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Delhi District Court

State vs Virender Prasad on 24 January, 2011

                                      1

           IN THE COURT OF SMT. BIMLA KUMARI
        ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 104/09
ID No. 02401R0452262009
State
Vs.
1 Virender Prasad
S/o Ram Nath Mehto
R/o Village Ranah,
P.S. Bariya, Distt. Bettiah,
Bihar

2 Vinod Singh alias Vijay
S/o Sh. Jagat Narain Singh
R/o Village Uchka Gaon
P.S. Govindganj, Distt. Motihari,
Bihar

FIR No. 36/09
PS Spl. Cell
U/S 489B/489C IPC

Date of Institution: 10.09.2009
Date of reserving for judgment: 15.01.2011
Date of pronouncement: 24.01.2011
JUDGMENT

In the present case, charge has been framed against accused Sessions Case No. 104/09 Page 1/16 2 Vinod Singh alias Vijay U/S 489 C IPC. The allegation in the charge is that on 12.07.09 at about 6:45 PM at main Mathura Road near Zoo, Old Fort, New Delhi, he was found in the possession of 70 currency notes of Rs. 500/- denomination, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine.

2 A separate charge has also been framed against accused Virender Prasad U/S 489C IPC on the same day. The allegation in the charge is that 12.07.09 at about 6:45 PM at main Mathura Road near Zoo, Old Fort, New Delhi, he was found in the possession of 100 currency notes of Rs. 500/- denomination, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine.

3 Both accused pleaded not guilty to said charges and claimed trial.

4 To prove its case, prosecution has examined nine witnesses. They are ASI Surjit Singh(PW-1), SI Uma Shankar(PW-2), S.J. Kulkarni(PW-3), SI Devender Kumar(PW-4), SI Rahul Sahni(PW-5), HC Satish Kumar(PW-6), SI Neeraj Kumar(PW-7), Inspector Manoj Dixit(PW-8) and ASI Mathiasbaxla (PW-9).

5 Statements of both accused have been recorded U/S 313 CrPC, wherein they have denied the allegations of prosecution. They have submitted that they have been falsely implicated in this case by Sessions Case No. 104/09 Page 2/16 3 the I.O. Accused Virender Prasad has submitted that he had borrowed money, by leasing out his tractor to his friend, for the purchase of second hand car, for business purpose. I.O has arrested him from Zero Pushta, but has shown the place of arrest Mathura Road, near Zoo. He [I.O] impounded his genuine notes and planted fake currency notes upon him.

6 Accused Vinod Singh has submitted that he had borrowed money from one of his friends by mortgaging his land for the purpose of purchasing second hand car and I.O has implicated him falsely in this case by planting fake currency notes upon him. He was arrested by I.O from the house of his brother-in-law, but the place of arrest has been shown as Mathura Road.

7 Accused have examined two witnesses in their defence. They are Sanjay Kumar Singh [DW1] and Babujan Hussain [DW-2]. 8 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file. 9 In the present case, PW-4 SI Devender Kumar is the material witness, being one of the recovery witnesses. He has deposed that on 12.07.09 he was posted as ASI at Spl. Cell, Lodhi Colony. On the said day, one specific information was received by Inspector Manoj Dixit to the effect that one person namely, Virender Kumar R/o Behtia, Bihar, would come near Zoo on Mathura Road at about 6.15 PM to handover the consignment of the fake currency notes to his Sessions Case No. 104/09 Page 3/16 4 contact. Inspector Manoj Dixit shared the secret information with him and a raiding team comprising of Insp. Manoj Dixit, SI Rahul Sahni, SI Virender Tyagi, HC Satish, HC Surender, HC Mukesh, HC Sandeep and himself was constituted. The entire team was briefed by the Inspector Manoj Dixit. The team was made well equipped with the arms and ammunition. At about 5.35 PM they left the office of Spl. Cell in one private car and two motorcycles. He was in the car driven by HC Satish. At about 6.00 PM they reached the place of information, where the secret informer contacted Inspector Manoj Dixit. They had a conversation and the information was re-discussed. Inspector Manoj Dixit contacted the passersby to become witnesses to raid, but none came forward and left away without disclosing there whereabouts. Thereafter, when they were waiting, one auto rickshaw came there at about 6.15 PM. Two persons de-boarded the auto-rickshaw. The secret informer told Inspector that out of those two persons, one who was wearing white pant and white shirt was Virender and thereafter, the secret informer left the place. After about 30 minutes those two persons tried to move from that place. The team was alerted and both the persons were apprehended. On interrogation, the person in white clothes told his name as Virender Prasad and other one told his name as Vinod Singh @ Vijay. On the search of accused Virender, one white polythene bearing the impression of 'Gupta Dresses' in Hindi was recovered from the right pocket of his pant. I.O. checked that Sessions Case No. 104/09 Page 4/16 5 polythene, from which 100 notes of Rs.500/- denomination were recovered. On the personal search of accused Vinod @ Vijay, one yellow colour polythene was recovered from the right pocket of his pant. On checking, 70 currency notes of Rs.500/- denomination were recovered. All the recovered 170 notes were fake currency notes. The notes, recovered from accused Virender were kept back in the same white polythene and the notes recovered from accused Vinod were kept back in the yellow polythene. IO sealed both the polythenes with the seal of VTK. The IO filled up the FSL form. The pullanda recovered from the possession of Virender was taken into possession by the IO alongwith FSL Form vide seizure memo now Ex.PW4/A and the pullnada recovered from accused Vinod was taken into possession alongwith FSL Form vide memo Ex. PW4/B. After use the seal was handed over to him. Thereafter, SI Rahul Sahni prepared the Rukka and handed over the same to HC Satish Kumar for getting the case registered at PS Spl. Cell. After the registration of the case, further investigation was assigned to SI Neeraj Kumar, who came at spot. SI Rahul Sahni handed over the seizure memos, the sealed pullandas and the accused persons to the second IO, who prepared site plan at the instance of SI Rahul Sahni. HC Satish Kumar came back at the spot and handed over the Rukka and copy of FIR to SI Neeraj. SI Neeraj Kumar mentioned the FIR number on all the memos. Thereafter, SI Neeraj Kumar interrogated the accused persons, arrested Sessions Case No. 104/09 Page 5/16 6 them and recorded their disclosure statements. Thereafter, they came back to PS Spl. Cell. IO deposited the case property in malkhana and put the accused persons behind the bars.

