Delhi District Court
S.C. No. 3/11 Fir No.324/04 "State vs . Ali Sher" 1/15 on 16 April, 2012
IN THE COURT OF SHRI RAJEEV BANSAL
ASJ-03 (SOUTH DISTRICT), SAKET COURTS
NEW DELHI
S.C. No: 3/11
FIR No: 324/04
P.S : Kotla Mubarakpur
U/S: 489-C IPC
STATE
Vs.
(1) Ali Sher
S/o Sh. Zabar Khan
R/o House No. 21,
Near Masjid, Village-Satbari,
Mehrauli, New Delhi.
Date of initial Institution : 13.12.2007.
Date of Institution in this Court : 13.01.2011.
Date of Pronouncement : 16.04.2012.
JUDGMENT
1. The present FIR No.324/04 was registered under Section 489-C of Indian Penal Code, on 18.07.2004 at 8.50pm. The case of the Prosecution is that on 18.07.2004, at around 7.30pm when SI Sunil Kumar was performing patrolling duty at CGHS Dispensary under S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 1/15 PS- Kotla Mubarakpur, with Ct. Hoshiyar Singh and Ct. Devender Singh, he received a secret information through Secret Informer that one person is standing near Ladies Park, Sewa Nagar, New Delhi, with huge quantity of counterfeit currency notes, which he has to deliver at 50% of the face value to some party. Immediately, a raiding party was constituted and 4-5 passersby were requested to join the raiding team, but, none agreed. Without wasting any further time, the aforesaid three police personnel reached Ladies Park within 10 minutes of receiving the information, and the Secret Informer pointed out towards the accused to be the person who had to give the counterfeit currency notes to the party. The accused was informed about the secret information and the police personnel offered their own search to the accused, which he refused to take. Thereafter, search of the accused was conducted, and from the right pocket of his wearing kurta, a bundle of currency notes of Rs.100/- was recovered. Those were 100 notes of Rs.100/- each, and each note had the number- '4FT S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 2/15 424919'. From naked eye, the currency notes looked fake and counterfeit. At random, 10 currency notes were taken out from the bundle of notes and those were got photocopied. After completing the police formalities, case under Section 489-C IPC was registered against the accused. Since, the offence under Section 489-C IPC is triable exclusively by the Court of Session, the case was committed to this Court on 10.01.2011. On 23.02.2011, charge under Section 489-C IPC was framed against the accused for the possession of counterfeit currency notes, to which, he pleaded not-guilty and claimed trial.
2. In order to prove its case, the Prosecution examined five witnesses:
3. PW-1 Sh. SC. Gupta, Retired Government Examiner of Questioned Documents proved his report regarding the genuineness of the currency notes sent to him for examination and proved his report as EX.PW1/A from S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 3/15 A-1 to A-3. According to the report, the currency notes were fake.
4. PW-2 HC Devender Kumar deposed on the lines mentioned in the FIR. He proved the Seizure Memo of currency notes recovered from the accused as EX.PW2/A and the Arrest Memo of the accused was proved as EX.PW2/B, while his Personal Search Memo was proved as EX.PW2/C. The fake currency notes of Rs.100/- were exhibited P-1 to P-100 and the photocopies of 10 fake currency notes were marked as Mark P-1 collectively. In his cross-examination, he stated that there was an electricity pole at the road. He also stated that he did not go for photocopying the counterfeit currency notes. He also admitted that the Seizure Memo EX.PW2/A does not bear his signatures. He also admitted that the disclosure statement does not bear either the signatures of the accused or his own. He also agreed that in the Personal Search Memo, the date 17.07.2004 at point A and B has been changed as 18.07.2004. Similarly, he admitted that an S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 4/15 overwriting in dates from 17.07.2004 to 18.07.2004 on the Arrest Memo EX.PW2/B of the accused.
5. PW-3 HC Hoshiyar Singh deposed about the incident in the manner recorded in the FIR. He proved the Seizure Memo as EX.PW2/A, the Arrest Memo of the accused as EX.PW2/B and Personal Search Memo of the accused as EX.PW2/C. In his cross-examination, he stated that in the site plan, (subsequently exhibited as EX.PW5/B), there is no mention of electricity pole. He also admitted about the overwriting on the date in EX.PW2/C. He further stated that Ct. Devender had gone to get the photocopies of the counterfeit currency notes done.
