Delhi District Court
State vs . (1) Aftab S/O Afzal on 5 March, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 116/2011
Unique Case ID: 02401R5979752004
State Vs. (1) Aftab S/o Afzal
R/o Kasba Manglore,
Mohalla Bandertol,
Distt. Haridwar,
Uttarakhand.
(Acquitted)
(2) Shahzad S/o Habib Ahmed
R/o Kasba Manglore,
Mohalla Bandertol,
Distt. Haridwar,
Uttarakhand.
(Acquitted)
(3) Sanjay Kumar
S/o Ramanand
(Discharged on 2.7.2010)
(4) Ashok Kumar
S/o Chottey Lal Prasad
(Discharged on 2.7.2010)
FIR No. : 318/2003
Under Section : 489 C & E Indian Penal Code.
Police Station : Adarsh Nagar
State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 1 of 33
Date of committal to Sessions Court : 19.12.2009
Judgment reserved on : 15.2.2012
Judgment pronounced on : 5.3.2012
JUDGMENT
Brief Facts:
As per the allegations prior to 12.8.2003 the accused Aftab and Shahzad purchased 36 petties of apples from M/s Vijay Kumar & Sons, B7/16, New Sabzi Mandi, Azadpur and paid in cash and when the representative of Vijay Kumar & Sons deposited the cash on the same day at Central Bank of India, Subzi Mandi, Adarsh Nagar, it was detected that 88 currency notes of denomination 500 having value Rs.44,000/ were counterfeit currency notes. It is alleged that both Aftab and Shazad had knowledge but they used and delivered these counterfeit notes as genuine to Vijay Kumar in furtherance of their common intention and thereby they both committed the offence under Section 489C/489E/34 Indian Penal Code.
Case of prosecution in brief:
The case of the prosecution in brief is that on 12.8.2003 the complainant Ram Chander Verma, Branch Manager, Central Bank of India, New Sabzi Mandi, Azadpur, lodged a complaint at Police Station Adarsh Nagar wherein he stated that on 12.3.2003 in current account no. 2660 of M/s Vijay Kumar & Sons, B760, New State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 2 of 33 Sabzi Mandi, Azadpur, Rs.2,04,000/ was deposited by their representative and the details of the currency notes was 98 notes of Rs.500/ denomination, 950 notes of Rs.100/ denomination, 1100 notes of Rs.50/ denomination, 200 notes of Rs.20/ denomination and 100 notes of Rs.10/ denomination. According to the complainant on checking the said currency notes by the Cashier of the Bank, it was found that 88 currency notes of Rs.500/ denomination having total value of Rs.44,000/ were counterfeit. On the basis of this complainant, the investigations were initiated and the accused Aftab, Shahzad, Sanjay Kumar and Ashok Kumar were arrested and after completing the investigations, the charge sheet was filed in the court. Thereafter, at the stage of framing of the charge, the Ld. Predecessor of this court vide a detailed order dated 2.7.2010, discharged the accused Sanjay Kumar and Ashok Kumar. CHARGE:
Ld. predecessor of this court settled charges under Section 489C and Section 489E read with Section 34 of Indian Penal Code against both Aftab and Shahzad to which they pleaded not guilty and claim trial.
EVIDENCE:
In order to discharge the onus, the prosecution has examined as many was eleven witnesses.
State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 3 of 33 Public Witnesses:
PW2 Ram Chander Verma has deposed that on 12.8.2003 he was posted as Senior Manager at Central Bank of India, New Subzi Mandi and on that day the cashier of the bank Raj Kumar informed him that he has received 88 currency notes of Rs.500/ denomination and these currency notes seems to be fake. According to this witness, Raj Kumar further told him the name of depositor as Vijay Kumar of M/s Vijay Kumar & Sons, Subzi Mandi. The witness has deposed that he personally checked those currency notes and found that they differed from the originals and the said currency notes were having number in four series. According to him the total deposit money was two lakhs four thousand and out of which 98 currency notes were of denomination of Rs.500/ and out of 98 currency notes, 88 currency notes appeared to be fake in four series.