10 PW-4 SI Devender Kumar has identified 170 currency notes of Rs. 500 denomination recovered from accused Virender as Ex.P1/1- 100 and from accused Vinod as Ex. P2/1-70.

11 The other material witness is PW-5 SI Rahul Sahni. He has deposed on the same lines as that of PW-4 SI Devender Kumar. He prepared the rukka Ex.PW5/A and sent Constable Satish for getting the case registered at P.S. Spl. Cell. He has further deposed that after registration of case, further investigation was assigned to SI Neeraj Kumar.

12 The other material witness is PW-6 HC Satish Kumar. He has deposed on the same lines as those of PW-4 SI Devender Kumar and PW-5 SI Rahul Sahni.

13 The other material witness is PW-7 SI Neeraj Kumar. He is the second I.O of case. He has prepared the site plan Ex. PW5/B at the instance of PW-5 SI Rahul Sahni. He has arrested both accused Virender and Vinod Singh vide memo Ex. PW5/C and Ex. PW5/D respectively and conducted their personal search vide memos Ex. PW5/E and Ex. PW5/F respectively. He has deposited the case property in the malkhana and recorded statements of witnesses U/S 161 CrPC. He has recorded the disclosure statements of both accused Sessions Case No. 104/09 Page 6/16 7 Ex. PW5/G and Ex. PW5/H respectively. He got both accused medically examined and produced them before the Duty Magistrate and obtained their police custody remand for ten days. During police custody, accused Virender made a supplementary statement Ex. PW5/I, in pursuance of which, accused persons were taken to Lucknow Railway Station on 15.07.09, where the accused persons pointed out the place near the Cyber cafe where they had given fake currency notes worth Rs. One Lakh to one Javed. SI Neeraj Kumar prepared the pointing out memo Ex. PW5/J. On 16.07.09 PW-7 SI Neeraj Kumar took accused persons to near Bareilly Roadways Bus Stand, where they pointed out the place where they alongwith associates had given fake curreny notes worth Rs. 1.5 Lakhs to one Javed and a pointing out memo Ex. PW5/K was prepared by him. On 17.07.09 accused persons led the police team to Sector 22, Chandigarh, and pointed out the place Market Stand, Chandigarh where they had given fake currency notes worth Rs. Two Lakhs to one Lalaji and he [PW-7] prepared the pointing out memo Ex. PW5/L. Thereafter, on the same day, accused Virender led the police team to Ambala, under the flyover near bus stand in front of Puran Dabha, where he alongwith his associate Sanu had given fake currency notes worth Rs. One Lakh to one Surender and PW-7 prepared the pointing out memo Ex. PW5/M. On 21.07.09 accused Virender led police team to D-Block, Naraina and pointed out the main road, where he Sessions Case No. 104/09 Page 7/16 8 had given fake currency notes worth Rs. 30,000/- to one Dina Nath and PW-7 prepared the pointing out memo Ex. PW5/N. On the same day, accused Vinod and Virender led the police team to Karol Bagh and pointing out Hong Kong Bazar Patri, where they had given fake currency notes worth Rs. 1.5 Lakhs to one Dina Nath and memo Ex. PW5/O was also prepared by PW-7 to that effect.

