 accused more sustainable and considerable one. Admittedly, the learned Sessions Judge on consideration of entire evidence of prosecution witness convicted the applicant-accused for the offence punishable under Section 489-B of the IPC and imposed substantive sentence of imprisonment and fine on them.
12. It is to be noted that in order to invoke provision of Section 489- B of the IPC, it is incumbent on the part of prosecution to establish that applicants-accused had either "knowledge" or they had "reason to believe" that currency notes were fake, forged or counterfeit one. It is the rule of law that, the mens rea on the part of accused is the essential ingredient to constitute the offence under Section 489-B of the IPC. Learned counsel appearing for the applicants-accused harped on the circumstances that mere possession of the counterfeit notes by applicants is not sufficient to foist charges on the applicants. On scrutiny of entire evidence adduced on record, I find substance in the submissions advanced on behalf of learned counsel Mr. Bhandari that impugned currency notes recovered being an counterfeit and fake notes all are of such nature or description that a mere look at them would not itself convey any person of average intelligence for conclusion that these notes are counterfeit or fake notes.
13. In the matter in hand, it is also worth to mention that the alleged currency notes recovered being counterfeit notes were not forwarded to any expert or to Currency Note Press, Nashik Road, Nashik for opinion of expert to ascertain that these notes are counterfeit, fake or forged notes. Moreover, the signature of accused Shaikh Aslam obtained by applicant-accused Mr. Yadav on the paper of list of currency notes also ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 ::: 8 927-CriA-353-19 not referred to any handwriting expert for opinion. As pointed out by learned counsel Mr. Khan, it appears that there are material discrepancies on record in the evidence of star witnesses of the prosecution. In such circumstances, at this initial stage, prima facie, I find substance in the arguments advanced on behalf of applicants- accused in regard to some sort of legal infirmities in the prosecution case. Therefore, I do not find it justifiable to curtail the valuable liberty of the applicants-accused for the sake of present appeal.
14. It is to be noted that all the applicants were on bail pending the trial before learned Sessions Judge. There were no allegations about misuse of liberty extended to them. Therefore, there is no impediment to suspend the substantive sentence of imprisonment imposed on the applicants-accused pending the trial. In case, short term sentence of imprisonment is allowed to run during pendency of appeal, the very purpose of appeal itself would become, for all practical purposes, infructuous one, so far as appellants are concerned and the valuable right of appeal would to be an exercise in futility by efflux of time. It is also admitted fact that the proceeding of appeals preferred by appellants-accused practically could not be disposed of on merit expeditiously at the earliest. Therefore, it is essential in the interest of justice to suspend short term sentence of imprisonment of applicants- accused pending the appeal.
15. In the result, applications stand allowed. The substantive sentence of imprisonment imposed on the applicants-accused is hereby suspended pending the appeal subject to condition that the applicants- appellants shall deposit the entire fine amount awarded being part of ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:14:43 ::: 9 927-CriA-353-19 sentence before the learned trial Court. After depositing the fine amount, applicants-appellants be released on bail on furnishing PR Bond of Rs.25,000/- (Rs.Twenty Five Thousands Only) each with one solvent surety of like amount. Bail before the learned trial Court. Accordingly, criminal applications stand disposed of in above terms.
16. Record and proceedings of the concerned Sessions Case No. 61 of 2012 be remitted back to the concerned trial Court to facilitate for compliance of procedural formalities pertains to enlarge the applicants-accused on bail pending the appeal.
[ K. K. SONAWANE ] JUDGE MTK.
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