The witness has further deposed that he thereafter prepared a complaint in this regard and also prepared the series of the currency notes and handed over the same at police station Adarsh Nagar which complaint is Ex.PW2/A. He has deposed that the details of the currency notes is four series were 3AF, 4AP, 7AB and 9AC which is Ex.PW2/B. He has further deposed that the police came to the bank and seized the total 88 fake currency notes of the denomination of Rs.500/ in four series vide memo Ex.PW2/C. He has deposed that the depositor Vijay Kumar was also examined by the police. State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 4 of 33 According to the witness, he also handed over the certified copy of the pay slip regarding deposit of Rs.2,04,000/ of the denomination of Rs.500/, Rs.100/, Rs.50/, Rs.20/ and Rs.10/ which was deposited by Vijay Kumar and the said certificate is Ex.PW2/D. He has further deposed that application form for account opening of Vijay Kumar & Sons is Ex.PW2/E. The witness has correctly identified the 88 currency notes in the court in the denomination of Rs.500/ in four series i.e. 3AF, 4AP, 7AB and 9AC which are collectively Ex.PA. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
PW3 Raj Kumar has deposed that on 12.8.2003 he was posted as Cashier in Central Bank of India, New Subzi Mandi, Azadpur branch and on that day Vijay Kumar of M/s Vijay Kumar & Sons Co. deposited Rs.2,04,000/ in his current account bearing no. 2660. According to the witness, the said currency notes were in denomination of 98 notes were of Rs.500/, 950 notes were of denomination of Rs.100/, 1100 notes were of denomination of Rs. 50/, 200 notes were of denomination of Rs.20/ and 100 currency notes were of denomination of Rs.10/. The witness has deposed that he checked these currency notes and found that 88 currency notes from 98 notes of Rs.500/ were fake and he immediately informed the branch manager Sh. R.C. Verma about the same who prepared a State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 5 of 33 complaint and sent the same to police station Adarsh Nagar. The witness has further deposed that thereafter the police came to the bank and seized all 88 fake currency notes vide memo Ex.PW2/C and the paying slip filled by Vijay Kumar vide Ex.PW2/D. The witness has correctly identified in the court the 88 currency notes with the denomination of Rs.500/ in four series i.e. 3AF, 4AP, 7AB and 9AC which are collectively Ex.PA. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
PW4 Jatin Bhatia has deposed that his father Vijay Kumar Bhatia is into the trade of fruits at Azadpur mandi. According to him on 26.8.2003, he went to Police Station Adarsh Nagar and obtained 39 petties of the apple on superdari and his statement was recorded which is Ex.PW4/A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
PW5 Vijay Bhatia has deposed that in the year 2003 he was running a shop of Aadat at B760, New Subzi Mandi, Azadpur in the name and style of M/s Vijay Kumar & Sons. According to him on 11.8.2003, Aftab and Shahzad came to him and purchased 128 petties of apple and for the same he charged Rs.44,900/. The witness has deposed that the said amount was containing 88 notes of Rs.500/ denomination and 9 notes of Rs.100/ denomination. The witness has State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 6 of 33 further deposed that on 12.8.2003 the amount Rs.44,900/ which was given by Aftab and Shahzad along with other earnings totalling to Rs.2,04,000/ which was taken to Central Bank of India, New Subzi Mandi Branch and the amount was got deposited by him with the cashier in account no. 2660. According to the witness, the cashier of the bank told him that 88 currency notes of Rs.500/ were forged and the total amount was Rs.44,000/ which amount of given to him by accused Shahzad and Aftab. The witness has deposed that both the accused Aftab and Shazad used to visit his shop prior to the incident for purchasing the fuirts. He identified both the accused in the court. According to him, on 14.8.2003, at his instance the accused Aftab and Shahzad were arrested by the police from Tamatar Mandi, NS mandi, Azadpur vide memo Ex.PW5/A and Ex.PW5/B and they were personally searched vide memo Ex.PW5/C and Ex.PW5/D. The witness has further deposed that during formal search of accused Shahzad, one currency note of Rs.500/ which was looking like original but it was forged and it was the same serial which was given to him at the time of purchasing the apple by the accused persons. He has deposed that the currency note was photocopied and then turned into cloth parcel and sealed and taken into possession by the police vide memo Ex.PW5/E. According to the witness, on formal search of accused Aftab, one currency note of Rs.100/ denomination which was seemed to be forged was recovered which note was also State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 7 of 33 photocopied and taken into possession by the police vide memo Ex.PW5/G. The witness has deposed that thereafter the accused were arrested vide memos Ex.PW5/H and Ex.PW5/I. He has placed on record the sale bill issued by him to the accused in respect of apple which bill is Ex.PW5/J and the photographs of the 39 petties of apple are Ex.PW5/K and Ex.PW5/L which petties were purchased by him from Grover Apple Centre vide bill Ex.PW5/M. The witness has identified the 88 currency notes with denomination of Rs.500/ having series AC, 9AC, 4AP, 7AB and 3AF, as the same which were given to him by the accused which currency notes are Ex.PA. The witness has also identified the currency note of series 9AC of Rs.500/ denomination which is Ex.PB, as the same which was recovered from the accused Shahzad and also the currency note of series 4 GB 320552 of Rs.100/ denomination which is Ex.PC, as the same which was recovered from the accused Aftab.
