Gujarat High Court
Vinod Bhuvaneshwar vs State Of ... on 12 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/673/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 673 of 2010
With
CRIMINAL APPEAL NO. 1592 of 2010
With
CRIMINAL APPEAL NO. 1579 of 2010
With
CRIMINAL MISC.APPLICATION NO. 4250 of 2014
In
CRIMINAL APPEAL NO. 1579 of 2010
With
CRIMINAL MISC.APPLICATION NO. 6843 of 2014
In
CRIMINAL APPEAL NO. 1592 of 2010
With
CRIMINAL MISC.APPLICATION NO. 6471 of 2014
In
CRIMINAL APPEAL NO. 673 of 2010
With
CRIMINAL MISC.APPLICATION NO. 11444 of 2014
In
CRIMINAL APPEAL NO. 673 of 2010
With
CRIMINAL MISC.APPLICATION NO. 13694 of 2014
In
CRIMINAL APPEAL NO. 1579 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
Page 1 of 12
R/CR.A/673/2010 JUDGMENT
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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VINOD BHUVANESHWAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance in Criminal Appeal No.673 of 2010:
MR. VISHWANATH JOSHI, ADVOCATE for MR RAJESH M AGRAWAL,
ADVOCATE for the Appellant-original accused No.2
MR YOGESH R AGRAWAL, ADVOCATE for the Appellant(s)
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s)
Appearance in Criminal Appeal No.1579 of 2010:
MR. GAJENDRA P BAGHEL, ADVOCATE for the Appellant-original accused
No.1
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s)
Appearance in Criminal Appeal No.1592 of 2010:
MR. GAJENDRA P BAGHEL, ADVOCATE for the Appellant-original accused
Nos.3 and 4
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 12/01/2015
COMMON ORAL JUDGMENT
[1] The present conviction Appeals have been filed by the appellant-original accused Nos. 1 to 4 under Section 374(2) of the Cr. P.C., against the Judgment and order Page 2 of 12 R/CR.A/673/2010 JUDGMENT dated 23.02.2010 rendered by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar, in Sessions Case No.89 of 2008, whereby the appellant-accused Nos.1 to 4 were convicted for the offence punishable under Section 489B of the Indian Penal Code and sentenced to undergo 10 year rigorous imprisonment with fine of Rs.10,000/-, in default of payment of fine, further simple imprisonment of 6 months, for the offence punishable under Section 489C of the IPC and sentenced to undergo 5 years rigorous imprisonment with fine of Rs.10,000/-,in default of payment of fine, simple imprisonment of 6 months and no punishment was imposed for the offence punishable under Section 120-B of the IPC. Accused No.5-Ashok Shiburav was acquitted by the learned trial Judge.
[2] According to the prosecution case, on 05.02.2008, at Jamnagar Ranjitnagar area, Deep Vastu Bhandar, accused- Irfan and Sahadat were caught with fake currency notes of Rs.22,500/. On receiving information from these accused persons, in Bardharchowk Area, Jamnagar, a raid was conducted and from the possession of accused-Vinod Bhuvneshwar was found with fake currency notes of Rs.13,000/- and from his bag, fake currency notes of Rs.70,000/- were also recovered and from the possession of accused-Rahim Hussain and accused-Beju, fake currency notes of Rs.8,500/- and 9,500/-were recovered. in connection of recovery of fake currency notes, a complaint was filed before the Jamnagar City, A Division Police Page 3 of 12 R/CR.A/673/2010 JUDGMENT Station bearing I-C.R.No.43 of 2008 for the offences punishable under Sections 489B, 489C and 120-B of the IPC. Then statements of the witnesses were recorded and panchnamas were drawn and recovered fake currency notes sent to FSL for expert opinion and on receiving the report from FSL, the same was tagged by the Investigating Officer with the investigation papers. Thereafter, charge- sheet was filed against the appellants-accused for the said alleged offence before the Court of learned Judicial Magistrate First Class. As one accused was juvenile, one separate charge-sheet was filed before the Juvenile Court. As the said case was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class, under Section-209 of the Code of Criminal Procedure, committed the case to learned Sessions Judge, Jamnagar, which was thereafter, numbered as Sessions Case No.89 of 2008.
[3] On the basis of above allegations, charge was framed against the appellants-accused vide Exh.23 and read-over and explained to the appellants-accused for the offences punishable under Sections 489B, 489C and 34 of the IPC. Then plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
[4] Thereafter, after filing closing pursis by the prosecution, further statements of appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, it is admitted by the appellants- accused that they were innocent and they have not committed any offence and were wrongly charge-sheeted.