6. PW-4 SI Rajnish deposed about sending the fake currency notes to CFSL, Calcutta, on 09.03.2006, and about receiving CFSL report through MHC(M), on 20.07.2006. He further deposed about filing of challan in the Court after completion of investigation. S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 5/15
7. PW-5 Insp. Sunil Bhardwaj is the IO and he also deposed about the incident in the manner it has been recorded in the FIR. He also stated that Ct. Hoshiyar Singh was sent to get the photocopies of 10 counterfeit currency notes done. Seizure Memo was proved as EX.PW2/A. Rukka was proved as EX.PW5/A. Site plan was proved as EX.PW5/B, the Arrest Memo of the accused was proved as EX.PW2/B and Personal Search Memo of the accused was proved as EX.PW2/C. He also proved the recording of the disclosure statement of the accused as EX.PW5/C and copy of FIR was proved as EX.PW5/D. In his cross-examination, he stated that there was an electricity pole near the spot, but, the same was not shown in the site plan. He also admitted that there was overlapping of date on EX.PW2/C.
8. All the circumstances appearing against the accused, were put to him, and his statement was recorded under Section 313 Cr.PC, wherein, he stated that no counterfeit currency notes were recovered from his possession. It was stated that he has been falsely implicated S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 6/15 by the police in this case, as he had quarreled with the police on road two days ago under influence of liquor, and he was falsely booked in this case. The accused produced defence witness i.e. DW-1 Salim Khan, who deposed that on 16.07.2004, at about 4/4.30pm, he had gone to Kotla Mubarakpur market with his friend Vinod. There was some gathering in the market in front of the park, where, he saw one person was quarreling under the influence of liquor. He identified that person as the accused. He further stated that after 08-10 days of the incident, he met the accused in a shoes shop at Mehrauli market, where, the accused told him that police had levelled false case of fake currency notes upon him. In his cross-examination, he could not tell the name of the shop from where he had purchased the shoes and had met the accused. He also stated that he had not made any complaint to any authority regarding false implication of the accused in the present case.
9. Ld. Addl. PP has argued that the Prosecution has been able to prove its case beyond all reasonable S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 7/15 doubts. The currency notes were proved to be fake. The testimony of the witnesses make it clear that the accused was found in possession of 100 counterfeit currency notes of Rs.100/- each, each having the same Sl. No. i.e. 4 FT 424919, and thus, all the ingredients of the offence under Section 489-C IPC are fulfilled, and hence, the accused may be convicted of the offence. Regarding the deposition of DW-1 Salim Khan, it has been stated that the version given by the defence, is improbable as although the meeting has been shown after eight days of the incident, yet, no complaint with regard to the false involvement was made by this witness to any authority and this inaction in itself belies the defence raised by the accused.
10. On the other hand, Ld. Counsel for the accused has stated that the accused, when in drunken condition, had an altercation with the police officials on 16.07.2004 at Kotla Mubarakpur market, and he has been falsely implicated in this case of possession of fake currency notes. It has been argued that the very presence of S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 8/15 the PW-2 HC Devender is doubtful as his signatures appear neither on the Seizure Memo nor on the Disclosure Statement of the accused. There are interpolation of the dates on Arrest Memo and Personal Search Memo, where, the date 17.07.2004 has been changed to 18.07.2004. No public witness has been involved in the recovery, although, the incident of recovery of fake currency notes allegedly took place near a park at around 7.30pm in the month of July when generally, public goes to parks. It has further been argued that according to the alleged disclosure statement of the accused, he had received the fake currency notes from one Shaukat Ali of Agra, but, there is no investigation in this regard by the police, on record. It has been also argued that the presence of the accused at Kotla Mubarakpur market and an altercation with the police on 16.07.2004 has been proved by DW-1 Salim Khan. As such, Ld. Counsel for the accused has prayed for acquittal of the accused.