In his cross examination by Ld. Defence Counsel, the witness has deposed that on the day of incident the accused came to purchase apple for the second time. According to him he himself received the payment of Rs.44,000/ from the accused. He admits that other customers had also purchased apples from him on that day but has claimed that no other customer made payment on that day. According to him he was alone at the shop on that day. He has State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 8 of 33 deposed that on the next day when he deposited cash of Rs.2,04,000/ with Central Bank then this payment was also included earlier payment received prior to the day of purchase by accused persons. He has further deposed that he deposited different denomination bundles of total amount of Rs.2,04,000/ like one bundle of currency notes of Rs.500/ and currency notes of denomination of Rs.100/ in the bank. According to the witness he was called by the police on 11th or 12th August 2003. He further deposed that on 12.8.2003 he along with three four police officials went to the Mangalore, Haridwar in a police vehicle and reached there on early hours on 13.8.2003 but the accused could not be found there and thereafter they returned to Delhi. The witness has further deposed that the accused were arrested during day time but no public person was present there at that time. Witness is unable to tell the name of police officials who conducted the personal search of accused Aftab. According to the witness the police officials did not offer their search prior to the search of accused Aftab and Shahzad. The witness has further deposed that the photographer was called by the police for taking the photographs of 39 cartons of apples. According to the witness he remained at the spot for about one hour but police did not call any public person to join the proceedings. He denied the suggestion that accused did not pay him Rs.44,000/ by way of fake currency notes or that the alleged recovered fake currency notes were State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 9 of 33 received by him from some other person.
PW7 M. D. Bagul, Deputy Works Manager, Currency Note Press, Nasik Road has deposed that the referred suspected notes of 500 denomination received in his office in a sealed condition from HC Vijender Singh of Delhi Police. He has deposed that he examined 89 currency notes of the denomination of Rs.500 and after examination he had submitted his details report is which is Ex.PW7/A. According to him he also examined one currency note of the denomination of Rs.100 and after examination he submitted his detail report is which is Ex.PW7/B. The witness has deposed that as per his report all the aforesaid currency notes were counterfeit. The receipt by which the sealed parcels were received in the office is Ex.PW7/C. The witness has deposed that his both the aforesaid reports were forwarded to Ld. Magistrate, Tis Hazari Courts, Delhi vide forwarding letter Ex.PW7/D bearing the signatures of Sh. M. P. Dhandey at point A. According to the witness, Sh. M. P. Dhandey has retired from the service but he can identify his signatures at point A on Ex.PW7/D as he has seen him while writing and signing in due course of official duty.
In his cross examination by Ld. Defence Counsel, the witness has deposed that as per record the aforesaid parcels were received in the office on 16.09.2003. According to him there were three envelops in which the aforesaid currency notes were sent to State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 10 of 33 their office and parcels were duly sealed with the seal of SPS which was intact. He has denied the suggestion that the aforesaid parcels were not having intact seal. He has further denied that he had given the report Ex.PW7/A and Ex.PW7/B wrongly at the behest of the IO. According to the witness in the present case the currency notes were checked thoroughly by checking the quality of the paper, ink, design by using magnifiers and other scientific tools to check the quality of the paper and ink on the basis of which the conclusion have been reached. He has denied that he has not seen Sh. M. P. Dhandey while working in the office and has voluntarily stated that Sh. M. P. Dhandey was his immediate boss and he has seen him while writing and signing. He has denied the suggestion that the opinion have been given on the instructions of the Investigating Officer.
Police / Official Witnesses:
PW1 HC Balkishan has deposed that on 12.8.2003 he was posted at duty officer and at about 7:5 PM he received a complaint from Central Bank of Indian through Ct. Mahender and on instructions of SHO, he recorded the present FIR copy of which is Ex.PW1/A. He also made endorsement upon the rukka which is Ex.PW1/B. This witness has not been cross examined on behalf of the accused.
