Calcutta High Court
Roney Dubey vs State Of West Bengal on 7 September, 2007
Equivalent citations: 2007CRILJ4577
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
JUDGMENT Girish Chandra Gupta, J.
1. The appellant-Roney Dubey, a resident of Jammu, was charged under Sections 498-A, 489-C, 489-D and 489-E. He was convicted by a judgment and order dated 25th November, 2008 passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri in Sessions Trial No. 19/2002 arising out of Sessions Case No. 37/2002 for offences under each of the aforesaid sections and by a further order passed on the same date, he was sentenced to suffer imprisonment for 10 years as also to pay fine of Rs. 5,000/-, in default, to suffer further imprisonment for six months under Section 489-A of the Indian Penal Code; imprisonment for 7 years for offence under Section 489-C and further imprisonment- for 10 years as also to pay fine of Rs. 5,000/-, in default, to suffer further imprisonment for six months for the offence under Section 489-D of the Indian Penal Code. All the sentences were directed to run concurrently subject to the provisions of Section 428 of the Code of Criminal Procedure. The convict has come up in appeal.
2. Briefly stated the case of the prosecution, appearing from the FIR, lodged by Sub-Inspector Debashish Bose, Officer-in-Charge of New Jalpaiguri Outpost is as follows:
On 21st February, 2001 at 2.25 hours acting on a source information the de facto complainant along with Sub-Inspector B. Roy, Sub-Inspector S.K. Bhattacharjee, Sisir Sinha, Nripen Roy and Subir Sen accompanied by the witnesses Shri Hart Dewan and Shri Ganesh Roy reached the Dewan Hotel and raided the room No. 14 thereof where the convict was found, who upon interrogation disclosed that he had come from Delhi and had been staying at Dewan Hotel since 16th February, 2001. On search, three fifty rupee denomination notes of the Indian currency, believed to be counterfeit, were recovered from the pocket of his underwear. On thorough search, one xerox machine, one voltage stabiliser together with accessories, one gold star multipurpose office paper packet containing 115 pieces of white papers and one used white paper with some impression of the Indian currency were seized from the room No. 14 in the presence of the witnesses. The accused is alleged to have stated on interrogation that he copied the Indian currency notes of fifty rupee denomination from the coloured xerox machine for the purpose of using the same as genuine. It was, on that basis, complained that the accused possessed fake counterfeit currency notes of Rs. 50/- each aggregating to a sum of Rs. 150/-.
3. Mr. Bhattacharyya, learned Advocate appearing for the appellant submitted that the judgment under challenge is perverse. No legal evidence, according to him, is there on the record which might even remotely suggest any incriminating factor against the accused. Therefore the point for consideration is whether the conviction and sentences ordered by the learned trial Judge can be upheld on the basis of the evidence adduced by the prosecution.
4. In all nine witnesses were examined. P.W. 2 was partly examined-in-chief. Even his examination-in-chief does not appear to have been concluded nor did he appear to face cross-examination. Therefore, his evidence has to be rejected outright. P.W. 4 Biplab Kumar Sen is a chance witness who according to his own deposition met the accused/appellant on 21st February, 2001 in a bus and travelled with the accused-appellant after being acquainted with him for about 35 minutes. The convict is deposed to have assured the P.W. 4 a job. The convict is further deposed to have held himself out as a proprietor of 2/3 companies, located at various places like, Siliguri, Darjeeling and other places. According to the P.W. 4 the convict gave him the address of Dewan Hotel. P.W. 4 at the material point of time was going to the North-Bengal University. After completion of his job at the University when he went to meet the convict at Dewan Hotel he was told that the convict had been arrested. The deposition of this witness does not, in our opinion, have any connection whatsoever with the charges levelled against the convict. Therefore, the evidence of P.W. 4 is discarded as irrelevant. P.W. 8 Rajkumar Prasad is a hotel boy of Dewan Hotel. He in his cross-examination deposed that he heard from his employer that one xerox machine, some money and some documents were seized from the accused. Therefore, his evidence also does not appear to have any substance. The only other independent witness is Ganesh Roy (P.W. 1), manager of the Dewan Hotel. His deposition is that during the period between 16th February, 2001 and 21st February, 2001 the police asked him about the convict. He showed the room No; 14 where the convict had put up. Police arrested him and took him in custody. Police seized certain articles. A seizure list was prepared wherein he put his signature. He has identified his signature. He has also identified a xerox machine, papers, voltage stabilizer and three fifty rupee denomination notes which were seized by the police in his presence which have collectively been marked material Exhibit 'I.' In his cross-examination, he deposed that he does not know the contents of the seizure list which was marked exhibit '1'. P.W. 3, Sisir Sinha is a Constable who was present during the raid conducted at the Dewan Hotel. According to him a person was arrested with colour duplicating machine for preparing fake currency notes and three fifty rupee fake notes were also recovered from him. He however was unable to say whether the accused was the same person. P.W. 5 Nripen Roy is a homeguard. He also accompanied the officer-in-charge of the New Jalpaiguri Outpost who had conducted the raid. He deposed that the officer -in-charge seized the xerox machine along with three fifty rupee notes in his presence. He subsequently came to learn that those were fake currency notes. P.W. 6 Shri R.K. Moktan, an Inspector of C.I.D., Jalpaiguri Outpost deposed that on 21st February, 2001 he was posted as Officer-in-Charge of Bhaktinagar Police Station. He endorsed the written complaint and drew up the formal F.I.R. P.W. 7, Sub-Inspector P. Barman submitted that charge-sheet. He also collected the F.S.L. report. He did not play any other part according to him. The F.S.L. report has been marked for identification. P.W. 9, Sub-Inspector D. C. Ghosh at the material point of time was officer-in-charge of New Jalpaiguri Police Outpost. He proved the seizure list prepared by Sub-Inspector Buddhadev Roy on the basis that he knew his handwriting. The seizure list Exhibit '1' goes to show that on 21st February, 2001 at 4.25 hours three fifty rupee fake notes, one xerox machine, one voltage stabilizer, one gold star multipurpose office paper (extra white) packet containing 115 pieces of white paper and one used white paper suspected with some impression of Indian currency were seized from the Room No. 14 of the Dewan Hotel. It is however stated therein that three fifty rupee fake notes were recovered from the possession of the convict.