Page 4 of 12R/CR.A/673/2010 JUDGMENT Further, the appellants-accused did not not disclose regarding the recovery of the said fake currency notes and as to why they came Jamnagar from Jharkhand, cause of visit to Jamnagar also did not disclose by the appellants- accused. The appellants-accused have denied the case of the prosecution and submitted that a false case is filed against them.
[5] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness No. 1 13 Ashok @ Indu Tolaram 2 22 Rajesh Dhirajlal Vyas 3 41 Gordhanbhai Becharbhai Dulera 4 48 Arvindkumar Bhagvandas Vataliya 5 52 Virjibhai Mayabhai Chauhan 6 57 Rameshchandra Trikamdas Nimavat
[6] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.58, yadi in station diary to detain accused at Exh.59 and 60 and yadi to cancel Section-34 and add Section-120-B at Exh.61 etc. [7] After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar vide impugned judgment and order dated Page 5 of 12 R/CR.A/673/2010 JUDGMENT 23.02.2010 held the appellants-accused guilty to the charges levelled against them under Sections 489B, 489C and 120-B of the IPC, and convicted and sentenced the appellant accused, as stated above.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar, the present appellants-accused have preferred present different appeals.
[9] Heard Mr. Vishwanath Joshi, learned counsel for Mr.Rajesh M. Agrawal, learned advocate for appellant- original accused No.2, Mr.Gajendra P.Bhagel, learned advocate for the appellant-accused Nos.1, 3 and 4 and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Mr. Vishwanath Joshi, learned counsel for Mr.Rajesh M. Agrawal, learned advocate for appellant-original accused No.2 for Criminal Appeal No.673 of 2010 read the charge and evidence of the panchas, Investigating Officer and police witnesses and argued that recovery was not proved beyond reasonable doubt. Inspite of sufficient cross-examination was made, the learned trial Judge has not considered the defence version and wrongly convicted the appellant-accused No.2 for the alleged offence. He further contended that Provisions of Section 489B and 489C are not proved and hence, judgment and order of conviction is required to be set aside. Mr.Joshi contended Page 6 of 12 R/CR.A/673/2010 JUDGMENT that Police Officer's evidence is not trustworthy, acceptable and reliable as he is the the simply police personnel. Mr.Joshi further contended that panch witnesses were also members of police officer and under the guise of the police officers, panchas have disclosed false evidence against the contents of the panchnama. Lastly, he prayed to quash and set aside the judgment and order of conviction passed by the learned trial Judge.
[11] Mr.Baghel, learned counsel, for the appellants- accused Nos.1, 3 and 4 contended that learned trial Judge has not considered the defence version of the present appellants-accused that they were poor persons and came from the Jharkhand to Jamnagar for labour work in search of bread butter and therefore, they were wrongly booked in the said alleged offence. Further, contents of Section- 489B and 489C are not proved through oral version and documentary evidence of the witnesses. He further argued that evidence of the prosecution could not establish that the recovery was made from the possession of the appellants-accused and the same was proved beyond reasonable doubt. He read the evidence of the panchas and contents of the panchnama and contended that looking to the age of the appellants-accused, they were young and poor persons and thus, some leniency is required to be shown towards them. He requested the Court to exercise its discretionary powers and reduce the sentence imposed by the learned trial Judge from 10 years to 5 years. He further argued that learned trial Judge has Page 7 of 12 R/CR.A/673/2010 JUDGMENT committed a grave error in convicting the appellants- accused and therefore, judgment and order of conviction is required to be set aside.
[12] Mr.Soni, learned APP for the respondent-State read the charge, complaint and contents of the panchnama and argued that present appellants-accused are from State of Jharkhand and day in and day out, in Gujarat State, particularly in Ahmedabad, always some persons come from outside of the State only to committee a serious offence under Sections-489B and 489C of the Act. On this point, he sites one incident from today's newspaper, wherein, two persons from the State of West Bengal, caught with fake currency notes of Rs.1 lacs in the area of Lal-darwaja. He further submitted that he has not argued this matter on air, but he read the recovery panchnama of the fake currency notes and evidences of panchas. He argued that the panchas are independent witnesses and their evidences are fully supported by the contents of the panchnama. He further read the evidence of the police witness and argued that the defence has not made any attempt to establish that under which circumstances and under which cause, they are wrongly booked by the Investigating Officer. He argued that the prosecution has proved its case beyond reasonable doubt and learned trial Judge has rightly convicted the present appellants- accused for the said alleged offence. He, lastly, contended that this is a good case of enhancement, but fairly submitted that he is not making any submission for Page 8 of 12 R/CR.A/673/2010 JUDGMENT enhancement.