State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 11 of 33
PW6 HC Tej Ram has deposed that on 12.08.2003 he was working as MHC (M) at Police Station Adarsh Nagar and on that day ASI Sahastra Pal had deposited one parcel having the seal of SPS containing 88 currency notes of the denomination of Rs.500. He received the same vide entry no. 3134 of register no.19 the photocopy of the same is Ex.PW6/A running into one page. According to the witness on 14.08.2003 ASI Sahastra Pal had deposited 39 wooden boxes containing apples, one sealed parcel containing currency note of Rs.100 duly sealed with the seal of SPS and another parcel containing one note of Rs.500 duly sealed with the same seal, three parcels containing Rs.170/, 150/ and Rs.60/ as recovered from the accused Mohd. Shahzad, Mohd Aftar and Sanjay Kumar respectively. He received the same vide entry No. 3140 of Register No.19 photocopy of the same is Ex.PW6/B running into two pages. The witness has further deposed that on 10.09.2003 he sent three sealed parcels containing the aforesaid currency notes to Nasik Laboratory through HC Vijender Singh vide RC No. 93/21/03 copy of the RC is Ex.PW6/C. He has not been cross examined on behalf of the accused despite opportunity and the entire testimony of this witness has gone uncontroverted.
PW8 HC Bijender has deposed that on 12.08.2003 he was posted at Police Station Adarsh Nagar and on that day he along with ASI Sansar Pal remained busy in the investigation of this case. State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 12 of 33 According to him, they both along with Ct. Jai Pal went to the house of accused Shahzad and Aftab at Manglore, Distt. Haridwar for their search but they could not be traced. Thereafter, on 14.08.2003 he along with ASI Sansar and Ct. Jai Pal reached at Subzi Mandi where one Vijay Bhatia met them and pointed out towards three persons who were selling the apples in the Subzi Mandi as the persons who had purchased the apples and had given the money one day prior to that day. The witness has further deposed that they apprehended all the three accused persons namely Shahzad, Aftab and Vijay and the accused were formally searched and one note of Rs.500/ which appeared to be counterfeit, was recovered from the accused Shahzad and Rs.170/ were also recovered from his personal search. According to the witness one counterfeit currency note of Rs.100/ was recovered from the accused Aftab. He has further deposed that on 10.09.2003 he took three parcels which were duly sealed with the seal of SPS from MHC(M) to Currency Note Press, Nasik Road and handed over the same to the official vide receipt Ex.PW7/C. He has deposed that the aforesaid pullandas were containing 88 notes of denomination of Rs.500/, one currency note of Rs.100/ and one pullanda containing Rs.500/. According to the witness he took the said parcels to the said office vide RC No. 93/21/03 and no tampering was done while the aforesaid exhibits remained in his possession. The witness has correctly identified the accused Aftab in State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 13 of 33 the court (the identity of accused Shahzad was not disputed by Sh. Vijay Kumar Sharma, Advocate for accused).
In his cross examination by Ld. Defence Counsel the witness has deposed that he was directed by the SHO to join the investigation of this case along with ASI Sansar Pal after which they left the police station on 12.08.2003 at about 7.008.00 PM after making departure entry by the IO. According to him they went to Manglore, Distt. Haridwar in a private vehicle i.e. TATA SUMO but he is unable to give the registration number of the said vehicle. He is also unable to tell the house number and gali number of accused persons but states that he can point out the house of the accused. He has deposed that they had gone to the house of the accused persons also and father of one accused met them in the house but he is unable to tell as to whose father he was. According to him firstly they had gone to the house of Shahzad and thereafter they had gone to the house of Aftab but nothing incriminating was recovered from the house of the accused persons. Thereafter they came back to Delhi on the next day i.e. on 13.08.2003 when IO might have done the arrival entry at the police station. Witness has denied the suggestion that he did not go anywhere therefore his signature was not taken on any document by the IO. He has admitted that except the Jamatalashi no other article was recovered from the accused persons in his presence. According to him he had gone to Nasik by train and voluntarily State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 14 of 33 added that he had gone Mumbai firstly by train and from Mumbai he had changed the train for Nasik. According to him he reached at Nasik on 16.09.2003 and returned back to Delhi on 19.09.2003. Witness has denied that the pullanda which he took to Nasik was not duly sealed with the seal of SPS.
PW9 HC Parveen has deposed that on 02.02.2004 he was posted at PP New Subzi Mandi, Azadpur, PS Adarsh Nagar as constable. According to him on that day he received the process U/s 83 Cr. P. C. of accused Ashok Kumar Prasad from the court of Ms. Preeti Aggarwal Gupta Ld. MM, Rohini Courts. He has further deposed that on 07.02.2004 he went to village Semra Bazar, Distt.