5. From the evidence discussed above it would appear that except for proving the seizure list being Exhibit 'I' and producing the seized articles marked material Exhibit 'I,' no other evidence was laid. There is no evidence to show that the xerox machine, the voltage stabiliser, the white papers or the paper containing some impression of Indian currency belonged to the convict. The seizure list goes to show that from the possession of the convict three fifty rupee notes were recovered which was believed to be fake. The suspected currency notes, it appears, were sent for expert opinion. The report furnished by Shri T.R. Nimze, a chemist, however was not tendered in evidence. It has been marked 'X' for identification. Therefore the contents of the report did never become evidence.
6. Even assuming that the three fifty rupee notes which were seized from the possession of the convict were fake that would not in our opinion prove the guilt of the convict. In the case of Umashankar v. State of Chhattisgarh the Apex Court laid down the following tests:
Sections 498-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the Legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary possessors or users.
A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit." Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B, I.P.C. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea.
7. There is no material before us to show that the appellant had the requisite knowledge that the three fifty rupee notes found from his possession were fake notes nor is there anything to suggest that with the knowledge that they were fake he intended to use them unless it is found that the accused had the knowledge or reason to believe that the said questioned note was a forged one, the question of his palming it off as genuine could not arise. Therefore, the conviction under Section 489-C is altogether bad.
8. Now the question remains whether any other incriminating material is found against the appellant, in order to sustain the conviction and sentence under Sections 489-A/489-D and 489-E of the Indian Penal Code. It would be appropriate to notice, the conclusions arrived at by the learned trial Judge himself, at this stage.
In view of my findings that is foregoing, I arrive at the irresistible conclusion that in view of seizure of the fake currency notes of Rs. 50/- denomination, the colour xerox machine and its accessories intended for printing counterfeit notes and extra white 115 pcs. of papers and one such paper having counterfeit currency note impression, I am farther of the opinion that the prosecution has been able to bring home of the charges against the accused. Accordingly, accused-Roney Dubey is found guilty of the offences Under Sections 489-A, 489-C, 489-D and 489-E, I.P.C. and be convicted in accordance with Section 235(1), Cr. P.C.
9. There is no material on the record to show that the xerox machine, the voltage stabiliser, the blank papers and the paper containing some impression of the Indian currency note belonged to the convict. Mere fact that they were seized from Room No. 14 is not enough. Therefore, the question of the convict becoming liable for possession of the aforesaid articles does not arise.
10. Even assuming for the sake of argument that these articles were seized from the possession of the appellant that would not without anything more justify a finding that the appellant is guilty either under Section 489-A or under Sections 489-D/489-E of I.P.C. There is no evidence on the record to suggest that the appellant indulged in the act of counterfeiting any currency note or knowingly performed any part of the process of counterfeiting any currency note. Therefore the charge under Section 489-A was not at all proved.
11. There is no evidence on the record either to show that the xerox machine, blank papers recovered from the room No. 14 of the Dewan Hotel can be used for the purpose of forging or counterfeiting the currency notes.
12. The word 'counterfeit' has been defined in Section 28 of the I.P.C. which reads as follows:
A person is said to "counterfeit" who causes one thing to resemble another thing intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.