[13] I have perused the documentary as well as oral evidence produced on record. Looking to the charge framed against the present appellants-accused, it is prima-facie established that fake currency notes were recovered from the possession of the appellants-accused and thereby, they committed offence under Sections 489B and 489C of the IPC. As per the case of the prosecution, from the possession of accused-Irfan @ Feku Salat, 9 fake currency notes in denomination of Rs.1,000/- and 7 fake currency notes in denomination of Rs.500/-, in total, fake currency notes of Rs.12,500/-were recovered, from possession of accused-Sahadat @ Yunush Shaikh, 6 fake currency notes in denomination of Rs.1,000/- and 8 fake currency notes in denomination of Rs.500/-, in total, fake currency notes of Rs.10,500/-were recovered, from the possession of accused-Vinod Bhuneshwa Sahu, 10 fake currency notes in denomination of Rs.1,000/- and 6 fake currency notes in denomination of Rs.500/-, in total, fake currency notes of Rs.13,000/- were recovered and from his bag 43 fake currency notes in denomination of Rs.1,000/- and 54 fake currency notes in denomination of Rs.500/-, in total, fake currency notes of Rs.70,000/-were recovered, from the possession of accused-Rahim Hussain Shaikh, 19 fake currency notes in denomination of Rs.500/-, in total, fake currency notes of Rs.9,500/-were recovered and from the possession of accused-Baisul Ainul Shaikh, 17 fake currency notes in denomination of Rs.500/-, in total, fake Page 9 of 12 R/CR.A/673/2010 JUDGMENT currency notes of Rs.8,500/-were recovered. In connection with the aforesaid recovery, I have minutely perused the evidence of panch witnesses, who disclosed that in their presence, the said fake currency notes were recovered from the possession of the appellants-accused.
[13.1] I have compared the contents of the panchnama and cross- examination of the defence lawyer before the learned trial Judge very carefully. I have further minutely perused the cross- examination of Investigating Officer and evidence of members of raiding party, police officers. The defence could not establish that they are wrongly charge-sheeted for the alleged offence. Learned trial Judge has rightly considered the evidence of panchas and police officers. What is required to be seen is that as to whether the recovery which made from the possession of the appellants- accused, is trustworthy, acceptable and reliable and is supported by the evidence of panchas and police officers? The defence could not establish that prosecution has not proved actual possession of the fake currency notes from the possession of the appellants- accused. Learned counsel Mr.Baghel and learned advocate Mr.Joshi, argued that ingredient of Section489B is not applicable to the present case. To properly adjudicate this contention, it is pertinent to quote Section-489B of the IPC. The same reads 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 Page 10 of 12 R/CR.A/673/2010 JUDGMENT 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.
As per the case of the prosecution, actual word in Section-489B is prescribed as 'receives' also and in this case, the amount which was recovered from the appellant-accused was originally received from some one else and it was the duty of the appellant-accused to come out from the alleged offence under Section-489B of IPC the word 'receives from some one else' to protect his skin from conviction under Section-489B of IPC. In the present case, defence could not made any attempt to establish their defence. Learned advocates for the appellants have requested the Court to reduce the sentence as the appellants-accused are young and poor persons. This is not the ground to reduce the sentence in such kind of cases, where question of economy is involved and therefore, no leniency is required to be shown against the present appellants-accused. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court, who has rightly convicted the present appellant-accused for the said alleged offences. I have not found any substance in the present appeal. Learned advocates for the appellants-accused are failed to establish their defence version.
[14] In the result, these appeal are dismissed. The impugned judgment and order of conviction and sentence Page 11 of 12 R/CR.A/673/2010 JUDGMENT dated 23.02.2010 rendered by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar, in Sessions Case No.89 of 2008, is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
Order in Criminal Misc. Application nos.4250 of 2014, 6843 of 2014, 6471 of 2014, 11444 of 2014 and 13694 of 2014 In view of order passed in Criminal Appeal Nos.673 of 2010, 1592 of 2010 and 1579 of 2010, present Criminal Misc. Applications do not survive. Hence, present Criminal Misc. Applications stand disposed of as not survived.
(Z.K.SAIYED, J.) siddharth Page 12 of 12