Betia Paschim Champaran, Bihar. According to him firstly he went to local police station and took ASI Nirmal Lakra from the Police Station and thereafter went to the house of accused Ashok Kumar Prasad where the father of accused Ashok Kumar Prasad namely Chhotey Lal met him and has stated that he does not know the whereabouts of the accused. He has further deposed that there was no movable or immovable property in the name of accused Ashok Kumar Prasad in the village. Thereafter, he came back to Delhi and his statement in this regard was recorded by SI Yashbir Singh who was investigating officer of this case at that time. The witness has not been cross examined on behalf of the accused.
State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 15 of 33
PW10 SI Sansar Pal has deposed that on 12.08.2003 he was posted at police station Adarsh Nagar as ASI and on that day complainant Ram Chander Verma, Manager of Central Bank of India, NS Mandi had come in the police station and handed over a complaint which is Ex.PW2/A along with Ex.PW2/B to the SHO. Witness has deposed that the SHO marked the same to the Duty Officer for getting the case registered and after registration of the case the investigation was handed over to him. The witness has deposed that he took the manager Sh. Ram Chander Verma and cashier Sh. Raj Kumar from the police station and went to Central Bank, Subzi Mandi Branch. He further deposed that the Bank Manager Ram Chander Verma had produced 88 counterfeit currency notes of the denomination of Rs.500/. According to the witness he converted the said currency notes into parcel and sealed the same with seal of SPS and took the said parcels into possession vide seizure memo Ex.PW2/C. He thereafter recorded the statements of Sh. Raj Kumar and Sh. Ram Chander Verma, U/s 161 Cr. P. C. and they were relieved. Thereafter, he along with HC Bijender and Ct. Jai Pal reached at M/s Vijay Kumar and Sons, Subzi Mandi where owner of M/s Vijay Kumar and sons namely Sh. Vijay Kumar met them. According to the witness, he made enquiries from him to which had stated that that he knew the persons who had purchased the apples from him and made the payment for the apples to him. The State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 16 of 33 witness has further deposed that he has further told him that those persons were resident of Manglore, Distt. Haridwar and he could identify and get them arrested. On 12.08.2003, he along with HC Bijender, Ct. Jai Pal Singh, Ct. Ashok and Vijay left for Manglore in a private vehicle and reached at Post post Manglore from where took one constable from the chowki. He has further deposed that on making enquiries they reached at the house of Shahzad and Aftab in Bandar tolla Mohalla, Manglore. The witness has further deposed that from the house of accused persons he came to know that both accused Shahzad and Aftab had gone to Delhi to purchase some goods and thereafter, they came back to Delhi. He recorded the statement of Sh. Vijay Bhatia and directed him to inform the police whenever he received any clue of whereabouts of the accused persons.
The witness has further deposed that on 14.08.2003 he received a phone call from Vijay Bhatia who informed him that three boys who had purchased the apples on 12.08.2003 from him were selling apples in Tomato Mandi. According to him along Vijay Bhatia met them in the Mandi and pointed out toward three accused persons who were selling apples in the Mandi were the same persons who had purchased the apples from him on 12.08.2003 and at his instance all the three accused persons were apprehended. According to the witness 39 petties of apples were recovered from them. He State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 17 of 33 took the entire 39 petties containing apples into possession vide seizure memo Ex.PW5/G. He deposed that the accused Shehjad was arrested in this case vide memo Ex.PW5/A and he was personal searched vide memo Ex.PW5/C. He has deposed that the accused Aftab was arrested vide memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/D. He has further deposed that Rs.170/ were recovered from the personal search of the accused Shehjad, Rs 150/ was recovered from accused Aftab and Rs 60/ were recovered from accused Sanjay. According to the witness thereafter the disclosure statements of the accused was recorded. The witness has further deposed that one currency note of Rs 500/ was also recovered from the accused Sahajad which was appeared to be forged one. He converted the said currency note bearing No. 9AC230305 into parcel and sealed the same with the seal of SPS and the said parcel was taken into possession vide seizure memo Ex.PW5/E. According to the witness, one currency note of Rs 100/ bearing No. 4GB320552 into parcel and sealed the same with the seal of SPS and was taken into possession vide seizure memo Ex.PW5/F. He has deposed that thereafter he collected the slip of "Grover's apple center" which is Ex.PW5/M, Cash Memo Ex.PW5/J, the petties of apples were also photographed vide photograph Ex.PW10/D. He has further deposed that on 10.09.2003 State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 18 of 33 he sent three sealed parcel containing currency notes to India security press Nasik through HC Bijender vide RC No. 93/21/03 who after getting the same deposited handed over the receipt to him. The witness has correctly identified in the court the accused Aftab and Shahzad as well as the case property i.e. currency notes Ex.PA, Ex.PB and Ex.PC.