13. in order to bring home the charge under Section 489-D the prosecution has to prove that with the help of xerox machine counterfeit currency notes can be produced which is likely to deceive the common people. In the case of the State of U.P. v. Hafiz Md. the following view was expressed as regards the meaning and ingredients of the expression 'counterfeit.' The main ingredients of counterfeiting as laid down in Section 28 are (i) causing one thing to resemble another thing, and (ii) intending by means of that resemblance to practise deception or (iii)_ knowing it to be likely that deception will thereby be practised. Thus if one thing is made to resemble another thing and the intention is that by such resemblance deception would be, practised or even if there is no intention but it is known to be likely that the resemblance is such that deception will thereby be practised there is counterfeiting. Then comes Explanation 1 to Section 28 which lays down that it is not essential to counterfeiting that the imitation should be exact. Ordinarily counterfeiting implies the idea of an exact imitation; but for the purpose of the Indian Penal Code there can be counterfeiting even though the imitation is not exact and there are differences in detail between the original and the imitation so long as the resemblance is so close that deception may thereby be practised. Then comes the second Explanation which lays down that where the resemblance is such that a person might be deceived thereby it shall be presumed until the contrary is proved that the person causing one thing to resemble another thing was intending by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised. This Explanation lays down a rebuttable presumption where the resemblance is such that a. person might be deceived thereby. In such a case the intention or the knowledge is presumed unless the contrary is proved.
This analysis of Section 28 shows that there is no necessity of importing words like 'colourable imitation' therein. In order to apply it, what the Court has to see is whether one thing is made to resemble another thing, and if that is so and if the resemblance is such that a person might be deceived by it there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved. What the Court therefore has to see is whether one thing has been made to resemble another thing. If it finds that in fact one thing has been made to resemble another it has further to decide whether the resemblance is such that a person might be deceived. If it comes to the conclusion that. the resemblance is such that a person might be deceived by it, it. can presume the necessary intention or knowledge (until the contrary is proved) and counterfeiting would then be complete. Therefore the two things that were necessary to decide in this case were (i) whether the labels or wrappers on the soaps sold by the respondents were made to resemble the labels and wrappers of the genuine Sunlight and Lifeboy soaps, and (ii) if they were so made to resemble, whether resemblance was such as might deceive a person. If both these things were found the labels and wrappers in this case would be counterfeit and the necessary intention or knowledge would be presumed unless the contrary was proved.
14. The aforesaid judgment was followed in a subsequent judgment in the case of K. Haseen v. State of Tamil Nadu .
15. We are therefore emboldened to take the view that the prosecution has miserably failed to bring home any of the charges against the appellant. Fact remains that the appellant was deprived of his liberty as far back as on 21st February, 2001 and since then he is languishing in jail. We cannot but. record our disapproval of the slipshod manner in which the learned trial Judge found the appellant guilty. The learned trial Judge relied upon the report of the chemist in spite of the fact that the report was not exhibited. Had it been marked an exhibit the accused would have got an opportunity to cross-examine the concerned witness in respect of the contents of the report. Another instance of the faulty reasoning adopted by him would be illustrated by the following part of his judgment.
The accused, in fact, failed to give any satisfactory explanation for such possession of the fake currency notes, documents and machineries intended for printing counterfeit notes. The explanation as forwarded by the accused during his examination Under Section 313, Cr. P.C. is too fragile to merit acceptance. He is the inhabitant of Jammu. He came to NJP from Delhi with the purpose of starting a xerox centre in Darjeeling town with the xerox machine and other accessories. His such explanation is not at all believable inasmuch as New Delhi is cosmopolitan city being the capital of India. In search of his fortune he will select a quite unknown place like Darjeeling for starting a xerox centre - such explanation does not merit any acceptance. Why, for what special reason, in spite of his denial, three counterfeit fifty rupee notes could be recovered from his possession and that too with an impression of such fake notes in an extra white paper resembling Indian currency note, indicating his involvement in the crime. The police personnel did not have any axe to grind against him, nor was he booked for any criminal case earlier, nor his name was mentioned by any co-accused of any criminal case before the police enabling the P.W. 9 to lodge a false case against him. In fact, his explanation during Section 313, Cr. P.C. examination is not at all believable and as such it is jettisoned. On the other hand, the prosecution case comes to surface with strong vivacity.
16. In the instant case, no material was brought on record by the prosecution to show that the appellant had the requisite mens rea. On the facts of this case the presumption drawn by the learned trial Court is not warranted under Section 4 of the Evidence Act.
17. We already have pointed out that there is no evidence that Material Exhibit 'I' except three fifty rupee notes were seized from his possession. We are satisfied that gross injustice has been done in this case to the appellant.
18. For the reasons aforesaid the appeal is allowed. The order of conviction and sentence passed on the accused-appellant is set aside and the appellant is acquitted of the charges framed against him. The accused-appellant shall be set at liberty forthwith unless wanted in connection with any other case.
19. Let the lower Court records with a copy of this judgment be remitted forthwith to the learned trial Judge for necessary action.
20. Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
Kishore Kumar Prasad, J.
21. I agree.