14 PW-3 S.J. Kulkarni has proved on record that the 170 currency notes in the denomination of Rs. 500/- were forged. His detailed report is Ex. PW3/A. 15 After going through the testimony of PWs, examined by the prosecution, I am of the considered view that recovery of 170 fake currency notes from the possession of accused seems to be doubtful as there are contradictions in the testimonies of PWs on material points. 16 In the testimony of PWs, there is contradictory evidence as to whether SI Neeraj was the member of the raiding team or not. PW-8 Inspector Manoj Dixit, who has constituted the raiding party, after receiving information from secret informer, has deposed that on 12.07.09 he received a specific information from secret informer on telephone at 5:15 PM that one Virender R/o Betiah, Bihar would be coming near the Zoo, Mathura Road at about 6:15 PM to deliver a consignment of fake Indian currency notes to one of his contacts. This information was reduced into writing in the daily diary Sessions Case No. 104/09 Page 8/16 9 vide DD entry No. 10, copy of which is Ex.PW8/A. A raiding team was formed consisting of himself, SI Rahul Sahni, SI Virender Tyagi, ASI Devender Kumar, HC Mukesh, HC Satish, HC Surender and HC Sandeep. In other words, as per testimony of PW-8 Inspector Manoj Dixit, SI Neeraj Kumar was not a member of raiding team. But PW-7 SI Neeraj Kumar has deposed in his cross-examination by ld. counsel for accused that he was also a member of team led by Inspector Manoj Dixit. He was also aware about the information regarding circulation of fake currency notes in Delhi and other parts of India. It is worth noting that, as per prosecution case, PW-7 SI Neeraj Kumar is the second I.O of case, to whom the investigation was handed over after registration of FIR and he was never a member of raiding team.

17 In the testimony of PWs, there is contradictory evidence as to who arrested accused Virender. PW-4 SI Devender Kumar has deposed in his cross-examination by ld. counsel for accused that accused Virender was apprehended by him alongwith SI Rahul Sahni and Inspector Manoj Dixit. But PW-8 Inspector Manoj Dixit has deposed in his cross-examination by ld. counsel for accused that accused Virender was arrested by him, SI Rahul and SI Virender Tyagi. Thus, there is contradiction as to whether SI Devender Kumar or SI Virender Tyagi had a role in the arrest of accused Virender.

18 In the testimony of PWs, there is no consistency about the police officials who had arrested accused Vinod Singh. PW-4 SI Devender Kumar has deposed in his cross-examination that accused Vinod was arrested by SI Virender Tyagi, HC Surender and HC Sandeep. PW-8 Inspector Manoj Dixit has deposed that accused Vinod was arrested by ASI Devender Kumar and HC Satish. Thus, there is glaring contradiction in the evidence of PW-4 and PW-8 on material point.

19 From the testimony of PWs, there is reasonable doubt as to whether the two motorcycles, allegedly used by the members of the raiding party, were private ones or belonged to govt. PW-4 SI Devender Kumar has deposed in his cross-examination that one of the motorcycles was a govt. vehicle and the other was a private one. But PW-8 Inspector Manoj Dixit has deposed in his cross- examination that both the motorcycles were private ones. 20 Evidence of PW-7 is silent about the recovery of watch from the personal search of accused Vinod. PW-7 SI Neeraj Kumar has deposed in his cross-examination by ld. counsel for accused that Rs. 250/- cash, one pocket diary and two rings were recovered in the personal search of accused Vinod. But personal search memo of accused Vinod Singh Ex. PW5/F shows that besides the cash of Rs.

250/-, pocket diary and two rings, one yellow colour watch of Titan make was also recovered from the possession of accused Vinod. 21 In the testimony of PW8, there is omission and addition as to what was the recovery from the personal search of accused Virender. PW-8 Inspector Manoj Dixit has deposed in his cross- examination by ld. counsel for accused that some money and a diary were recovered from the possession of accused Virender. But personal search memo of accused Virender Ex. PW5/E shows that no diary was recovered from the personal search of accused Virender and a wrist watch of Titan make was recovered from his personal search alongwith cash of Rs. 150/-. Thus, evidence of PWs is in conflict with memo Ex. PW5/E. 22 It is worth noting that as per the prosecution story, the accused persons had deboarded from an auto-rickshaw but none of the recovery witnesses has noted down the registration number of that auto-rickshaw.

23 In the present case, raid has been conducted near Zoo, Mathura Road but no employee of Zoological Park has been joined in the raid by the I.O of case.