In his cross examination by Ld. Defence Counsel, the witness has deposed that on 12.08.2003 he was on emergency duty from 8AM to 8PM. He admits that the complainant Sh. Ram Chander Verma had not produced the complaint in his presence. He has deposed that the investigations of this case was handed over to him at about 7:30 PM. He made departure entry in the rojnamcha when he left for the Bank. According to him Vijay Bhatia was also present in the bank when he prepared the parcels and took about one hour in preparing pullandas and thereafter he brought Vijay Kumar to the police station with him. Witness has denied the suggestion that he did not prepared the pullandas or that he did not prepare the documents in the bank. He has deposed that they left Delhi at about 1011 PM for Mangalore, District Haridwar in a private car but he does not remember the description of said car. According to the witness first of all they went to police station and from there they went to police post Subzi Mandi, Mangalore where they met I/C police post but he does not remember his name. He has deposed that State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 19 of 33 they took one constable from the chowki whose name he does not remember. According to him the wife of accused Aftab informed him that her husband had gone to Delhi along with accused Shahjad to purchase some goods and thereafter they left police station Mangalore at about 910 AM and reached Delhi at about 78PM. The witness has deposed that the phone of Vijay Bhatia had come at about 99:30 AM in the police station. He has denied that the aforesaid boxes containing apples were not recovered from the accused persons. He further denied that they received the aforesaid boxes of apples from Vijay Bhatia and thereafter same were planted upon the accused persons. The witness has further denied the suggestion that the currency notes of Rs 500/ and Rs 100/ were also not recovered from the accused persons or that the same were planted one. According to him no other articles except the jamatalashi mentioned above were recovered from the personal search of accused persons. He has denied that he obtained the signatures of accused persons and thereafter the said papers were converted into disclosure statements and seizure memos later on. He has further denied that all the documents were prepared while sitting in the police station and not at the respective place. The witness has admitted that he had recorded the statement of Bijender only with regard to taking exhibits to India Security Press, Nasik Road which was recorded on 19.09.2003 and not regarding his participation in the investigations State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 20 of 33 prior to that. He has denied the suggestion that he did not conduct the investigations of this case fairly or that accused persons have been falsely implicated in the present case. He further denied that no recovery has been effected from the accused persons or that the aforesaid currency notes have been planted upon the accused persons.
PW11 Insp. Yashvir Singh has deposed that on 21.12.2003 he was posted at Police Station Adarsh Nagar as Incharge PP New Subzi Mandi and further investigations of this case was handed over to him. He collected the account opening form from the Central Bank of India, Suzbi Mandi Branch which is Ex.PW2/A running into two pages and the deposit slip of account No. 2660 which is pertaining to account of M/s Vijay Kumar and sons which is Ex.PW2/D and the aforesaid documents were taken into possession by him vide memo Ex.PW11/A. According to the witness, he also collected the result from MHC (R) which he received from India Security Press Nasik road which is Ex.PW7/A and Ex.PW7/B along with forwarding letter Ex.PW7/D and thereafter the supplementary charge sheet was prepared in this case. This witness has not been cross examined on behalf of the accused despite opportunity. Statement of Accused and Defence Evidence:
After completing the prosecution evidence, statements of State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 21 of 33 accused Aftab and Shahzad were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material were put to them which they have denied and have stated that they are innocent and have been falsely implicated. However, they have not examined any witness in defence. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and have gone through the written memorandum of arguments field on behalf of the accused. My findings are as under: Identity of the accused:
The case of the prosecution is that the accused before this court namely Aftab and Shahzad have visited the shop of complainant Vijay Bhatia at Azadpur Mandi and purchased 128 petties for total payment of Rs.44,900/ made by the accused. PW5 Vijay Bhatia in his testimony has specifically deposed that the total amount of Rs.44,900/ has been given to him by Aftab and Shahzad. He has also stated that both these accused have been visiting his shop even prior to this incident for purchasing the fruits and therefore he identified them. He has also testified that on 14.8.2003 he told the State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 22 of 33 police that both the accused were present at Tamatar mandi, New Subzi mandi, Azadpur and at his instance and pointing out the were apprehended and arrested by the police. He has identified both Aftab and Sahzad in the court. Under these circumstances, I hold that the identity of both the accused Aftab and Shahzad stands established. Apprehension and Arrest of the Accused:
Case of the prosecution is that on receipt of the information from Vijay Bhatia (PW5) on 14.8.2003, the police party reached at Tamatar Mandi, NS Mandi Azadpur and on the pointing out of Vijay Bhatia, apprehended the accused Aftab and Shahzad vide memos Ex.PW5/A and Ex.PW5/B and their personal search was conducted vide memo Ex.PW5/C and Ex.PW5/D, which fact stands proved in accordance with law and has not been effectively controverted by the accused. This being the background, I hold that the apprehension and arrest of both the accused Aftab and Shahzad stand established.