S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 9/15
11. I have heard both the sides and record have been perused. Section 489-C of Indian Penal Code reads as under:
"Possession of forged or counterfeit currency-notes or bank-notes - Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
12. One of the necessary ingredients of an offence under Section 489-C IPC is that the accused must be in possession of the counterfeit currency notes. Deposition of PW-1 Sh. S.C. Gupta shows that the currency notes which were sent to him for examination, were fake. However, the question which arises to be decided, is whether the counterfeit currency notes were found in possession of the S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 10/15 accused? To prove the possession of counterfeit currency notes from the accused, the Prosecution examined three witnesses namely: PW-2 HC Devender, PW-3 HC Hoshiyar Singh and PW-5 Insp. Sunil Bhardwaj. According to the Prosecution, the secret information about a person standing near the Ladies Park with fake currency notes, had been received at 7.30pm when the aforesaid three witnesses were patrolling at CGHS Dispensary. The witnesses have stated that no public person was found present at the spot. The spot is stated to be a public park and it is hard to believe that no public person was found at the spot unlike stated as in Delhi in July month, generally, lot of public persons are found in and around the parks. The presence of PW-2 HC Devender also became doubtful at the spot as his signatures do not appear on the Seizure Memo of the accused. If he was present at the spot, when the accused was searched and the counterfeit currency notes were recovered from his possession and he was arrested subsequently, his signatures would have naturally appeared on the Seizure Memo of the S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 11/15 counterfeit currency notes in question. EX. PW-2/B is Arrest Memo of the accused and on this Arrest Memo, the date of FIR has been overwritten and the date '17' has been overwritten as '18'.07.2004. Similarly, date of arrest has been interpolated from '17' to '18'.07.2004 in the Arrest Memo EX.PW2/B. EX.PW2/C is the Personal Search Memo of accused. On this Memo also there are interpolations on dates at two places where date '17' has been changed to '18'.07.2004. No explanation much less plausible, has been offered for the interpolation of dates at four places as noted above. Apart from it, it is also doubtful as to who had gone for getting the randomly picked 10 counterfeit currency notes photocopied. Regarding the photocopies, PW-2 HC Devender Kumar has stated in his cross-examination that he had not gone for photocopy. He said "I did not go for photocopy". To a specific question as to who had gone to get the photocopies done, he replied that "I cannot tell who had gone for getting the photocopies done of the said currency notes. I cannot tell the time of his S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 12/15 departure from the spot". PW-3 HC Hoshiyar Singh stated in his cross-examination that "Ct. Devender went to get the photocopies of the said currency notes done before taking the rukka". PW-5 Insp. Sunil Bhardwaj in his examination- in-chief said that - "Ct. Hoshiyar Singh was sent to get the photocopy of the said notes done". There is no corroboration in the statement of witnesses regarding the person who had gone for photocopying. It is not clear as to who was sent for the photocopying. Insp. Sunil Bhardwaj deposed that Ct. Hoshiyar Singh was sent for this purpose, whereas Ct. Hoshiyar Singh says that Ct. Devender was sent for this purpose and Ct. Devender stated that he had not gone for the photocopy. Then, who had gone for getting the fake currency notes photocopied? Apart from it, PW-2, PW-3 and PW-5 deposed about presence of an electricity pole at the spot, but no such electricity pole was depicted in the site plan EX.PW5/B. PW-5/IO could also not give any satisfactory answer for not showing the electricity pole in the site plan. The Prosecution case also becomes doubtful, S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 13/15 as according to the disclosure statement of the accused, he had received the counterfeit currency notes from Shaukat Ali of Agra, whom the accused could get arrested and get more counterfeit currency notes recovered from him. There is nothing in the charge sheet as to the steps taken by the police pursuant to the disclosure to apprehend the said Shaukat Ali. Silence of the police in this regard leads to the inference that no steps were taken by them in this regard. Thus, the entire story of the accused receiving the counterfeit currency notes from Shaukat Ali and offer of the accused to get Shaukat Ali apprehended, is shrouded in haze and becomes extremely doubtful. The defence of the accused is that he has been falsely implicated in this case by the police as he had a quarrel with the police when he was under influence of liquor on 16.07.2004 at Kotla Mubarakpur and he also produced DW-1 Salim Khan who deposed about this quarrel on 16.07.2004. It is trite that Prosecution has to prove its case beyond all reasonable doubts. Seeing the evidence produced by the Prosecution in S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 14/15 this case, I am convinced that the Prosecution has not been able to prove its case beyond all reasonable doubts. The accused is thus entitled to be acquitted.
13. Accused is thus acquitted of the charge under Section 489-C IPC.
14. File be consigned to Record Room.
Announced in the open court. (RAJEEV BANSAL)
Dated: 16.04.2012 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 3/11 FIR No.324/04 "State Vs. Ali Sher" 15/15