24 In Sahib Singh V. State of Punjab it is inter-alia held by Hon'ble Supreme Court that "Before conducting a search the concerned police officer is required to call upon some independent and Sessions Case No. 104/09 Page 11/16 12 respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers, who conducted the search, cannot be disbelieved, solely on the ground that no independent and respectable witness was examined to prove the search but if it is found-as in the present case- that no attempt was even made by the concerned police officer to join with him some persons of the locality, who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."

25 In the present case, PW-8 Inspector Manoj Dixit has deposed in cross-examination that he did not ask any of the employees of National Zoological Park to join the raiding team. He did not ask the owners/employees of the kiosks to join the investigation. Similarly, PW-7 SI Neeraj Kumar, who is the I.O of case, has also deposed in cross-examination that he did not ask anyone from the staff of Zoological Park and the owners/occupiers/employees of Kiosks near bus stand or any other person at bus stand to join the investigation.

26 All these material contradictions and omissions, discussed above cast a doubt about the truthfulness in the prosecution story and Sessions Case No. 104/09 Page 12/16 13 cannot be ignored. Besides the abovesaid infirmities and contradictions in the prosecution case, I am of the considered view that prosecution has miserably failed to prove its case against accused persons so far as offence U/S 489C is concerned.

27 In Bur Singh V. Emperor [1931] 32 Cr. L.J 351, it was held that it should be borne in mind that mere possession of forged notes is not an offence under the Indian Penal Code and in order to bring the case within the purview of Section 489-C of IPC. It is not only necessary to prove that the accused was in possession of forged notes, but it should be further established [a] that at the time of his possession he knew the note to be forged or had reason to believe them to be so and [b] that he intended to use them as genuine or that they might be used as genuine.

28 In Ragho Saran Sao V. State, 1961 [2] Cri. LJ 536 it has been held that for an offence under Section 489-C, Indian Penal Code it is essential to establish that the accused intended to use the forged notes as genuine and that they might be used as genuine....sitting in his verandah all alone, it could not conclusively be inferred that, while possessed of the forged notes the accused also intended to use them as genuine and his conviction could not be upheld.

29 In Bachan Singh V. State, 1982 Cri. LJ it has been held that in order to bring a case within the purview of Section 489-C IPC, it was not only necessary to prove that the accused was in possession of forged notes, but it should further be established that : [a] at the time of his possession he knew the notes to be forged or had the reason to believe the same to be forged or counterfeit, and [b] he intended to use the same as genuine. Mere possession of forged or counterfeit notes is not an offence under the Indian Penal Code.

30 In Uma Shankar V. State of Chhattisgarh 2001(2) JCC (SC) 215 it was inter alia observed by Hon'ble Supreme Court that sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or bank notes. Mens rea of offences under Section 489-B and 489-C is, "knowing or having reason to believe that currency notes or bank notes are forged or counterfeit". Without the afore-mentioned mens rea, selling, buying or receiving from another person or otherwise trafficking 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 Sessions Case No. 104/09 Page 14/16 15 sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above.

31 In Madan Lal Sharma V. State 1990 Cr. L.J 215 (Cal) it was held by the Hon'ble Calcutta High Court that "Under Section 489-B, IPC the burden is on the prosecution to prove that at the time when the accused was passing the note, he knew that it was a forged one. The mere possession of it by him does not shift the burden to the accused to prove his innocent possession of the forged note. Similarly, under Section 489-C, it is to be proved that the accused intended to use the forged or counterfeit currency note as genuine or it might be used as genuine. It is for the prosecution to prove the circumstances, which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously the note on the public. Thus, knowledge or reason to believe that the note was forged has to be proved to fix the liability under Sections 489-B and 489-C. 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."

32 In the present case, prosecution has not examined any witness to prove that accused persons were knowing that the currency Sessions Case No. 104/09 Page 15/16 16 notes were forged ones or had reason to believe the same to be forged or that accused were intending to use the fake currency notes allegedly recovered from their possession, as genuine ones. In the present case, accused persons have been taken to various places i.e. Lucknow, Barielly, Chandigarh, Naraina [Delhi], Karol Bagh[Delhi] during investigation by the I.O, but the customers whom, they [accused] had allegedly given the fake currency notes, were not available and could not be arrested. In other words, prosecution has miserably failed to prove the necessary 'mens rea' required for the offence U/S 489-C IPC as discussed by Hon'ble Supreme Court in Uma Shankar's case referred above.

33 In view of above discussion, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons. Accordingly, accused Virender Prasad and Vinod Singh alias Vijay are acquitted of the offence they were charged with. Both accused are on bail. Their personal bonds and surety bonds are cancelled. Their sureties are discharged.

File be consigned to Record Room.

Announced in the open court today on 24.01.11 (Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.