Allegations against the accused:
The case of the prosecution is that on 12.8.2003 the cashier of Central Bank of India, New Sabzi Mandi was handed over Rs.2,04,000/ for depositing in current account no. 2660 out of which 98 currency notes were of Rs.500/ denomination, 950 currency State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 23 of 33 notes were of Rs.100/ denomination, 1100 currency notes were of Rs.50/ denomination, 200 currency notes were of Rs.20/ denomination and 100 currency notes were of Rs.10/ denomination.
On checking of these currency notes, 88 currency notes were found to be fake on which a complaint which is Ex.PW2/A was made by the Manaer of the Bank to the police along with details of the currency notes vide Ex.PW2/B. The relevant portion of the testimony of Raj Kumar (PW3) is as under:
" On 12.8.2003 I was posted as cashier in Central bank of India, Branch New Sabzi Mandi, Azadpur. On that day, I was present on the case counter. Mr. Vijay Kumar of M/s Vijay Kumar & Sons Co.
came to the counter and handed over Rs.
2,04,000/ for depositing in his current account no. 2660. The notes were in the denomination of 98 currency notes were of Rs.500/, 950 notes were of denomination of Rs.100/, 1100 currency notes were of denomination of Rs.50/, 200 currency notes were of denomination of Rs.20/ and 100 currency notes were of denomination of Rs.10/. I checked the currency notes and found that 88 currency notes from 98 note of Rs.500/ were fake. I informed the branch manager Sh. R. State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 24 of 33 C. Verma. He prepared a complaint and sent it to PS Adarsh Nagar. Police reached in the bank and R. C. Verma, Bank Manager produced 88 fake currency notes of denomination of Rs.500/ to the police which were handed over to the branch Manager by me. Police prepared the parcel and sealed and taken into possession. My signature were also taken in seizure memo. Same is Ex.PW2/C signed by me at point B. ..."
Now coming to the testimony of PW2 Ram Chander Verma relevant portion of which is as under:
" On 12.8.2003, I was posted as Sr. Manager at Central Bank of India, New Sabzi Mandi, Delhi. On that day, my cashier Raj Kumar told me in the bank that he has received 88 currency notes of Rs.500/ denomination and these currency notes seems to be fake. He further told the name of the depositor as Vijay Kumar of M/s Vijay Kumar & Sons, Sabzi Mandi. I also personally checked the currency notes and found that they were differ from the original currency notes. The currency notes were having number in four series. Total deposit money was two State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 25 of 33 lakhs four thousand and out of which 98 currency notes were of denomination of Rs.500/ and out of 98 currency notes, 88 currency notes seems to be fake in four series. I prepared a complaint in this regard and also prepared the series of the currency notes and handed over to the police of PS Adarsh Nagar. My complaint is Ex.PW2/A signed by me at point A. The details of the currency notes in four series were 3AF, 4AP, 7AB and 9AC is Ex.PW2/B. Police came to the bank and seized total 88 fake currency notes of the denomination of Rs.500/ in four series and turned into a cloth parcel and seized vide memo Ex.PW2/C signed by me at point A. Vijay Kumar was also enquired by the police. I also handed over certified copy of paying slip about depositing of Rs.2,04,000/ of the denomination of Rs.500/, Rs.100, Rs.50/, Rs.20/ and Rs.10/ which was deposited by Vijay. Certified copy of paying slip is Ex.PW2/D attested by me at point A with seal impression. Application form for account opening form of Vijay Kumar & Sons is Ex.PW2/E attested by me at point A in two pages. Police recorded my statement. ..."
State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 26 of 33
Both the above witnesses i.e. cashier Raj Kumar (PW3) and Sr. Manager Ram Chander Verma (PW2) have identified the 88 currency notes of denomination of Rs.500/ having four series i.e. 3AF, 4AP, 7AB and 9AC, as the same which were deposited by Vijay Kumar (PW5) in their bank on 12.8.2003. The person who handed over these currency notes to the cashier is Vijay Kumar (PW5) according to whom, the said currency notes were given to him by the accused Aftab and Shahzad. The relevant portion of testimony of Vijay Kumar (PW5) is as under:
" In the year of 2003 I was running a shop of Aadat at B760, New Subzi mandi, Azadpur with the name and style of M/s Vijay Kumar & Sons.
On 11.08.03, Aftab and Shahzad came to me and purchased 128 pettis of apple. I charged Rs. 44,900/ for the apple pettis. I checked that 88 notes of Rs.500/ and 9 notes of Rs.100/. On 12.8.03 the amount Rs.44,900/ which was given by Aftab and Shahzad to me and other earnings total amount of Rs.2,04,000/ was taken to Central Bank, NS Mandi, Transport Centre, Azadpur. The amount was got deposited by me with the cashier for depositing in my account no. State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 27 of 33 2660. Cashier told me that 88 currency notes of Rs.500/ were forged. Total amount was Rs.
44,000/ and that amount was given by accused Shahzad and Aftab. They used to visit my shop prior to incident for purchasing fruits. I identify both the accused present in the court today. Witness has correctly identified the accused persons. Police recorded my statement. ..."
The deposition of said currency notes in the Malkhana has been duly proved by the police witnesses and HC Tej Ram (PW6) proved that the said notes were sent to Nasik Laboratory through HC Vijender Singh for the purposes of examination. PW7 M. D. Bagul has duly proved that the said notes were sent Nashik and he has proved that the said currency notes were fake.
At the very outset, I may observe that the only evident against the accused is the sole testimony of Vijay Bhatia (PW5) which does not find corroboration from any independent source. Firstly, it is evident from the testimony of Vijay Bhatia (PW5) that he has proved having received the payment of Rs.44,900/ and has also admitted that other exporters had also purchased fruits from his shop on the day the accused had made purchase from him. Secondly, Vijay Bhatia claim that he was alone at that time and there State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 28 of 33 was no other person. This being so, the transaction, if any, was not witnessed by any independent person who could have supported the version of Vijay Bhatia to the effect that it was both Aftab and Shahzad who had handed over the currency notes to him. Thirdly, it is the case of Vijay Bhatia that at the time of the transaction he never detected that the currency notes were fake and it was only when allegedly the cashier pointed out about it he (Vijay Bhatia) came to know about the same. Fourthly, it is evident that at the time when the accused Aftab and Shahzad were arrested on the pointing out of Vijay Bhatia, no independent witness has been joined. Also, at the time of the personal search of accused Aftab and Shahzad no public person or neighbour has been joined. It also does not stand established that prior to the search of accused Aftab and Shahzad the police officials have offered their search to the accused. Fifthly, only one fake currency note was recovered from the personal search of both the accused which appears to be strange and not free from suspicion. For persons passing on more than 88 fake currency notes to PW5 (Vijay Bhatia) to be in possession of only one currency note each denomination raises a doubt with regard to the authenticity of the said recovery. Sixthly, it is also the case of the prosecution that after having passed on the 88 fake currency notes to Vijay Kumar on 12.8.2003 both the accused Aftab and Shahzad were found in the same area selling apples. Had that been so, they would not visit the State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 29 of 33 same area. Lastly, even otherwise the prosecution has neither been able to prove the intent or knowledge regarding the possession and use of fake currency notes by the accused Aftab and Shahzad as genuine as contemplated under Section 489 C Indian Penal Code; nor the making or use of the counterfeit currency notes by them as contemplated under Section 489 E of Indian Penal Code beyond reasonable doubt.
Under the given circumstances, it is not safe to rely upon the sole uncorroborated version of Vijay Bhatia (PW5) since he is as much a suspect in the eyes of law as Aftab and Shahzad. There is no other person who is a witness to the incident, and any other evidence which conclusively points towards the guilt of the accused. I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused beyond reasonable doubt. FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 30 of 33 not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused Aftab and Shahzad stands established. It stands established that the currency notes which was handed over by the Manager, Central Bank of India were sent to Nashik Laboratory State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 31 of 33 and the examination report Ex.PW7/A and Ex.PW7/B show that the said currency notes were fake. However, it does not stand established beyond reasonable doubt that the said currency notes were handed over to Vijay Kumar by the accused Aftab and Shahzad. Further, the alleged recovery of fake currency notes from the accused Aftab and Shahzad has not been proved and established. In this background, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Aftab and Shahzad. Crucially, the materials and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Aftab and Shahzad State Vs. Aftab Etc., FIR No. 318/03, PS Adarsh Nagar Page 32 of 33 beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 489C/489E/34 Indian Penal Code.
The sureties of the accused be discharged as per rule. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 05.03.2012 ASJ (NW)II: ROHINI
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